FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN MORALES, Co-Personal No. 17-15215
Representative of the Estate of:
deceased Raymond Perry; NICOLE D.C. No.
PERRY, Co-Personal Representative 3:14-cv-08110-
of the Estate of: deceased Raymond JJT
Perry; CHOPPER II LLC,
Plaintiffs-Appellants,
OPINION
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted March 13, 2018
San Francisco, California
Filed July 13, 2018
2 MORALES V. UNITED STATES
Before: Ferdinand F. Fernandez and M. Margaret
McKeown, Circuit Judges, and Roger T. Benitez, * District
Judge.
Opinion by Judge McKeown
SUMMARY …
Federal Tort Claims Act
The panel affirmed the district court’s dismissal for lack
of subject matter jurisdiction of an action under the Federal
Tort Claims Act (“FTCA”) on the grounds that the United
States Geological Survey (“USGS”)’s decision not to mark
a cable, which allegedly resulted in the crash of a helicopter,
was driven by policy considerations and fell within the
discretionary function exception to the FTCA.
Following the helicopter crash, the estate of pilot
Raymond Perry, who was killed in the crash, and the owner
of the helicopter filed this FTCA action, claiming that the
USGS was negligent for failing to mark the cable.
The FTCA waives the government’s sovereign
immunity for tort claims arising out of negligent conduct of
government employees acting within the scope of
employment. One exception to the waiver of sovereign
immunity, is the discretionary function exception, which
*
The Honorable Roger T. Benitez, United States District Judge for
the Southern District of California, sitting by designation.
…
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MORALES V. UNITED STATES 3
provides immunity from suit for any claim based upon the
exercise of a discretionary duty by a federal agency or
employee.
The panel applied the two-step process, outlined in
Berkowitz v. United States, 486 U.S. 531 (1988), to
determine that the discretionary function exception applied.
First, the panel held that nothing in the USGS’s policy
created a mandatory and specific directive to mark the forty-foot high Verde River cableway, and the policy left
employees with a discretionary choice about which
cableways were hazardous and which should be marked.
Second, the panel held that USGS’s decision was susceptible
to policy analysis grounded in social, economic and political
concerns. The panel rejected plaintiffs’ suggestion that the
government could not invoke the discretionary function
exception whenever a decision involved considerations of
public safety.
COUNSEL
Karen Stafford (argued), Franklin L. Smith, and Scott A.
Salmon, The Cavanagh Law Firm P.A., Phoenix, Arizona,
for Plaintiffs-Appellants.
Benjamin M. Shultz (argued), Robert J. Gross, and Mark B.
Stern, Attorneys; Elizabeth A. Strange, Acting United States
Attorney; Chad A. Readler, Acting Assistant Attorney
General; Civil Division, United States Department of
Justice, Washington, D.C.; for Defendant-Appellee.
4 MORALES V. UNITED STATES
OPINION
McKEOWN, Circuit Judge:
This appeal is one of many tort cases against the
government in which we consider the government’s waiver
of sovereign immunity. Under the Federal Tort Claims Act
(the “FTCA”), the court has no jurisdiction over claims
“based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the
part of a federal agency or an employee of the Government
. . . .” 28 U.S.C. § 2680(a). The agency’s action here—a
decision not to mark a cable suspended over a river in
Arizona—falls squarely in this discretionary function
exception.
In June 2012, a helicopter piloted by Raymond Perry
crashed in the Prescott National Forest, killing Perry and his
three passengers, after striking an unmarked cable suspended
forty feet above the Verde River. The cable had been
installed by the United States Geological Survey (“USGS”)
as part of a cableway that enabled personnel to collect
streamflow measurements and water samples. Although the
cable was virtually invisible to aircraft pilots, USGS chose
to place no markers or warning signs because the agency
adopted the Federal Aviation Administration’s (“FAA”)
obstruction regulations, which required that only objects
more than 200 feet above ground level (hereinafter,
“200 feet”) must be marked.
Following the accident, Perry’s estate and the owner of
the helicopter (collectively, “Perry”) filed suit, claiming that
USGS was negligent for failing to mark the cable. We affirm
the district court’s dismissal of the action for lack of subject
matter jurisdiction on the ground that USGS’s decision not
MORALES V. UNITED STATES 5
to mark the cable was driven by policy considerations and
fell within the discretionary function exception to the FTCA.
