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Morales v. United States

United States Court of Appeals, Ninth Circuit

July 13, 2018

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,
v.
United States of America, Defendant-Appellee.

          Argued and Submitted March 13, 2018 San Francisco, California

          Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding D.C. No. 3:14-cv-08110-JJT

          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.

          Before: Ferdinand F. Fernandez and M. Margaret McKeown, Circuit Judges, and Roger T. Benitez, [*] District Judge.

         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 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.

          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 to mark the cable was driven by ...


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