Phong Lam v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHONG LAM, No. 19-16243

Plaintiff-Appellant,

D.C. No.

v. 3:18-cv-00936-LB

UNITED STATES OF AMERICA,

Defendant-Appellee. OPINION

Appeal from the United States District Court

for the Northern District of California

Laurel D. Beeler, Magistrate Judge, Presiding

Argued and Submitted June 8, 2020

San Francisco, California

Filed October 28, 2020

Before: Milan D. Smith, Jr. and Andrew D. Hurwitz,

Circuit Judges, and C. Ashley Royal, * District Judge.

Opinion by Judge Royal;

Concurrence by Judge Royal;

Dissent by Judge Hurwitz

*

The Honorable C. Ashley Royal, United States District Judge for

the Middle District of Georgia, sitting by designation.

2 LAM V. UNITED STATES

SUMMARY **

Federal Tort Claims Act

The panel affirmed the district court’s dismissal of a

Federal Tort Claims Act (“FTCA”) action alleging that the

U.S. Army Corps of Engineers negligently failed to cut

down a tree at the Lake Mendocino recreation area that

crashed into the plaintiff’s tent and smashed his leg.

The FTCA permits private suits against the United States

for damages for loss of property, injury, or death caused by

a government employee’s negligence. The FTCA’s

discretionary function exception (“DFE”) provides that the

government does not waive sovereign immunity for tort

claims if the alleged tortfeasor was performing a

discretionary function or duty when he or she injured the

plaintiff. The district court dismissed based on its finding

that the FTCA’s DFE defeated plaintiff’s claims.

In deciding whether the DFE applied, the panel applied

the Berkovitz/Gaubert test: 1) Did the Lake Mendocino

policies allow for discretion? and 2) Were those policies

susceptible to the policy analysis the DFE was designed to

protect? If the answer to both questions is yes, the DFE

applies. First, the panel held that because the Lake

Mendocino policies had no specific mandatory requirements

for maintaining, identifying, or removing dangerous trees,

the Lake Mendocino maintenance worker had discretion to

act according to his judgment in assessing trees. The panel

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

LAM V. UNITED STATES 3

held further that this discretion satisfied the first part of the

Berkovitz/Gaubert test. Second, the panel held that park

rangers’ decisions as to tree maintenance were susceptible to

policy considerations. The panel concluded that the DFE

applied in this case.

District Judge Royal concurred, and wrote separately to

address the dissent.

Judge Hurwitz dissented because the majority’s decision

conflicts with the precedent in Kim v. United States, 940

F.3d 484, 487-90 (9th Cir. 2019), which held that

governmental immunity does not apply to precisely the

governmental decision at issue in this case. He wrote that

this case does not call on the court to judge the wisdom of

any social, economic, or political policy, but rather simply

to perform the familiar role of determining whether the

government agent exercised reasonable care.

COUNSEL

Robert V. Chin (argued), Law Office of Robert V. Chin, San

Rafael, California, for Plaintiff-Appellant.

Julie Bibb Davis (argued), Assistant United States Attorney;

Sara Winslow, Chief, Civil Division; David L. Anderson,

United States Attorney; United States Attorney’s Office, San

Francisco, California; for Defendant-Appellee.

4 LAM V. UNITED STATES

OPINION

ROYAL, District Judge:

During the 2014 July Fourth weekend, Phong Lam

(“Lam”) was asleep in the Lake Mendocino recreation area

when a tree crashed into his tent and smashed his foot. Lam

sued the United States under the Federal Tort Claims Act

(“FTCA”) and alleged that the Army Corps of Engineers

(“Corps”) negligently failed to cut down the tree. The

Government filed a 12(b)(1) Motion to Dismiss Lam’s

complaint for lack of subject matter jurisdiction, and the

district court granted the motion after finding that the

FTCA’s Discretionary Function Exception (“DFE”)

defeated Lam’s claim. 1 Lam appeals that ruling.

This panel has jurisdiction under 28 U.S.C. § 1291 to

review a district court’s final decision. We review the district

court’s dismissal for lack of subject matter jurisdiction de

novo. Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir.

1995). And we accept the district court’s factual findings on

all jurisdictional issues unless they are clearly erroneous.

Sabow v. United States, 93 F.3d 1445, 1450 (9th Cir. 1996),

as amended (Sept. 26, 1996).

