Bailey v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIGID BAILEY, individually, as the 

Personal Administrator for the

ESTATE OF JOSEPH PAUL BAILEY,

Deceased, and as Guardian Ad No. 09-16247

Litem for SAMUEL P. BAILEY and D.C. No.

PAUL F. BAILEY, and MEGHAN

BAILEY,

 2:07-cv-02154-

MCE-DAD

Plaintiff-Appellant,

OPINION

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.



Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted

March 9, 2010—San Francisco, California

Filed September 29, 2010

Before: Betty B. Fletcher, Richard R. Clifton and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge B. Fletcher

16597

16600 BAILEY v. UNITED STATES

COUNSEL

Gregory D. Rueb and Dirk Manoukian, Rueb Motta &

Manoukian, Concord, California, for the appellant.

Toney West, Assistant Attorney General, Lawrence G.

Brown, United States Attorney, Mark B. Stern, and Matthew

D. Burton, Attorneys, Appellate Staff Civil Division, Depart-

ment of Justice, Washington, DC, for the appellee.

OPINION

BEA, Circuit Judge:

On Memorial Day weekend 2005, John Bailey rowed his

boat over a submerged dam on the Yuba River in Northern

California. The boat foundered, and Bailey drowned. The

Army Corps of Engineers (“the Corps”) had placed signs

warning of the dam, mid-river upstream of, and on the banks

near the dam. However, recent heavy river flows had washed

the signs away. Four days before Bailey met his sad fate, the

Corps had attempted to replace the warning signs, but had

judged that the Yuba was so turbulent as to threaten the safety

of its workers who had to ford the river to attach new signs

and buoys.

Bailey’s widow and children brought suit claiming the gov-

ernment was negligent in the Corps’ failure to place the warn-

ing signs.

BAILEY v. UNITED STATES 16601

The district court granted a motion to dismiss the Baileys’

complaint on grounds the Federal Torts Claims Act (“FTCA”)

provided the government immunity from suit under the facts

alleged and shown, because the decision not to place the

warning signs on account of worker peril was a discretionary

decision commended by Congress for decision by the Corps,

not to be second-guessed by a court or jury.

Mrs. Bailey and her children appeal. We conclude the dis-

cretionary function exception to liability applies. The district

court acted correctly, and we affirm.

I. Facts and Procedural Background.

The Daguerre Point Dam is a submerged,1 debris-control

dam on the Yuba River in Northern California that is man-

aged and operated by the Army Corps of Engineers (“the

Corps”). The Corps’s management duties include posting

signs to warn recreational boaters that the dam presents a haz-

ard. In 1987, the Corps promulgated the Sign Standards Man-

ual (“SSM”). The SSM tells the Corps how “to provide

appropriate signs and markers at each project to guide,

inform, and protect visitors and employees.” With respect to

sign maintenance and replacement, the SSM requires “that

damaged signs be reported as soon as the problem is noticed

so that the necessary maintenance work can be scheduled and

completed in a timely manner.” The SSM further states that

“[i]t is also critical that missing or damaged signs be replaced

or repaired in a timely manner.” However, the SSM also

declares that, “[p]ersonnel safety is a prime concern in per-

forming sign maintenance.”

Although the 1987 SSM provides guidelines regarding

warning signs, it does not dictate the placement of signs at

any given location operated by the Corps. Rather, it states that

1

A submerged dam is not visible upstream because the dam’s structure

is under water.

16602 BAILEY v. UNITED STATES

“[e]xisting conditions must be evaluated on a site-by-site

basis followed by the development of a sign plan using the

signs and engineering criteria contained in this section.” Pur-

suant to this SSM language, the Corps developed a sign plan

for the Daguerre Point Dam that specifies exactly where

warning signs should be placed along the Yuba River

upstream from the dam, as well as a sign inventory that con-

tains specific details about each sign. The sign plan requires

placement of several permanent signs, such as signs on the

dam abutments that say “Danger-Keep Back,” signs that say

“Raft Portage,” and a sign four miles upstream that says

“Warning-Submerged Dam 4 Miles Downstream.” Because

of increased river usage in the spring and summer months, the

sign plan also calls for seasonal warning signs to be placed

along the south bank of the Yuba River and on a mid-river

sand bar downstream of the four-mile warning sign. The

Corps also installed a mid-river warning buoy.

Installing the signs on the sand bar and installing the buoy

are the most difficult tasks of sign-posting because they

require Corps workers to navigate the river. Installing the

sand bar signs requires the workers to drive two trucks

through the river to the sandbar; installing the buoy requires

a worker to wade out into the river and anchor it underwater.

Thus, to replace any signs, conditions on the river have to be

safe, and the water flow and water levels have to be low

enough to allow workers to do this.

In late April 2005, the Corps installed these seasonal warn-

ing signs. However, around May 19, 2005, there were unex-

pectedly heavy water flows on the Yuba River, and soon

thereafter, the Corps learned that the warning signs had been

submerged or washed away. On May 25, 2005, Corps workers

went to the river to assess if it was possible to replace the

signs. They could not get to the location where the signs had

been placed because of the high, fast water and dangerous

river conditions.