I. BACKGROUND
USGS is a federal agency responsible for collecting and
examining scientific information about the “geological
structure, mineral resources, and products of the national
domain.” See 43 U.S.C. § 31(a). As part of these duties,
USGS monitors the nation’s water resources, collecting
streamflow data and water quality samples to predict floods,
manage drinking water, evaluate water quality standards, aid
in the preservation of aquatic habitats, and investigate
streamflow history and climate change. This information is
collected through “streamgage” sites—locations equipped
with an active, continuously functioning measuring device
which collects the mean daily streamflow in a particular
area. When a streamgage site is installed in a location
without a bridge or other stream crossing, USGS generally
builds a cableway—a cable car suspended from a wire
rope—to provide USGS personnel with safe access to the
site.
In 1934, USGS installed a streamgage site and cableway
over the Verde River Canyon in Prescott National Forest,
Arizona. USGS has operated the streamgage site
intermittently since its installation, and continuously since
October 1988. The cable stretched 286 feet across the
canyon at a height of forty feet above the river. Despite the
cable being virtually invisible from 100 feet or more away,
or to aircraft flying at the same height, USGS did not mark
the cableway or add warning signs because the cable did not
meet the criteria for marking under USGS policy.
Since 1980, USGS has re-examined its policy on
marking several times, often in response to accidents
6 MORALES V. UNITED STATES
involving cableways. One feature present in every version
of the policy is USGS’s adoption of FAA standards
regarding obstructions to navigable airspace and
requirements for notice of obstructions, contained in
14 C.F.R. pt. 77. The regulations require notification to the
FAA for any construction or alteration of structures that
exceed 200 feet or for structures that are located within
20,000 feet of an airport or within 5,000 feet of a heliport.
14 C.F.R. § 77.9.
With this in mind, we provide a brief overview of the
specific policies in place since 1984. USGS’s policy in 1984
was reflected in Memorandum No. 84.57 (the “1984
Memorandum”). The policy provided that FAA regulations
do not require marking of objects less than 200 feet, but that
marking of certain cableways should be considered if they
are hazardous to low-flying aircraft. USGS District offices
were directed “to review all . . . cableway installations and
decide which may be hazardous to low-flying aircraft,” and
to develop “[a] plan . . . to install markers on those
cableways designated as potentially hazardous.”
After an aircraft struck an unmarked cableway in 1995,
USGS re-examined its marking policy. USGS considered “a
broad policy to require the marking of all cableways,” but
ultimately decided against it after consulting with an FAA
Air Specialist, Ted Melland. After reviewing photographs
and aeronautical charts for a subset of cableways, Melland
recommended against marking any of them because none
met the FAA criteria set forth in 14 C.F.R. § 77. Melland
also advised against marking any USGS cableways that did
not meet the FAA criteria. Melland observed that USGS’s
“good intentioned efforts to mark or light certain crossings
could be considered excessive in our well established system
for maintaining aeronautical safety in obstruction
MORALES V. UNITED STATES 7
evaluations nationwide,” and that marking cableways under
200 feet could have potentially harmful effects to pilots who
expect to see obstruction markers only at higher levels.
USGS later issued Memorandum No. 2000.13 (the
“2000 Memorandum”), which superseded the 1984
Memorandum. At the outset, the policy recognized that
“Congress has charged the FAA with the responsibility to
promote the safety of aircraft and the efficient use of
navigable airspace.” The policy then reiterated USGS’s
adoption of the FAA’s marking criteria set forth in 14 C.F.R.
§ 77, specifically noting that structures exceeding 200 feet
“should normally be marked.” It also set forth notice
requirements for new and existing cableways, requiring
(i) notification to the FAA of any plans for new cableways
that will exceed 200 feet or fall within 20,000 feet of an
airport or 5,000 feet of a heliport; (ii) that USGS District
Chiefs verify to Regional Hydrologists that all existing
cableways that exceed 200 feet or fall within 20,000 feet of
an airport or 5,000 feet of a heliport have been submitted to
the FAA; and (iii) that USGS District Chiefs verify to
Regional Hydrologists that all existing cableways that are
marked have been submitted to the FAA. None of these new
requirements involved cableways under 200 feet.