The issue in this case is simple. This panel must decide

if the district court erred in ruling that the FTCA’s

discretionary function exception shields the Government

from liability for Lam’s injuries. Ultimately, this case turns

on the Corps’ policies. Because those policies are not

1

With the parties’ consent, United States Magistrate Judge Laurel

Beeler wrote the order for the district court.

LAM V. UNITED STATES 5

mandatory and allow for discretion, and that discretion is

susceptible to policy analysis, we AFFIRM.

I. Facts and Procedural Background

A 60-foot interior live oak buckled and crashed into

another tree and that tree collapsed onto Lam’s tent while he

and his family slept at the Kyen campground at Lake

Mendocino. Lake Mendocino (“the Lake”) is a recreation

area built and operated by the Corps for camping, boating,

swimming, picnicking, fishing, and hiking. Half a million

people visit the Lake each year. Kyen is one of six recreation

areas, and it has 93 campsites. Oak woodlands dominate in

Kyen. Corps employees maintain the campsites and the

surrounding trees.

In 2014, the Corps employed Wayne Shull (“Shull”) as

a maintenance worker at Lake Mendocino where he had

managed the trees since 2007. The United States Forest

Service had certified Shull as a chainsaw operator and as a

tree climber and had trained him to identify and remove

hazardous trees. For nine years before the oak fell on Lam’s

tent, Shull had patrolled the park looking for dangerous

trees, and he was familiar with the tree that injured Lam.

During his daily foot patrols, Shull looked for trees with

dead spots, foliage loss, cankers, fungi, or trees with dead

branches that would signal a threat. If a tree looked

dangerous, he would remove it the same day or first thing

the next morning. If the tree did not pose an immediate

threat, he would make a mental note and return when he had

time to remove it.

Shull said that he had inspected this oak tree before it

fell, but he never saw any reason to believe that it was

dangerous. He saw no signs of distress in the main tree bole,

6 LAM V. UNITED STATES

such as fungi, cracks, the presence of insects, insect damage,

or signs of disease; and the tree canopy was green and

healthy. When he examined the tree after it fell, he saw that

its roots had broken off, and that it had fallen on a cluster of

trees next to it. He also found rot in the roots and in the center

bole that he could not have seen when the tree was standing. 2

Lam countered the Government’s case with an expert

arborist, Dr. Kent Julin. Dr. Julin has a doctorate in forestry,

and he specializes in assessing tree-risks. He disagreed with

Shull and said that Shull could have seen the rot before the

tree fell. He further explained that the tree had two large

holes in the lower trunk that had been there for at least

20 years. He thought the tree was a hazard, and it should

have been cut down. Lam relied on Dr. Julin to establish the

government’s negligence and for his opinion that the

American National Standards Institute (“ANSI”) A300,

part 9 standard imposed a mandatory duty to cut down the

tree.

After a hearing, the district court granted the

Government’s Motion to Dismiss for lack of jurisdiction

finding that the DFE barred Lam’s claims. The court

specifically found the ANSI standards did not apply to tree

maintenance at Lake Mendocino, and no mandatory policy

barred DFE immunity. The court also found that decisions

about tree safety were susceptible to policy analysis.

Accordingly, the court entered judgment for the

Government.

2

The government also offered the testimony of two other

employees, Christopher Schooley, the park manager, and Lance Pool, a

park ranger, who examined the tree after it fell. They both opined that

the tree showed no signs of distress before it fell.

LAM V. UNITED STATES 7

II. Analysis

As previously stated, this appeal turns on the Corps’

policies. In reaching its ruling, the district court carefully

examined the Lake Mendocino policies and found ample

evidence of discretion. Before analyzing these policies in

this opinion, it helps to review the law on the discretionary

function exception, and then armed with these established

legal concepts, turn to the plain language of the policies.

Understanding the complex law in this area and how it

applies to the Lake Mendocino policies is especially

important in Lam’s case because, as this Circuit

acknowledged in Terbush v. United States, “our case law

may not be in complete harmony on this issue,” i.e.,

discretion in national park safety cases. 516 F.3d 1125, 1136

(9th Cir. 2008).

A. The Discretionary Function Exception

i. DFE Supreme Court Cases and the

Berkovitz/Gaubert Test

The United States has sovereign immunity and cannot be

sued without its consent. One important immunity waiver

that allows suits against the federal government is the FTCA.