BAILEY v. UNITED STATES 16603

On May 29, 2005, during Memorial Day Weekend, Joseph

Bailey took his two sons rafting on the Yuba River, starting

approximately six miles upstream of the Daguerre Point Dam.

There were no warning signs about the dam anywhere upriver

of the dam; there were only warning signs on the dam abut-

ments. These came too late. Bailey and his sons went over the

dam; the two sons survived, but Joseph was caught in the spill

water and drowned. The next day, the Corps replaced the

missing signs.

Joseph Bailey’s survivors brought suit on his behalf against

the Corps under the Federal Tort Claims Act. In their com-

plaint they alleged the Corps negligently failed to replace the

missing warning signs before the busy Memorial Day week-

end. The Corps moved for summary judgment, or alterna-

tively to dismiss the case under Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction. The

district court held that the discretionary function exception

shielded the Corps from suit, and therefore granted the

Corps’s motion to dismiss for lack of subject matter jurisdic-

tion. This appeal timely followed.

II. Standard of Review.

We review de novo the district court’s decision to grant a

motion to dismiss for lack of subject matter jurisdiction under

the discretionary function exception. Terbush v. United States,

516 F.3d 1125, 1128 (9th Cir. 2008). The United States bears

the burden of proving the applicability of the discretionary

function exception. Id.

III. Analysis.

[1] The FTCA waives the federal government’s sovereign

immunity for tort claims arising out of the negligent conduct

of government employees and agencies in circumstances

where the United States, if a private person, would be liable

to the claimant under the law of the place where the act or

16604 BAILEY v. UNITED STATES

omission occurred. Id. at 1128-29. However, the discretionary

function exception provides the government an immunity

from suit that private persons do not have: 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 discretionary function exception is a limit placed by

Congress on its waiver of traditional sovereign immunity

from suit; it “marks the boundary between Congress’ willing-

ness to impose tort liability upon the United States and its

desire to protect certain governmental activities from expo-

sure to suit by private individuals.” Berkovitz v. United States,

486 U.S. 531, 536 (1988). “The basis for the discretionary

function exception was Congress’ desire 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.” Id. at 536-37 (quotation marks

omitted).

The Supreme Court has created a two-step test for courts

that governs the applicability of this exception. Terbush, 516

F.3d at 1129. The first step is to determine whether a federal

statute, regulation, or policy mandated a specific course of

action,2 or whether the government actor retained an element

of judgment or choice with respect to carrying out the chal-

2

State tort law duties are not relevant to the determination whether the

discretionary function exception applies. See Mitchell v. United States,

787 F.2d 466, 468 (9th Cir. 1986) (“Mitchell argues that ‘BPA was with-

out discretionary authority to breach the duty of care imposed by Wash-

ington law.’ Negligence, however is irrelevant to the discretionary

function issue.”). It is only after we determine as a matter of federal law

that the discretionary function exception does not apply that we then eval-

uate whether the government can be held liable under the laws of the state

where the act or omission took place. See 28 U.S.C. §§ 1346(b) and

2680(a).

BAILEY v. UNITED STATES 16605

lenged action. Id. If the government action did involve choice

or judgment, the second step is to determine “whether that

judgment is of the kind that the discretionary function excep-

tion was designed to shield, namely, only governmental

actions and decisions based on considerations of public poli-

cy.” Id. (quotation marks omitted). If the challenged action or

omission satisfies these two prongs, the government is

immune from suit based on that action or omission—and fed-

eral courts lack subject matter jurisdiction—even if that action

or omission constituted an abuse of discretion or was a wrong

choice under the circumstances. Id.

A. The first step: the Corps had to exercise its

judgment to determine when to replace the

missing signs; nothing mandated a specific time for

replacement.

[2] An agency does not retain discretion whether to act

where a statute or policy directs mandatory and specific

action and the agency has no lawful option but to adhere to

the directive. Navarette v. United States, 500 F.3d 914, 916

(9th Cir. 2007). On the other hand, an agency retains discre-

tion whether to act where no statute or agency policy dictates

the precise manner in which the agency is to complete the

challenged task. Miller v. United States, 163 F.3d 591, 595

(9th Cir. 1998). In Miller, the plaintiff sued the United States

Forest Service under the FTCA for its allegedly negligent

handling of a forest fire that spread from the Ochoco National

Forest onto Miller’s property and caused damage. Id. at 592.

The district court granted the Forest Service’s motion for

summary judgment on the ground the discretionary function

exception applied. Id. We affirmed. Id.