In 2008, USGS issued a policy manual—Survey Manual,
No. SM 445-2-H (the “2008 Survey Manual”)—that was
functionally the same as the 2000 Memorandum. The 2008
Survey Manual reiterated that it was USGS policy to comply
with the FAA’s regulations “regarding establishment of an
obstruction evaluation program and use of structural aircraft
warning markers.” It also required notification to the FAA
for “existing marked or unmarked cableways and plans for
construction of new cableways that exceed 200 ft above the
8 MORALES V. UNITED STATES
surrounding terrain, or structures of a lesser height within
20,000 ft of an airport or within 5,000 ft of a heliport.”
Even though the default policy was not to mark
cableways under 200 feet, USGS also considered site-specific and other factors to determine whether to mark
cableways that did not meet FAA criteria. Such
considerations included the occurrence of past accidents at
the site, observation of aircraft in the area, and requests from
land-management agencies. The specific considerations
relevant to the Verde River cableway included the absence
of any prior accidents; the cost of installation; the physical
risk to employees installing markers; the risk of confusion to
pilots who expect to see markings at higher heights; the
likelihood of vandalism by marksmen and accompanying
economic and safety concerns; and the United States Forest
Service’s (“USFS”) scenic integrity objectives to “minimize
or eliminate visual distractions” in the area given the Verde
River’s designation as a “Wild and Scenic River.”
II. ANALYSIS
A. Federal Tort Claims Act Framework
The FTCA waives the government’s sovereign
immunity for tort claims arising out of negligent conduct of
government employees acting within the scope of
employment. 28 U.S.C. § 1346(b)(1). This waiver allows
the government to be sued “under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the
act or omission occurred.”
Id. And, of course, if there is no
waiver, the court lacks subject matter jurisdiction, an issue
that we review de novo. GATX/Airlog Co. v. United States,
286 F.3d 1168, 1173 (9th Cir. 2002).
MORALES V. UNITED STATES 9
One exception to this broad waiver of sovereign
immunity, called the discretionary function exception,
provides immunity from suit for “[a]ny claim . . . based upon
the exercise or performance or the failure to exercise or
perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether
or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). The purpose of this exception is to prevent
“judicial ‘second guessing’ of legislative and administrative
decisions grounded in social, economic, and political policy
through the medium of an action in tort.” United States v.
S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines),
467 U.S. 797, 814 (1984). The United States bears
the burden of proving the applicability of the discretionary
function exception. Prescott v. United States,
973 F.2d 696,
702 (9th Cir. 1992).
The Supreme Court established a two-step process to
determine the applicability of the exception. See Berkovitz
v. United States, 486 U.S. 531, 536 (1988). We determine
first whether the act is “discretionary in nature,” which
necessarily involves an “‘element of judgment or choice.’”
United States v. Gaubert,
499 U.S. 315, 322 (1991) (quoting
Berkovitz,
486 U.S. at 536). The “judgment or choice”
requirement is not met where a “federal statute, regulation,
or policy specifically prescribes a course of action for an
employee to follow.” Berkovitz,
486 U.S. at 536. “If there
is such a statute or policy directing mandatory and specific
action, the inquiry comes to an end because there can be no
element of discretion when an employee ‘has no rightful
option but to adhere to the directive.’” Terbush v. United
States,
516 F.3d 1125, 1129 (9th Cir. 2008) (quoting
Berkovitz,
486 U.S. at 536).
10 MORALES V. UNITED STATES
If discretion is involved, then we consider whether the
discretion “is of the kind that the discretionary function
exception was designed to shield”—namely, “only
governmental actions and decisions based on considerations
of public policy.” Berkovitz, 486 U.S. at 536–37 (citation
and internal quotation marks omitted). “Public policy” has
been understood to mean considerations “grounded in social,
economic, and political policy.” Varig Airlines, 467 U.S. at
814. The focus is on whether the actions are “susceptible to
a policy analysis,” not whether the government actually took
such public policy judgements into consideration when
making the decision. Miller v. United States,
163 F.3d 591,
593 (9th Cir. 1998).
B. Application of the Discretionary Function
Exception
1. Discretionary Nature of Cable Marking Policy
No federal statute, regulation, or policy specifically
prescribed the marking of the Verde River cableway.