The FTCA permits private suits against the United States for

damages for loss of property, injury, or death caused by a

government employee’s negligence. See United States v.

S.A. Empresa de Viaco Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797, 808 (1984). Liability arises for these

acts if a private person would be liable to the claimant under

the law of the place where the act or omission occurred. Id.;

28 U.S.C. §1346(b)(1). Such acts are typically “ordinary

common-law torts.” Dalehite v. United States, 346 U.S. 15,

28 (1953). The government can be held liable in tort “in the

8 LAM V. UNITED STATES

same manner and to the same extent as a private individual

under like circumstances.” 28 U.S.C. § 2674.

The DFE, however, is an important exception to the

FTCA. The government does not waive immunity for tort

claims if the alleged tortfeasor was performing a

discretionary function or duty when he or she injured the

plaintiff. This is true even if the employee abused that

discretion. 28 U.S.C. § 2680(a). This kind of abuse is

typically simple negligence. So, if the DFE applies, it defeats

a plaintiff’s FTCA action. The applicable code section

explains when immunity is not waived, or stated another

way, which claims cannot go forward:

Any claim based upon an act or omission of

an employee of the government, exercising

due care, in the execution of a statute or

regulation, whether or not such statute or

regulation be valid, or 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). Therefore, where the DFE applies, the

United States has not waived its sovereign immunity, and the

district court lacks subject matter jurisdiction over a

plaintiff’s claim. GATX/Airlog Co. v. United States,

286 F.3d 1168, 1173 (9th Cir. 2002). Four key Supreme

Court cases, Dalehite v. United States, United States v. Varig

Airlines, Berkovitz v. United States, and United States v.

Gaubert, explain how this defense works and describe the

analysis a court should follow to test if the DFE applies.

LAM V. UNITED STATES 9

To succeed in district court under the FTCA, a plaintiff

must have suffered an injury, a federal employee must have

caused that injury, and state law must offer a legal theory

that makes that employee’s negligence actionable. Varig

Airlines, 467 U.S. at 808. But proving these three elements

is not enough if the government has a viable DFE defense.

If the government can show that the alleged injury arose out

of the employee’s discretionary acts, then the district court

must dismiss plaintiff’s case. Discretion is the watchword,

the byword of the DFE. Central then to the early stages of a

plaintiff’s FTCA claim is the discretion question, and the

district courts typically deal with the DFE when the

government either files a motion for summary judgment or,

as in this case, a motion to dismiss. 3

The government has the burden to prove this defense, so

to win dismissal, it must show that the DFE applies because

the employee’s acts were discretionary. GATX/Airlog Co.,

286 F.3d at 1174. If the employee acted with discretion, the

DFE restores the government’s immunity, and plaintiff

loses. The DFE is intended to “prevent judicial ‘second-

guessing’ of legislative and administrative decisions

grounded in social, economic, and political policy through

3

Lam argues that the district court erred by failing to convert the

Government’s Motion to Dismiss to a motion for summary judgment

because his expert created triable issues of material fact. We disagree.

The purported expert affidavit Lam relied upon from Dr. Julin is in itself

a legal nullity because it opined on the ranger’s potential negligence;

however, it is well-established that negligence is not part of the

discretionary function exception analysis. See Chadd v. United States,

794 F.3d 1104, 1111 (9th Cir. 1015) (“[W]hether reasonable care

required such action goes to the merits of Chadd’s negligence

claim[…][,] but at step one of the of the discretionary-function-exception

analysis all that matters is that there was, in fact, discretion.”). Moreover,

Lam has waived this argument because he did not raise this issue below.

Id. at 1110 n. 4.

10 LAM V. UNITED STATES

the medium of an action in tort.” Varig Airlines, 467 U.S. at

814. And as the Supreme Court further said about FTCA

immunity, “[i]t is neither desirable nor intended that the

constitutionality of legislation, the legality of regulations, or

the propriety of a discretionary administrative act should be

tested through the medium of a damage suit for tort.” Id.

at 809.

Accordingly, “[w]here there is room for policy judgment

and decision there is discretion.” Dalehite, 346 U.S. at 36.

So, if the policies allow an employee to make independent

policy judgments, then the DFE defeats plaintiff’s claim.