We held the first prong of the discretionary function excep-

tion was met because there were “no specific directives that

mandate[d] specific action in a multiple fire situation.” Id. at

595. Although there were general firefighting guidelines,

those guidelines “[did] not eliminate discretion because they

16606 BAILEY v. UNITED STATES

. . . did not tell the Forest Service to suppress the fire in a spe-

cific manner and within a specific period of time.” Id.3

[3] Likewise here, no regulation or guideline required the

Corps to replace the missing signs before a busy weekend or

within a specific period of time after receiving notice the

signs were gone. The Corps’s sign manual states only “that

missing or damaged signs must be replaced or repaired in a

timely manner.” (Emphasis added.) Although this does strip

the Corps of its discretion whether to replace missing or dam-

aged signs,4 it does not create a mandatory and specific direc-

tive regarding when the Corps must replace any missing or

damaged signs. Rather, the determination of when to replace

the signs is left to the discretion of the Corps.

Once an agency has discretion with respect to the chal-

lenged action, we must move on to step two. This is because

the discretionary function exception provides immunity even

to abuses of discretion. 28 U.S.C. § 2680(a). Here, the Corps

had discretion to determine what constituted “timely” replace-

ment of the missing warning signs. Therefore, the first prong

of the discretionary function exception is met and we move on

to the second step.

B. The second step: the timeliness decision is

susceptible to policy analysis.

[4] Only discretionary decisions that are susceptible to

public policy analysis confer immunity on the government

under the FTCA; “[t]he challenged decision need not be actu-

ally grounded in policy considerations.” Miller, 163 F.3d at

593. So, even though the Corps retained discretion to decide

when to replace the missing signs, it could still be liable for

3

As discussed more fully below, we also held that the Forest Service’s

decisions regarding how to fight a forest fire were susceptible to policy

analysis. Miller, 163 F.3d at 595-96.

4

The Corps did replace the missing signs on May 30, 2005.

BAILEY v. UNITED STATES 16607

a negligent decision unless its decision is susceptible to a pub-

lic policy analysis. See id. at 595. “Public policy has been

understood to include decisions grounded in social, economic,

or political policy.” Terbush, 516 F.3d at 1129 (quotation

marks omitted).

[5] We have noted that, although an agency’s decision to

adopt certain safety precautions as opposed to others may be

based in policy considerations, generally, “the implementation

of those precautions is not. Safety measures, once undertaken,

cannot be shortchanged in the name of policy.” Whisnant v.

United States, 400 F.3d 1177, 1182 (9th Cir. 2005) (alter-

ations omitted). However, “[t]he implementation of a govern-

ment policy is shielded where the implementation itself

implicates policy concerns, such as where government offi-

cials must consider competing fire-fighter safety and public

safety considerations in deciding how to fight a forest fire.”

Id. at 1182 n.3 (citing Miller, 163 F.3d at 595-96).5

[6] In Miller, we held that the implementation of a govern-

ment safety program with respect to fighting forest fires did

require the agency to balance competing policy interests, and

thus, the discretionary function exception applied. We noted

that “the Forest Service’s decision regarding how to attack a

fire involved balancing considerations including cost, public

safety, firefighter safety, and resource damage.” 163 F.3d at

5

Whisnant sued the government under the FTCA. 400 F.3d at 1179. He

alleged the government had negligently failed to discover and abate a

mold problem in the commissary of one of its naval bases and that he con-

tracted pneumonia as a result. Id. The government filed a Rule 12(b)(1)

motion to dismiss on the ground the suit was barred under the discretion-

ary function exception. Id. at 1180. The district court granted the motion.

Id. On appeal, we reversed. Id. at 1185. We held that, “removing an obvi-

ous health hazard is a matter of safety, not policy.” Id. However, we

implied that inspecting the commissary did not involve balancing compet-

ing safety considerations—there was no claim, nor was there any evidence

that inspection for mold posed a risk to agency personnel, nor any evi-

dence such risk was considered by the agency. Id. at 1182 n.3.

16608 BAILEY v. UNITED STATES

595. We then held that “[t]hese considerations reflect the type

of economic, social and political concerns that the discretion-

ary function exception is designed to protect.” Id. Thus, when

a decision requires an agency to balance competing safety

considerations, that decision is susceptible to a policy analy-

sis. See id. at 596 (“Where the government is forced, as it was

here, to balance competing concerns, immunity shields the

decision.”).

[7] As with the Forest Service’s decision in Miller, the

Corps’s decision here regarding when to replace the missing

signs on the Yuba River required the Corps to balance com-

peting policy interests. The Corps had to balance the safety of

its workers and the risk to its other limited resources, i.e., its

equipment, in replacing the signs in dangerous conditions

against the competing public safety interest in having the

signs replaced sooner. Indeed, the record establishes that

Corps “[s]taff attempted to assess the situation on May 25,

2005, but could not get to the location where the signs had

been placed either on the gravel/sand bar or on the South

banks of the river because of the high, fast water and danger-

ous conditions.” So, as in Miller, although the Corps was

implementing a safety program when it was deciding when to

replace the washed-out signs, in doing so it had to balance

competing policy interests: the safety of boaters and the safety

of its sign-placing workers and their equipment. Therefore,

under the discretionary function exception, the Corps’s discre-

tionary decision as to when to replace the signs is susceptible

to policy analysis and is immune from suit.