Instead, the decision of whether to mark the cableway was a
result of considered judgment and choice. The Verde River
cableway fell within USGS’s default policy not to mark
cableways that did not meet the FAA’s criteria under
14 C.F.R. pt. 77—it did not exceed 200 feet and was not
located within proximity of an airport or heliport. Nor did
the cableway trigger any of the verification requirements set
forth in the 2008 Survey Manual and 2000 Memorandum,
which only applied to new cableways exceeding 200 feet,
and existing cableways that exceeded 200 feet or were
already marked. There was no mandatory directive within
USGS’s policies to mark the cable.
USGS’s ability to consider factors such as competing
safety interests, cost of installation and maintenance, and the
MORALES V. UNITED STATES 11
effect on scenic integrity—all of which weighed against
marking the cableway—also demonstrates that no “course of
action” was prescribed. Berkovitz, 486 U.S. at 536. That
USGS was able to consider such specific factors, which
necessarily vary by site, highlights that judgment was
involved in the decision. This is not an instance in which
USGS’s policy identified site-specific considerations that
mandated marking. No such guidance was provided in any
USGS policy, so USGS employees were left to exercise their
judgment when deciding whether to mark a particular site.
Perry’s arguments relating to the 1984 Memorandum do
not convince us otherwise. Even if the 1984 Memorandum
applied at the time of the accident, it did not create a
mandatory directive to mark the cable. As with the other
policies, the default position was to mark only those
cableways that met FAA criteria. Although the policy
directed USGS personnel “to review” all cableways, “decide
which may be hazardous,” and develop a plan to install
markers at those sites, this language cannot be construed as
a “mandatory and specific” directive to mark the Verde
River cableway. Rather, the policy left employees with a
discretionary choice about which cableways were hazardous
and which should be marked. In sum, nothing in USGS’s
policy created a mandatory and specific directive to mark the
forty-foot high Verde River cableway.
2. Cable Marking Policy Based on
Considerations of “Public Policy”
The second step of the Berkovitz inquiry—whether
USGS’s decision is susceptible to policy analysis grounded
in social, economic, and political concerns—also cuts
against Perry’s position. Gaubert, 499 U.S. at 323–26. This
case is remarkably congruent with our decision in Mitchell
v. United States, in which we held that the Bonneville Power
12 MORALES V. UNITED STATES
Administration’s (“BPA”) decision to adopt FAA
regulations to determine whether to mark ground wires was
discretionary and rooted in public policy. 787 F.2d 466, 468
(9th Cir. 1986). Mitchell’s estate sued the BPA under the
FTCA after Mitchell crashed his plane into a ground wire
while crop dusting a field. The BPA did not mark the wires
because it had adopted the FAA’s standards for marking,
which, at the time, only required marking objects exceeding
500 feet. We reversed the district court’s conclusion that the
discretionary function exception did not apply and
underscored the policy nature of the agency’s decision:
The BPA did not negligently install or
maintain warning devices, but rather,
affirmatively decided to adopt the FAA's
policy of not marking ground wires below
500 feet. The Federal Aviation Act,
49 U.S.C. § 1421 authorized the FAA to
regulate air safety. The BPA does not have
similar statutory authorization and therefore
chose to rely on FAA standards regarding
whether to mark ground wires. Its choice to
leave air space safety standards to be set
chiefly by the FAA was grounded in social,
economic, and political policy. Our review
of this decision would encroach upon the
agency's decisionmaking process; the
exception therefore applies and we are
without jurisdiction to review the agency's
decision.
Id. (citation and internal quotations marks omitted).
Like the BPA, USGS’s decision to defer to the FAA as
the agency charged with “the responsibility to promote the
MORALES V. UNITED STATES 13
safety of aircraft and the efficient use of navigable airspace”
is grounded in social, economic, and political policy. USGS
recognized the FAA’s role and expertise in regulating
navigable airspace, and affirmatively decided to defer to the
agency’s standards with respect to marking.
Although our analysis in Mitchell is sufficient to end the
inquiry, it bears noting that USGS’s decision was susceptible
to a number of additional social, economic, and political
considerations. For example, there were competing safety
concerns, such as the risk of confusing pilots “who expect to
see obstruction markers only at higher levels,” and the risk
to USGS personnel tasked with installation or maintenance
of the markers. Economic factors were also considered, such
as the cost of installation and maintenance of the markers,
particularly given the likelihood of vandalism. USGS also
knew of USFS’s objective to minimize visual distractions to
meet “scenic integrity objectives” given the Verde River’s
designation as a “Wild and Scenic River” and bald eagle
nesting area.