Berkovitz v. United States, 486 U.S. 531, 536, 546 (1988).

But if the “policy leaves no room for an official to exercise

policy judgment in performing a given act, or if the act

simply does not involve the exercise of such judgment, the

discretionary function exemption does not bar a claim that

the act was negligent or wrongful.” Id. at 546–47.

Furthermore, because the discretionary or non-

discretionary nature of the acts are the focus of the DFE, “it

is the nature of the conduct, rather than the status of the actor,

that governs whether the discretionary function exception

applies in a given case.” Varig Airlines, 467 U.S. at 813.

Importantly, the DFE covers all employees exercising

discretion, not just planners, administrators, and regulators.

Id. Indeed, “the acts of subordinates in carrying out the

operations of government in accordance with official

directions cannot be actionable.” Id. at 811.

Moreover, whether the discretion involved was abused

makes no difference; the government will still prevail.

28 U.S.C. § 2680(a); see also Varig Airlines, 467 U.S. at

808. This means that even if the employee’s discretionary

act is negligent, the district court should dismiss plaintiff’s

case. Indeed, in Dalehite, the Supreme Court repeatedly

LAM V. UNITED STATES 11

states that negligence is not an issue in the DFE analysis.

346 U.S. at 30–32. And the “degree of care used in

performing the activities are irrelevant to the application of

that doctrine.” Id. at 45–46. Thus, courts should put the

negligence issue aside on a DFE-based motion to dismiss

and focus its inquiry on whether the employee’s acts were

discretionary. This most often means that the court must

examine the applicable government policies to see if they

authorize or imply discretion or if they mandate specific

duties.

It is not just any discretion, however, that triggers the

DFE. The Supreme Court has created a two-part test, known

as the Berkovitz/Gaubert test, to determine the types of

discretionary acts covered by the DFE. First, “conduct

cannot be discretionary unless it involves an element of

judgment or choice.” Berkovitz, 486 U.S. at 536. Second, the

court must decide if “that judgment is of the kind that the

discretionary function exception was designed to shield.” Id.

“The exception, properly construed, therefore protects

only governmental actions and decisions based on

considerations of public policy.” Id. Following Berkovitz,

this Circuit aptly explained that “the key inquiry is not

whether the government employee has a choice, but whether

that choice is a policy judgment.” Arizona Maintenance Co.

v. U.S., 864 F.2d 1497, 1503 (9th Cir. 1989). This raises the

question about what public policy considerations support the

DFE. More specifically, did the employee’s acts involve “the

permissible exercise of policy judgment?” Berkovitz,

486 U.S. at 537.

Berkovitz offers some rules for analyzing policy

judgments. The DFE “will not apply when a federal statute,

regulation, or policy specifically prescribes a course of

action for an employee to follow.” Id. at 536. This is very

12 LAM V. UNITED STATES

important. If the policy is mandatory, it cannot be

discretionary. An employee has no discretion to deviate from

mandated procedures. Id. at 544. Guided by this directive,

the court must look at the policies to see if they mandate

certain actions that the employee failed to follow. If so, that

defeats the DFE.

If, however, the policies are not mandatory but rather

directly or implicitly give discretion to the employee, the

DFE defense survives this first step. It survives “because if

the policies…allow room for implementing officials to make

independent policy judgments, the discretionary function

exception protects the acts taken by those officials in the

exercise of this discretion.” Id. at 546. But the Supreme

Court offers more insight into dealing with the thorny

discretion issue.

The fourth Supreme Court case on the DFE is United

States v. Gaubert, 499 U.S. 315 (1991). Gaubert offers

additional guidance on how to analyze the DFE. In Gaubert,

the Supreme Court explained that:

When established governmental policy, as

expressed or implied by statute, regulation, or

agency guidelines, allows a government

agent to exercise discretion, it must be

presumed that the agent’s acts are grounded

in policy when exercising that discretion. For

a complaint to survive a motion to dismiss, it

must allege facts which would support a

finding that the challenged actions are not the

kind of conduct that can be said to be

grounded in the policy of the regulatory

regime. The focus of the inquiry is not on the

agent’s subjective intent in exercising the

discretion conferred by statute or regulation,

LAM V. UNITED STATES 13

but on the nature of the actions taken and on

whether they are susceptible to policy

analysis.