Although the dissent correctly contends that safety consid-

erations generally are not policy considerations, it ignores our

law that establishes that balancing competing safety consider-

ations is a protected policy judgment.6 See id. The dissent is

6

The dissent cites Faber v. United States, 56 F.3d 1122, 1125 (9th Cir.

1995) and Whisnant for the proposition that safety considerations are not

policy considerations. Although those cases did deal with government

BAILEY v. UNITED STATES 16609

correct that in Miller there were other types of policy consid-

erations in addition to safety that went into the Forest Ser-

vice’s discretionary judgment about how to fight the forest

fire, but that does not detract from Miller’s holding that bal-

ancing competing safety considerations is a policy judgment.

Moreover, so long as a decision involves even two competing

interests, it is “susceptible” to policy analysis and is thus pro-

tected by the discretionary function exception. See Alfrey v.

United States, 276 F.3d 557, 565 (9th Cir. 2002) (holding that

“[a] prison official’s judgment about how extensively to

search a cell involves a balancing of the potential risk [from

the reported threat], on the one hand, against the inmate’s

interest in being free from overly intrusive searches, on the

safety programs, the implementation of those programs did not involve

balancing competing safety considerations. Weighing two competing

safety interests and making a decision in favor of one interest or the other

is a protected policy judgment. See Whisnant, 400 F.3d at 1182 n.3 (“The

implementation of a government policy is shielded where the implementa-

tion itself implicates policy concerns, such as where government officials

must consider competing firefighter safety and public safety consider-

ations . . . .” (emphasis added)); Miller, 163 F.3d at 596 (“Where the gov-

ernment is forced, as it was here, to balance competing concerns,

immunity shields the decision.” (emphasis added)). The dissent contends

that we are relying on this footnote in Whisnant —which the dissent char-

acterizes as “dicta”—to overrule the holding of Whisnant. That is simply

not the case. Whisnant held that the government’s failure to discover mold

at a naval commissary, which it was required to inspect—although no stat-

ute, regulation or policy prescribed the precise manner in which the com-

missary was to be inspected—was not susceptible to policy analysis. 400

F.3d at 1183. The footnote merely contrasts Whisnant’s holding by recog-

nizing the holding of Miller: a decision that requires an agency to balance

competing safety considerations is protected by the discretionary function

exception. It also recognizes that the holding of Miller did not apply to the

facts in Whisnant; that is, the government’s failure to discover mold at the

commissary during its safety inspections did not involve the balance of

competing safety considerations. There was no evidence that mold inspec-

tors place themselves at risk when inspecting mold. Here, the Corps’s

decision when to replace the missing signs did require it to balance com-

peting safety considerations. Thus, nothing in our opinion today conflicts

with Whisnant.

16610 BAILEY v. UNITED STATES

other,” and that this balancing was sufficient to immunize the

government from plaintiff’s claim that the guards negligently

searched his cell). Here, the competing interests the Corps had

to balance in determining when to replace the missing warn-

ing signs were public safety versus Corps worker safety, as

well as the safety of its equipment in the fast river. Thus, the

Corps’s decision regarding when to replace the missing warn-

ing signs is susceptible to policy analysis and is immune as

a basis of suit.

In hindsight it may be easy to say the Corps should have

replaced the signs sooner, but that is exactly the judicial

second-guessing of government decision-making that the dis-

cretionary function exception is designed to prevent. As we

stated in Miller, “[o]ur task is not to determine whether the

Forest Service made the correct decision in its allocation of

resources. Where the government is forced, as it was here, to

balance competing concerns, immunity shields the decision.”

163 F.3d at 596. The Corps had to balance competing policy

interests in deciding when to replace the missing signs. There-

fore, immunity shields its decision.

AFFIRMED

B. Fletcher, Circuit Judge, dissenting:

I respectfully dissent.

The majority holds that the Corps’ decision to delay replac-

ing the Daguerre Point Dam warning signs is protected by the

discretionary function exception because that decision

required the Corps to balance employee safety and public

safety. I strongly disagree. The exception “protects only gov-

ernmental actions and decisions based on considerations of

public policy.” Berkovitz v. United States, 486 U.S. 531, 537

BAILEY v. UNITED STATES 16611

(1988). Safety considerations — competing or otherwise —

are not policy considerations.

According to the majority, not only does the discretionary

function exception cover decisions that require the govern-

ment to balance competing safety considerations, but it covers

decisions that involve any competing considerations. See Maj.

Op. at 16609 (“[S]o long as a decision involves even two

competing interests, it is ‘susceptible’ to policy analysis and

is thus protected by the discretionary function exception.”);

Maj. Op. at 16610 (“Where the government is forced, as it

was here, to balance competing concerns, immunity shields

the decision.” (internal quotation marks omitted)). Such a

holding is both gratuitous and absurd. All decisions require

balancing. There are always trade-offs. Every action has both

costs and benefits. See generally Milton Friedman, There’s

No Such Thing as a Free Lunch (1975). If the discretionary

function exception is triggered any time the government has

to balance “even two competing interests,” Maj. Op at 16609,

then the exception covers every decision ever made by the

federal government. I cannot endorse such a result.

