Steven Morales, Co-Personal Representative of the Estate of: deceased Raymond Perry; Nicole Perry, Co-Personal Representative of the Estate of: deceased Raymond Perry; Chopper II LLC, Plaintiffs-Appellants,
United States of America, Defendant-Appellee.
and Submitted March 13, 2018 San Francisco, California
from the United States District Court for the District of
Arizona John Joseph Tuchi, District Judge, Presiding D.C. No.
Stafford (argued), Franklin L. Smith, and Scott A. Salmon,
The Cavanagh Law Firm P.A., Phoenix, Arizona, for
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.
Before: Ferdinand F. Fernandez and M. Margaret McKeown,
Circuit Judges, and Roger T. Benitez, [*] District Judge.
Tort Claims Act
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
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.
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 provides immunity
from suit for any claim based upon the exercise of a
discretionary duty by a federal agency or employee.
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.
MCKEOWN, CIRCUIT JUDGE.
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
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.
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 to mark the cable was driven by