Id. at 324–325 (emphasis added). So, if the policies allow the

exercise of discretion in tree maintenance, the agent’s acts or

failures to act are presumed to be discretionary. In other

words, if the Corps’ policies allow discretion, then this panel

should presume that Shull and other Corps employees acted

with discretion.

It follows then that to avoid dismissal, a plaintiff must

allege facts that support a finding that the government

employee’s negligence was not grounded in policy

judgments. Furthermore, and very importantly, the district

court must not focus on or even consider the employee’s

actual thinking about what to do or not do, or the status of

the employee, or the “routine or frequent nature” of the

discretionary act. See Gaubert, 499 U.S. at 334. The court,

however, must consider whether the actions the employee

took were susceptible to policy analysis. Id. at 326.

That means in this case the Corps does not have to show

that Shull or some other Corps employee analyzed or

considered policies about managing trees in general or this

oak tree in particular. If managing trees was susceptible to

policy analysis, then the Corps will prevail on the DFE

defense.

ii. Ninth Circuit DFE Cases Applying the

Berkovitz/Gaubert Test

It is important now to move from the Supreme Court

cases on the DFE to those Ninth Circuit opinions that apply

the Supreme Court’s analysis. The following five Ninth

Circuit opinions control the analysis and show that to

14 LAM V. UNITED STATES

properly analyze Lam’s case, we must closely scrutinize the

Corps’ policies in their totality to determine whether they are

discretionary or mandatory.

In Childers v. United States, an 11-year-old boy died

after falling off an icy, unmaintained mountain trail in

Yellowstone National Park. 40 F.3d 973 (9th Cir. 1994), as

amended (Jan. 17, 1995). The plaintiffs argued that the

National Park Service (“NPS”) knew that the unmaintained

trail was dangerous in winter; therefore, the NPS had a duty

to warn of the danger that was not discretionary. The

plaintiffs also argued that NPS safety manuals required

warning signs. Id. In other words, the NPS allegedly violated

its own mandatory standards. Id. The government responded

that the policies were not mandatory, and the park rangers

had discretion to balance competing policy concerns. Id.

at 974–75.

The Childers panel agreed with the government and held

that the DFE protected the NPS employees’ decisions

regarding trail maintenance. The panel largely adopted the

findings of the district court that the NPS policies left it to

the park employees’ discretion to post signs or close trails,

and this discretion satisfied the first part of the

Berkovitz/Gaubert test. See id. at 975–76.

On the second part of the Berkovitz/Gaubert analysis, the

panel accepted the government’s argument that park rangers

had the discretion to balance competing policy concerns. As

the court explained: “Although the Childers insist that

several park guidelines make the posting of warning signs

and other decisions nondiscretionary, the record points to a

statute, … regulations, and guidelines which leave these

decisions, either explicitly or implicitly, in the hands of NPS

rangers.” Id. at 975–76. Hence, the panel affirmed the

district court’s ruling on immunity. This case shows how

LAM V. UNITED STATES 15

closely courts should look at the policies to determine

whether they are discretionary or mandatory.

In another tragic case, Valdez v. United States, the

plaintiff fell 90 feet off Ella Falls in Kings Canyon National

Park and broke his back. 56 F.3d 1177 (9th Cir. 1995).

Among other negligence claims, he alleged the NPS failed

to warn about the dangers at the falls. Again, in this case,

plaintiff contended that the NPS policies imposed mandatory

safety duties for park rangers. The panel disagreed and found

that the policies outlined general policy “goals” for visitor

safety, not mandatory requirements. As the panel explained,

“[t]hese guidelines can be considered mandatory only in the

larger sense that they set forth broad policy goals attainable

only by the exercise of discretionary decisions.” Id. at 1180.

Specifically on the warning claim, the Valdez panel

found that the NPS’s Loss Control Management Guidelines’

broad mandate to warn about special hazards “through

educational materials, brochures, pamphlets, and the like

necessarily encompasses an element of discretion in

identifying such hazards.” Id. As the court explained, it is

too much to ask the NPS to warn about everything. Such

decisions implicate public policy concerns and are therefore

discretionary. Id. Again, we see that the court should look at

all the relevant policies in their totality and how they fit

together to determine if they are discretionary or mandatory.