I would hold that the district court erred in dismissing this

suit and I would remand for further proceedings.

I. Daguerre Point Dam Sign Plan

The Corps’ sign plan for the Daguerre Point Dam is very

specific. The plan requires the Corps to post several perma-

nent warning signs on the Yuba River, including a sign four

miles upstream from the dam that says “Warning-Submerged

Dam 4 Miles Downstream,” a number of signs that read “Raft

Portage,” and signs on the dam abutments that say “Danger-

Keep Back.”

A portion of the river upstream from the dam is popular

with pleasure boaters in the spring and summer months.1 The

1

Submerged dams like the Daguerre Point Dam are particularly hazard-

ous for pleasure boaters. Such dams are difficult to see from low riding

16612 BAILEY v. UNITED STATES

Daguerre Point Dam sign plan requires the Corps to post sea-

sonal signs that clearly instruct boaters to portage when they

approach the submerged dam. Two seasonal signs are placed

on a gravel bar in the middle of the river and read, respec-

tively, “Warning – Submerged Dam 1500 Downstream” and

“Danger – Submerged Dam Ahead Take Out Now.” On the

south bank of the river, seasonal signs direct boaters to points

on the bank where they should ground their boats and begin

to portage. These signs read “←Raft Portage” and “Danger –

Submerged Dam Ahead – Take Out This Side.” The sign plan

also calls for the Corps to anchor a buoy in the middle of the

river that directs boaters “←Take Out.” In no uncertain terms,

these signs make clear that boaters must begin to portage well

before they near the dam.

None of these signs, according to the Complaint, were in

place when Mrs. Bailey’s husband and children began to raft

down the Yuba River. The only warning signs posted were

the “Danger-Keep Back” signs on the dam itself, and they

came too late. As a result, Mr. Bailey and his sons had no

knowledge of the dam and were never instructed to take their

raft out of the water. Mrs. Bailey argues that, had the Corps

timely replaced the warning signs that had been washed away

in May 2005, her husband would have known that the sub-

merged Daguerre Point Dam lay ahead, taken his boat out of

the water as instructed, and survived.

II. Warning Signs on the Banks of the Yuba River

The discretionary function exception covers decisions by

the federal government that are “grounded in social, eco-

nomic, and political policy.” United States v. S.A. Empresa de

Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,

814 (1984). The majority concludes that the Corps decision to

boats and create strong reverse currents downstream that can pull small

boats into the face of the dam.

BAILEY v. UNITED STATES 16613

delay replacing the warning signs is protected by the excep-

tion because that decision required the Corps to balance the

safety of the public against the safety of its employees.

If we assume that balancing competing safety consider-

ations requires policy judgment — and I argue below that it

does not — then it follows that the discretionary function

exception covers only the Corps’ decision to delay replacing

the two seasonal signs on the gravel bar in the middle of the

river, the buoy anchored to the bottom of the river and the

signs on the south bank. To place those signs, Corps employ-

ees must drive or wade out into the river, a task that was made

dangerous in May 2005 by unusually high water flows on the

Yuba River.

Douglas Grothe, an employee of the Army Corps of Engi-

neers, indicated in his declaration supporting the Corps’

motion for summary judgment that if called as a witness he

would testify that he is an employee of the Corps and that

among his duties he managed all the recreation areas, includ-

ing operating and managing the Daguerre Point Dam; that his

“[s]taff attempted to assess the situation [of the washed-out

signs] on May 25 but could not get to the location where the

signs had been placed either on the gravel/sand bar or on the

south banks of the river because of the high, fast water and

dangerous conditions. On May 30, 2005 staff confirmed by

visual inspection that the signs were missing and we decided

that it was safe for our employees to begin replacing the miss-

ing signs. The work to replace those signs began the same

day.” The fatal accident occurred the previous day, May 29,

2005.

Nowhere does the Corps assert that turbulent water made

it difficult for employees to post warning signs on the north

bank of the river upstream from the dam — for example, the

“permanent” signs, such as signs on the dam abutments that

say “Danger-Keep Back,” signs that say “Raft Portage,” and

a sign four miles upstream that says “Warning-Submerged

16614 BAILEY v. UNITED STATES

Dam 4 Miles Downstream.” According to the majority’s own

analysis, the Corps’ decision to delay replacing some of the

signs required by the Daguerre Point Dam sign plan involved

no choice between competing safety concerns and thus were

not covered by the discretionary function exception. This

alone requires reversal and a remand.