All of these considerations embody the type of policy
concerns that the discretionary function exception is
designed to protect, reflecting that USGS’s decision was
based on competing policy considerations related to safety
to aircraft, safety to USGS personnel, financial burden,
protection of scenic integrity, and respect to the objectives
of land-management agencies. See, e.g., Terbush, 516 F.3d
at 1136–37 (discretionary function exception applied to a
decision not to warn of a rockfall hazard caused by
installation of a water management center because the
decision involved a “process of identifying and responding
to hazards in the wild” and “the mandates of access,
conservation and safety were at issue . . . in identifying the
scope of the rockfall hazard as well as the appropriate means
14 MORALES V. UNITED STATES
of warning the public.”); Blackburn v. United States,
100 F.3d 1426, 1433–34 (9th Cir. 1996) (discretionary
function exception applied to decision rejecting “placement
of barriers on or along [a] bridge” because the agency had to
balance the needs of warning the public against “visitor
enjoyment, preservation of the historical features of the
bridge, the need to avoid a proliferation of man-made
intrusions, and protection of wildlife and the general riparian
environment”); Valdez v. United States,
56 F.3d 1177, 1180
(9th Cir. 1995) (discretionary function exception applied to
decision to design trail without guard rails or barriers
because it “implicate[d] a choice between the competing
policy considerations of maximizing access to and
preservation of natural resources versus the need to
minimize potential safety hazards”); Childers v. United
States,
40 F.3d 973, 975 (9th Cir. 1994) (discretionary
function exception applied to a decision not to warn of
unmaintained trails because the decision was “inextricably
linked to central policy questions” relating to access and
preservation).
We reject the suggestion that the government cannot
invoke the discretionary function exception whenever a
decision involves considerations of public safety. This
sweeping exemption would severely undermine the
discretionary function exception and is unsupported by our
precedent. In case after case, we have considered the
government’s balancing of public safety with a multitude of
other factors. See, e.g., Terbush, 516 F.3d at 1137
(balancing safety with considerations of access and
conservation in deciding whether to warn the public of a
rockfall hazard); Miller,
163 F.3d at 596 (balancing public
safety with considerations of firefighter safety, cost, and
resource damage in deciding how to fight a forest fire);
Blackburn, 100 F.3d at 1433–34 (balancing safety with
MORALES V. UNITED STATES 15
considerations of visitor enjoyment, preservation of
historical features, desire to avoid proliferation of man-made
intrusions, and protection of wildlife in deciding how to
warn the public of the danger of diving from a bridge).
Perry’s reliance on Young v. United States to argue that
the exception does not apply is also misplaced. 769 F.3d
1047 (9th Cir. 2014). Young involved the National Park
Service’s decision not to place warning signs near a
transformer located within a national park. We held that the
discretionary function exception did not apply because the
decision was not susceptible to any of the government’s
purported policy considerations. Although the government
claimed to balance safety with access and preservation
concerns, the transformer was not in an area of the park in
which the agency sought to provide access, and the
transformer itself detracted from the scenery. Thus, Young
turned on the specific facts of the case, which showed that
the government’s decision not to install warning signs was
“totally divorced” from the alleged policy concerns.
Id. at
1057. There must be “‘some support in the record’ that the
particular decision the [government] made was actually
susceptible to analysis under the policies the government
identified.”
Id. (quoting Terbush,
516 F.3d at 1134). Young
did not create a per se rule that decisions involving safety do
not trigger the exception—it is only “[c]ases in which the
government cannot provide such support [that] delimit the
scope of the discretionary function exception’s reach.”
Id.
Unlike in Young, USGS’s decision not to mark the cableway
was “actually susceptible” to policy analysis, including
deference to another agency’s expertise, competing safety
interests, financial burden, and the effect on scenic integrity.
Our invocation of the discretionary function doctrine in
cases involving public safety should not be read as giving
16 MORALES V. UNITED STATES
the government a pass every time it raises the exception. We
emphasize that the government bears the burden of
sustaining the discretionary function exception and that the
record must bear the weight of that burden.
Because USGS’s decision not to mark the Verde River
cableway was discretionary and grounded in social,
economic, and political concerns, we affirm the district
court’s dismissal for lack of subject matter jurisdiction.
AFFIRMED.