In Morales v. United States, a helicopter pilot struck an

unmarked cable suspended 40 feet above the Verde River in

the Prescott National Forest. 895 F.3d 708 (9th Cir. 2018).

The cable was virtually invisible from more than 100 feet

away. The cable was not marked because it did not meet the

criteria for marking under United States Geological Survey’s

(“USGS”) standards. No statute, regulation, or rule required

marking cables below 200 feet, so “the decision of whether

16 LAM V. UNITED STATES

to mark the cableway was a result of considered judgment

and choice.” Id. at 714. The panel recognized that factors

such as safety interests, installation and maintenance costs,

and the natural beauty of the river showed that no “course of

action” was mandated. Id. That took care of the first step of

the Berkovitz/Gaubert inquiry.

The panel then considered whether deciding not to mark

the cable was “susceptible to policy analysis grounded in

social, economic, and political concerns.” Id. The panel

enumerated several policy concerns including the risk of

confusing pilots who expected cables to be marked at

200 feet or above and the risks to USGS employees in

installing and maintaining the markers; the costs for

installing and maintaining the cable markers; the likelihood

of vandalism; and the environmental choices about

minimizing the visual distractions around the Verde River,

which is designated as a “Wild and Scenic River.” Id. at 715.

These policy considerations satisfied the second part of the

Berkovitz/Gaubert test.

But the most important ruling in Morales involved the

question about whether the DFE even applied in safety cases.

The plaintiff argued that the DFE did not apply to public

safety decisions. The panel disagreed. It explained that

“[t]his sweeping exemption would severely undermine the

discretionary function exception and is unsupported by our

precedent. In case after case, we have considered the

government’s balancing of public safety with a multitude of

other factors.” Id. at 716. The panel further explained that it

is only in cases where the government has no evidence of

policy discretion to support DFE immunity that the

immunity does not apply. Id.

Next, in Gonzalez v. United States, the panel found that

the DFE immunized the FBI for failing to disclose a possible

LAM V. UNITED STATES 17

home invasion by the Minutemen American Defense gang.

814 F.3d 1022 (9th Cir. 2016). The Minutemen opposed

illegal immigration and patrolled the Mexican border

searching for illegal aliens. The FBI got a tip that members

of the gang planned to invade a home to steal drugs,

weapons, and money. Several days later three members of

the gang attacked the Gonzalez’s home, killed the plaintiff’s

husband, wounded the plaintiff, and killed her daughter. Id.

at 1025–26. The wife sued the FBI for not alerting local law

enforcement to the danger so that she and her family could

have been protected from the threat.

The Gonzalez panel applied the proper two-part analysis

and found that the DFE immunized the FBI. The panel

reviewed the Attorney General guidelines for the FBI.

Although factually quite different from a tree safety case, the

opinion guides us in interpreting certain policy language,

especially the use of the word “shall.” The FBI policy said:

When credible information is received by an

FBI field office concerning serious criminal

activity not within the FBI’s investigative

jurisdiction, the field office shall promptly

transmit the information or refer the

complainant to a law enforcement agency

having jurisdiction, except where disclosure

would jeopardize an ongoing investigation,

endanger the safety of an individual, disclose

the identity of a human source, interfere with

a human source’s cooperation, or reveal

legally privileged information. If full

disclosure is not made for the reasons

indicated, then, whenever feasible, the FBI

field office shall make at least limited

disclosure to a law enforcement agency or

18 LAM V. UNITED STATES

agencies having jurisdiction, and full

disclosure shall be made as soon as the need

for restricting disclosure is no longer present.

Id. at 1029 (emphasis added). Note that the word “shall” is

used three times in this guideline. “Shall” typically means

mandatory, but the panel did not find that the word “shall”

controlled the DFE question. The panel described the many

judgments that FBI agents had to consider before disclosing

possible criminal activity. Id. at 1032.

This decision teaches the importance of analyzing

policies that contain mandatory words in their overall

context. The panel said that “the presence of a few, isolated

provisions cast in mandatory language does not transform an

otherwise suggestive set of guidelines into binding agency

regulations.” Id. at 1030. Furthermore, viewed in the context

of that case, “mandatory-sounding language such as ‘shall’

does not overcome the discretionary character of the

Guidelines.” Id. As a result, the DFE immunized the FBI’s

actions. Hence, we must compare any mandatory words in

the Lake Mendocino policies with the overall scope of the

policies to see if, in their totality, the policies are mandatory

or discretionary. The use of a few mandatory words like

“shall” does not create a mandatory policy if the policy

otherwise allows for discretion.