III. The Corps Decision Implicated Only Safety

Considerations, Not Policy Considerations

“The decision to adopt safety precautions may be based in

policy considerations, but the implementation of those precau-

tions is not.” Whisnant v. United States, 400 F.3d 1177, 1182

(9th Cir. 2005) (internal quotation marks omitted); see also

Terbush v. United States, 516 F.3d 1125, 1133 (9th Cir. 2008)

(“[M]atters of routine maintenance are not protected by the

discretionary function exception . . . .”). For example, in

Indian Towing Co. v. United States, 350 U.S. 61, 69-70

(1955), the Supreme Court held that the Coast Guard could be

sued under the FTCA for failing to maintain a light house, and

in Whisnant, 400 F.3d at 1181-85, the Ninth Circuit held that

the United States could be sued for failing to eradicate mold

at a naval commissary. See also Bolt v. United States, 509

F.3d 1028, 1034-35 (9th Cir. 2007) (holding that snow

removal in parking lot involved routine maintenance and was,

therefore, not protected by the discretionary function excep-

tion); Soldano v. United States, 453 F.3d 1140, 1150-51 (9th

Cir. 2006); O’Toole v. United States, 295 F.3d 1029, 1035-37

(9th Cir. 2002) (holding that Bureau of Indian Affairs could

be held liable for neglecting to maintain an irrigation system).

The Corps’ initial decision to adopt the Daguerre Point

Dam sign plan may have taken into account policy consider-

ations — for example, ensuring public access and protecting

the environment. See Terbush, 516 F.3d at 1135-37; Childers

v. United States, 40 F.3d 973, 975-76 (9th Cir. 1994); but see

Oberson v. U.S. Dep’t of Agric., 514 F.3d 989, 998 (9th Cir.

2008); Faber v. United States, 56 F.3d 1122, 1127-28 (9th

BAILEY v. UNITED STATES 16615

Cir. 1995). However, the Corps’ subsequent decision to delay

replacing the missing signs did not implicate such concerns.

The policy decision was made when the Corps adopted the

Daguerre Point Dam sign plan. All that was left was for the

Corps to exercise its “professional judgment” in solving the

logistical problem of how to overcome the turbulent water, or

alternatively in deciding how long to wait for the water to

subside. Whisnant, 400 F.3d at 1185. Because Mrs. Bailey is

not arguing that the Corps should have adopted a better sign

plan, but instead is challenging the Corps’ failure to properly

implement the existing plan, we should allow her suit to pro-

ceed.

It is true that the discretionary function exception applies to

the implementation of a pre-existing safety plan when “the

implementation itself implicates policy concerns.” Id. at 1182

n.3. The majority believes that such is the case here because

the Corps had to balance the safety of the public against the

safety of its own employees. The Corps certainly had to make

a judgment call, but not one that involved policy concerns.

The case law is clear that safety considerations are not policy

considerations. See, e.g., Navarette v. United States, 500 F.3d

914, 919 (9th Cir. 2007) (holding that United States not

immune because decision to warn involved “safety consider-

ations under an established policy, rather than the balancing

of competing policy considerations” (internal quotation marks

omitted)); Whisnant, 400 F.3d at 1181 (“[M]atters of scien-

tific and professional judgment — particularly judgments

concerning safety — are rarely considered to be susceptible

to social, economic, or political policy.”); Miller v. United

States, 163 F.3d 591, 596 (9th Cir. 1998) (“[S]afety is not a

consideration based on policy.”); Faber, 56 F.3d at 1125

(“[A] failure to warn involves considerations of safety, not

public policy.”).2 Because the Corps considered only safety

2

See also Oberson, 514 F.3d at 998; Bolt, 509 F.3d at 1034; Soldano,

453 F.3d at 1150-51; Sutton v. Earles, 26 F.3d 903, 910-11 (9th Cir.

16616 BAILEY v. UNITED STATES

factors when it decided to delay replacing the missing warn-

ing signs, that decision is not protected by the discretionary

function exception.

IV. Balancing Competing Safety Considerations Does

Not Require Policy Judgment

The majority acknowledges that safety considerations are

not policy considerations, but concludes that “balancing com-

peting safety considerations is a protected policy judgment.”

Maj. Op. at 16608. This conclusion is based on a footnote in

Whisnant where the court pointed to Miller v. United States,

163 F.3d 591, 595-96 (9th Cir. 1998), as an example of a case

where the implementation of a safety precaution implicated

policy considerations. Whisnant, 400 F.3d at 1182 n.3. The

court observed that Miller was a case where the government

had to “consider competing firefighter safety and public

safety considerations in deciding how to fight a forest fire.”

Id. Because the Corps also had to balance employee and pub-

lic safety, the majority concludes that Whisant requires dis-

missal. This short statement from Whisnant is too thin a reed

for the majority to rest its entire decision upon it. The line is

dicta, as Whisnant was not a case where employee safety was

a concern or where the decision to implement a safety precau-

tion implicated policy considerations. More importantly,

when the footnote is read in context, it is clear that the court

was giving a shorthand description of Miller when it summa-

rized the case as one involving competing safety consider-

ations, not creating a new rule of law providing that balancing

competing safety considerations requires policy judgment.

1994); Ariz. Maint. Co. v. United States, 864 F.2d 1497, 1504 (9th Cir.

1989); Seyler v. United States, 832 F.2d 120, 123 (9th Cir. 1987); ARA

Leisure Services v. United States, 831 F.2d 193, 195 (9th Cir. 1987); cf.

