Chadd Ex Rel. Estate of Boardman v. United States

concurring:

I concur in Judge O’Scannlain’s opinion, which I believe correctly applies our precedents regarding the discretionary function exception to the troubling facts of this ease. I agree with Judge Kleinfeld, however, that our jurisprudence in this area has gone off the rails. In particular, in my view, Miller v. United States was wrong when it concluded that the decision at issue “need not be actually grounded in policy considerations” but need only be, “by its nature, susceptible to a policy analysis.” 163 F.3d 591 , 593 (9th Cir.1998); see also GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174, 1178 (9th Cir.2002).

Miller purported to derive that rule from United States v. Gaubert, 499 U.S. 315 , 111 S.Ct. 1267 , 113 L.Ed.2d 335 (1991). But that is not what Gaubert says — it says the opposite, that “the exception protects only governmental actions and decisions based on considerations of public policy.” Id. at 323 , 111 S.Ct. 1267 (emphasis added, internal quotation marks omitted).

Gaubert then went on to indicate that susceptibility to a policy analysis, which Miller elevated to the ultimate question, was relevant insofar as it established a strong presumption…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUSAN H. CHADD, as personal No. 12-36023 representative of the Estate of Robert M. Boardman, deceased, and for D.C. No. herself, 3:11-cv-05894- Plaintiff-Appellant, RJB

v.

OPINION

UNITED STATES OF AMERICA,

NATIONAL PARK SERVICE,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, Senior District Judge, Presiding

Argued and Submitted May 16, 2014—Seattle, Washington

Filed July 27, 2015

Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge O’Scannlain; Concurrence by Judge Berzon; Dissent by Judge Kleinfeld CHADD V. U.S. NAT’L PARKS SERVICE

SUMMARY*

Federal Tort Claims Act

The panel affirmed the district court’s dismissal for lack of subject matter jurisdiction of a Federal Tort Claims Act action brought against the United States alleging claims arising from a fatal mountain goat attack on an Olympic National Park visitor.

The plaintiff, the wife of the deceased Park visitor, alleged that Park…

Opinion by Judge O’SCANNLAIN; Concurrence by Judge BERZON; Dissent by Judge KLEINFELD.

OPINION

We must decide whether the United States may be sued under the Federal *1107 Tort Claims Act for the actions of the National Park Service relating to a mountain goat that attacked and killed a Park visitor.

I

A

Established in 1938, Olympic National Park (“Olympic” or the “Park”) spans 922,-650 acres and hosts three million visitors each year. Among the many species of animal residing in Olympic is the mountain goat, which is not native to the area, having been introduced into the Park decades ago. Mountain goats possess dangerously sharp horns, and males typically weigh around 242 pounds. Prior to the incident in this case, there had been three reported, non-lethal attacks on people by mountain goats at other national parks, none of which were known to officials at Olympic.

Normally, mountain goats are reclusive animals, but the goats at Olympic frequently seek out areas visited by humans because of the salt humans leave behind. After repeated exposure to humans, goats can become habituated to their presence, which entails the loss of the mountain goat’s fear response. Around 2004,…

dissenting:

I respectfully dissent.

A Supreme Court concurrence commented that the courts have had “difficulty in applying” the rule for deciding which *1115 government actions fall within the discretionary function exception. 1 Indeed. In this case, we have allowed the discretionary function exception to swallow the statutory rule that the federal government waives its sovereign immunity for torts for which an ordinary person would be liable. Under the Court’s opinions in United States v. Gaubert 2 and Berkovitz v. United States, 3 the negligence in this case falls outside the discretionary function exception. The majority mistakenly expands the exception and contracts the rule, and thereby creates tension with our recent decision in Young v. United States 4 as well as Whisnant v. United States 5 and Bear Medicine v. United States,

The Federal Tort Claims Act says that the government “shall be liable ... [for torts] in the same manner and to the same extent as a private individual under like circumstances.” 7 This broad waiver is subject to an exception for claims “based upon the exercise or performance or the failure to exercise or perform a discretionary functioni or duty…