Appeal from the United States District Court for the Central District of California. D.C. No. CV-93-00228-AHS. Alicemarie H. Stotler, District Judge, Presiding.
Before: Dorothy W. Nelson, Thomas G. Nelson and Sidney R. Thomas, Circuit Judges. Opinion by Judge T.g. Nelson.
T.G. NELSON, Circuit Judge:
Ryan Anthony Blackburn filed an action for damages against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671, et seq. ("FTCA"). Blackburn claimed that the Government was negligent in failing to warn of the danger of diving off the Stoneman Bridge in Yosemite National Park. The Government moved for summary judgment, claiming that the district court lacked subject matter jurisdiction over the action under the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). The district court granted summary judgment in favor of the Government and dismissed the action. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
On July 21, 1991, Blackburn dove off the Stoneman Bridge in Yosemite National Park. As a result of the dive, Blackburn suffered severe injuries which rendered him a permanent quadriplegic.
The Stoneman Bridge is located in the Yosemite Valley in Yosemite Park. Yosemite Park is owned by the United States and operated by the National Park Service ("NPS"). During weekends in the summer months, visitation to Yosemite routinely exceeds approximately 40,000 persons. During the course of the day, the vast majority of these visitors travel through the Yosemite Valley floor.
The Stoneman Bridge spans the Merced River. At the time of the accident, the bridge had two lanes of traffic and pedestrian walkways on both sides. A granite block wall ran along both sides of the bridge. The distance from the top of the block wall to the water surface was approximately twenty feet.
In July 1981, ten years prior to Blackburn's accident, six signs stating "DANGEROUS TO DIVE FROM BRIDGE" were installed at the bridge. At the time of the accident, these six signs were in place on and around the bridge. Blackburn admits that he saw these signs prior to diving from the bridge.
Blackburn filed an action for damages in federal district court, claiming that the Government was negligent in failing to (1) warn of the dangerous condition of the Stoneman Bridge and the watercourse under it; (2) properly design and maintain Stoneman Bridge and the watercourse under it; (3) sound the Merced River beneath Stoneman Bridge to determine water depth, locate eddies and pools, dangerous currents, sunken logs and rocks and other hazardous conditions; and (4) post signs indicating water depth, location of eddies and pools, dangerous currents, sunken logs and rocks and other hazardous conditions.
The Government moved for summary judgment, claiming that the district court lacked subject matter jurisdiction pursuant to the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). The district court granted the Government's summary judgment motion and dismissed the action. Blackburn timely appeals.
"We review de novo both the district court's grant of summary judgment as well as its determination of subject matter jurisdiction." Faber v. United States, 56 F.3d 1122, 1124 (9th Cir. 1995). "Although the plaintiff bears the initial burden of proving subject matter jurisdiction under the FTCA, the United States bears the ultimate burden of proving the applicability of the discretionary function exception." Id. (quotations omitted).
A. Discretionary Function Exception
An action can be brought by a party against the United States only to the extent that the Federal Government waives its sovereign immunity. Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995). The FTCA waives the Government's sovereign immunity for tort claims arising out of the negligent conduct of government employees acting within the scope of their employment. Id. Thus, the Government can 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." 28 U.S.C. § 1346(b).
The FTCA's waiver of immunity is limited, however, by the discretionary function exception, which bars 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, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). This exception "restores the government's immunity in situations where its employees are carrying out governmental or 'regulatory' duties." Faber, 56 F.3d at 1124 (citing 138 Cong. Rec. S13982-01,*fn* S14010 (daily ed. Sept. 18, 1992)).
To determine whether the challenged conduct falls within the discretionary function exception, we employ a two-step analysis. First, we must determine "whether the challenged actions involve 'an element of judgment or choice.'" Valdez, 56 F.3d at 1179 (quoting United States v. Gaubert, 499 U.S. 315, 322, 113 L. Ed. 2d 335, 111 S. Ct. 1267 (1991)). This requirement is not met where "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz v. United States, 486 U.S. 531, 536, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988). In this event, the inquiry is at an end and the discretionary function exception does not apply because "the employee has no rightful option but to adhere to the directive." Id.
However, if an element of choice or judgment is involved, we must move on to the second step of the analysis and determine "whether that judgment is of the kind that the discretionary function exception was designed to shield." Gaubert, 499 U.S. at 322-23. The exception "protects only governmental actions and decisions based on considerations of public policy." Id. at 323. In other words, only those decisions "grounded in social, economic, and political policy" will be protected by the discretionary function exception. Childers v. United States, 40 F.3d 973, 974 (9th Cir. 1994), cert. denied, 131 L. Ed. 2d 744, 115 S. Ct. 1821 (1995).
This court must first determine whether the challenged conduct is a matter of choice or judgment for NPS employees. Blackburn contends that NPS failed to comply with mandatory duties of care under a previously adopted safety plan contained in NPS regulations and guidelines and that therefore the discretionary function exception does not apply. Our analysis of this issue is guided by earlier cases involving NPS regulations and the discretionary function exception.
In Valdez v. United States, 56 F.3d 1177, Valdez was rendered a quadriplegic when he fell down a waterfall in Kings Canyon National Park. The park was owned by the United States and operated by the NPS. Valdez had been out hiking with friends when the accident occurred. He was attempting to descend down the side of the falls when he lost his footing and fell to the base of the falls. Id. at 1178. Valdez brought suit against the United States under the FTCA to recover for his injuries, claiming that the NPS failed to adequately warn the public of potential hazards.
Valdez relied on various NPS policy manuals and testimony by NPS employees that the regulations in the manuals were mandatory to support his argument that the NPS lacked any choice or judgment over the challenged conduct. Id. at 1179-80. We rejected this argument:
While the said policy guidelines certainly outline general policy goals regarding visitor safety, the means by which NPS employees meet these goals necessarily involves an exercise of discretion. These guidelines can be considered mandatory only in the larger sense that they set forth broad ...