Miller v. United States, 163 F.3d 591, 596 (9th Cir. 1998) (holding that

United States immune because it had to consider more than safety when

making the challenged decision); Lesoeur v. United States, 21 F.3d 965,

970 (9th Cir. 1994) (same).

BAILEY v. UNITED STATES 16617

The majority’s interpretation of the Whisnant footnote can-

not be correct because it is contrary to the central holdings of

Whisnant and Miller. Both cases compel the conclusion that

the Corps’ decision in this case is not covered by the discre-

tionary function exception. The Whisnant court explained that

“matters of scientific and professional judgment — particu-

larly judgments concerning safety — are rarely considered to

be susceptible to social, economic, or political policy.” Id. at

1181. Because “the governmental decisions Whisnant claim-

[ed] were negligent concerned technical and professional

judgments about safety,” the court concluded that the discre-

tionary function exception did not apply. Id. at 1185. By the

same token, because Mrs. Bailey is challenging a decision by

the Corps that concerned only technical and professional

judgments about safety, that decision is also not covered by

the discretionary function exception.

The decision in Miller is even more clear that balancing

competing safety considerations does not require policy judg-

ment. The Millers sued the Forest Service for damages to

their property from a forest fire. The court began by observing

that the Forest Manual requires the Forest Service to take into

account “cost, public safety, firefighter safety, and resource

damage” when fighting fires. 163 F.3d at 595. After acknowl-

edging “that safety is not a consideration based on policy,”

the court went on to observe that, “[w]hile safety was one

consideration, the decision regarding how to best approach

the Bald Butte fire also required consideration of fire suppres-

sion costs, minimizing resource damage and environmental

impacts, and protecting private property.“ Id. at 596. Based on

those non-safety considerations, the court concluded that the

discretionary function exception applied. Id. 597. The court in

Miller clearly held that the Forest Service’s decision was pro-

tected by the discretionary function exception because that

decision involved considerations other than public and fire-

fighter safety.3

3

The majority ignores the central holding of Miller and focuses instead

on Miller’s statement that “the Forest Service’s decision regarding how to

16618 BAILEY v. UNITED STATES

Instead of considering the central holdings and reasoning of

Whisnant and Miller, the majority focuses exclusively on a

brief footnote in Whisnant that describes Miller as a case

where the Forest Service had to balance employee and public

safety. The footnote’s description of Miller is not wrong —

the Forest Service did indeed have to strike that balance —

but the majority’s interpretation of it is wrong.

It is important to understand Miller in context. Its decision

to let the Bald Butte fire to burn and to destroy the Millers’

property involved far more than safety concerns. Several for-

est fires caused by lightning took place almost simulta-

neously. Resources were stretched thin. Whose property

should be saved was difficult and heart-wrenching. The Miller

court faced with these facts stated: “While safety was one

consideration, the decision regarding how to best approach

the Bald Butte fire also required consideration of fire suppres-

sion costs, minimizing resource damage and environmental

impacts, and protecting private property. The discretionary

function exception is designed to prevent the judiciary from

using its power to police the decisions of the executive

attack a fire involved a balancing of considerations, including cost, public

safety, firefighter safety, and resource damage,” considerations that “re-

flect the type of economic, social and political concerns that the discre-

tionary function exception is designed to protect.” Id. at 595. Based on this

sentence, the majority interprets Miller as holding that the listed factors,

although they may be non-policy considerations when taken alone, trans-

form into policy considerations when they are balanced against one

another. See Maj. Op. at 16608.

If the majority’s reading is correct, then Miller holds that the discretion-

ary function exception applies when the government balances safety

against cost, two of the factors listed. But it is black letter law that the dis-

cretionary function exception does not cover decisions that require the

government to weigh increased safety against the cost of additional pre-

cautions. See Terbush, 516 F.3d at 1134 & n.4; Whisnant, 400 F.3d at

1184; O’Toole, 295 F.3d at 1037 (“Every slip and fall, every failure to

warn, every inspection and maintenance decision can be couched in terms

of policy choices based on allocation of limited resources.”).

BAILEY v. UNITED STATES 16619

branch. Our task is not to determine whether the Forest Ser-

vice made the correct decision in its allocation of resources.

Where the government is forced, as it was here, to balance

competing concerns, immunity shields the decision.” Id. at

596.

Unlike the Forest Service’s decision in Miller, the Corps’

decision to delay replacing the Daguerre Point Dam warning

signs did not implicate considerations other than safety. Mrs.

Bailey’s suit must be allowed to proceed.

V. The Majority’s Decision is Inconsistent with the

Overarching Purpose of the FTCA

The majority’s conclusion also is inconsistent with the

“broad and just purpose” of the Federal Tort Claims Act,

which is “to compensate the victims of negligence in the con-

duct of governmental activities in circumstances like unto

those in which a private person would be liable and not to

leave just treatment to the caprice and legislative burden of

individual private laws.” Indian Towing Co., 350 U.S. at 68-

69; see also 28 U.S.C. § 1346(b)(1). “It would be wrong to

apply the discretionary function exception in a case where . . .

[the government’s] judgment would be no different than a

judgment made by a private individual not to take certain

measures to ensure the safety of visitors.” Faber, 56 F.3d at

1125. A private landowner in the Corps’ position would have

had to consider the exact same factors the Corps did when

deciding to delay replacing the warning signs. This is exactly

the kind of scenario that Congress intended to be covered by

the FTCA. See Dalehite v. United States, 346 U.S. 15, 28

(1953) (“Uppermost in the collective mind of Congress were

the ordinary common-law torts.”), partially overruled on

other grounds by Rayonier Inc. v. United States, 352 U.S. 315

(1957).4

4

See Varig Airlines, 467 U.S. at 813 n.10 (noting that “fundamental

aspects of Dalehite, including its construction of [the discretionary func-

tion exception], remain undisturbed” after Rayonier).

16620 BAILEY v. UNITED STATES

The discretionary function exception marks the boundary

between those situations where the government is acting in its

legislative or regulatory capacity and those where it is acting

as any private person might. See Varig Airlines, 467 U.S. at

813-14; Dalehite, 346 U.S. at 27-28. By preserving sovereign

immunity for the former category of government actions, the

exception “prevent[s] judicial ‘second-guessing’ of legislative

and administrative decisions grounded in social, economic,

and political policy through the medium of an action in tort.”

Varig Airlines, 467 U.S. at 814. If this suit were to proceed,

the district court would not usurp the Corps as supervisor and

regulator of the Daguerre Point Dam. The Corps would still

have responsibility for deciding how to run the dam, what

hazards warrant safety precautions, and what those safety pre-

cautions should entail. But having made that decision, it

would then be left for the court to determine whether the

Corps was obeying applicable laws, its own rules and safety

plans, and the common law. Dalehite, 346 U.S. at 34 (“The

‘discretion’ protected by the section is not that of the judge —

a power to decide within the limits of positive rules of law

subject to judicial review.”). This sort of second-guessing is

not the kind prohibited by the discretionary function excep-

tion, it is the kind that a court must undertake in any garden

variety tort case. The discretionary function exception does

not apply to Mrs. Bailey’s suit.

VI. Balancing, By Itself, Does Not Always Require Policy

Judgment

The majority does not focus on the nature of the consider-

ations that the Corps took into account when deciding when

to replace the missing warning signs, but rather on the fact

that the Corps had to balance competing considerations. All

balancing requires policy judgment, according to the majority.

See Maj. Op. at 16609 (“[S]o long as a decision involves even

two competing interests, it is ‘susceptible’ to policy analysis

and is thus protected by the discretionary function excep-

tion.”); Maj. Op. at 16610 (“Where the government is forced,

BAILEY v. UNITED STATES 16621

as it was here, to balance competing concerns, immunity

shields the decision.”).

All decisions require balancing. Every action has both costs

and benefits. There are always trade-offs. When the govern-

ment acts to achieve some benefit, that action comes with a

cost; the government consumes resources and creates risks by

acting, and it forgoes opportunities to use those resources in

some other fashion to obtain a different benefit. See O’Toole,

295 F.3d at 1037 (“Every slip and fall, every failure to warn,

every inspection and maintenance decision can be couched in

terms of policy choices based on allocation of limited

resources”). If the discretionary function exception applied to

every decision that required the government to balance “even

two competing interests,” Maj. Op. at 16609, then the discre-

tionary function exception swallows the FTCA whole.

The Army had to weigh the safety of those living in mili-

tary housing against the need to conserve its limited resources

when it decided whether to remove snow from resident park-

ing lots at Fort Wainwright. See Bolt, 509 F.3d at 1034. The

United States Bureau of Reclamation had to balance safety

against efficiency when it decided whether to excavate unsuit-

able materials from underneath the embankments of the Ken-

newick canal. See Kennewick Irrigation Dist. v. United States,

880 F.2d 1018, 1030-32 (9th Cir. 1989). When deciding

whether to eradicate toxic mold at a commissary, the Navy

had to weigh the time and money it would take against the

health benefits for its employees. See Whisnant, 400 F.3d at

1184. The National Park Service had to balance added conve-

nience to park visitors against risks to their safety when it

decided to increase the speed limit on a park road. See Sol-

dano, 453 F.3d at 1151 (9th Cir. 2006). Despite the competing

considerations that underlay each of these decisions, the dis-

cretionary function exception was held not to apply.

It is not enough that the Corps had to balance competing

considerations when deciding when to replace the missing

16622 BAILEY v. UNITED STATES

Daguerre Point Dam signs. We must look at the substance of

those considerations, and decide whether those considerations

were related to “social, economic, or political policy.” Varig,

467 U.S. at 814. The Corps decision was motivated by safety

concerns, and safety considerations are not policy consider-

ations. I would hold that the district court erred in dismissing

this suit and remand for the suit to proceed.