Finally, in Chadd v. United States, a 370-pound

mountain goat gored a hiker’s femoral artery, and he bled to

death. 794 F.3d 1104 (9th Cir. 2015). National Park Service

officials in Olympic National Park knew that this goat and

other goats had become habituated to park visitors. They also

knew that they had a mountain goat problem because park

visitors had complained that goats were standing their

ground, following or chasing people, rearing up, and pawing

LAM V. UNITED STATES 19

the ground. Id. at 1107. They had become aggressive and

threatening.

Recognizing this problem, park officials began to warn

visitors verbally and with trail signs. They also shot goats

with paintballs and bean bags to change the goats’ behavior.

In fact, park rangers had considered relocating the goat that

killed the hiker to another park because that goat had become

increasingly aggressive. But the rangers spared the goat. Id.

Susan Chadd, the deceased hiker’s wife, filed a

complaint and alleged that park officials were negligent in

not killing the goat until after it had killed her husband. In

analyzing the DFE issue, the court noted that park policies

did not mandate what should be done with an aggressive

mountain goat, so park rangers had discretion in how to

solve the goat problem. Id. at 1110, 1111. That shifted the

legal question from the first step of the Berkovitz/Gaubert

test to the second step.

On the second step, the panel asked if the rangers’

responses to the goat threat were of the kind that Congress

intended the DFE to protect; that is, were they susceptible to

policy judgments. Id. at 1109. Importantly, the panel noted

that if park policies and regulations allowed discretion, there

is “a strong presumption that a discretionary act authorized

by the regulation involves consideration of the same policies

which led to the promulgation of the regulations.” Id. (citing

Gaubert, 499 U.S. at 324). The panel found that the DFE

immunity applied to the acts described above. This decision

is important because it emphasizes the Gaubert presumption

that flows from discretionary policies. These five Ninth

Circuit opinions show the elements for the proper analysis

for Lam’s case.

20 LAM V. UNITED STATES

Lam’s counsel argues that Kim v. United States, 940 F.3d

484 (2019), should control this panel’s ruling because it is a

tree safety case. The Kim panel found that the DFE did not

apply when two young boys were killed after a tree limb fell

on their tent. But that case turned on Directive 25, part of

Yosemite National Park policies. Id. at 488. And as the panel

explained, once the Park officials undertook to inspect the

trees in the park, they had to follow the established policies.

Id.

Directive 25 set forth the “Hazard Tree Management”

program with a Seven Point system that required

documenting and quantifying hazardous trees with a rating

system. As the panel described it: “The system provides

specific criteria for how to rate each component based on the

tree’s visible features and the nature of the surrounding area.

Trees with a total rating of five or higher are considered

‘high’ risks and, according to directive, ‘will require some

type of abatement/mitigation.’” Id. Here, nothing in the

Corps’ policies at Lake Mendocino even approaches the

level of specificity found in Directive 25 or requires or

mandates abatement or mitigation of certain trees. Thus, Kim

does not control or assist in deciding the outcome of Lam’s

case. 4

Now, armed with this Supreme Court and analogous

Ninth Circuit precedent, we turn to the relevant Corps

policies governing Lake Mendocino and how the above

precedent dictates the outcome of this case.

4

Two out-of-circuit cases help with analyzing dangerous tree cases.

Merando v. United States, 517 F.3d 160 (3rd Cir. 2008) and Autery v.

United States, 992 F.2d 1523 (11th Cir. 1993). In both cases, those

circuits found that the DFE applied.

LAM V. UNITED STATES 21

B. Analyzing the Lake Mendocino Policies

i. The Applicable Policies are Discretionary

Above, we have outlined the Supreme Court precedent

for the Berkovitz/Gaubert test and its Ninth Circuit progeny.

We now apply this precedent to the plain language of the

policies that controlled the actions of Shull and the Corps’

employees at Lake Mendocino. In doing so, we must answer

two questions: 1) Did the policies allow for discretion? and

2) Were those policies susceptible to the policy analysis the

DFE was designed to protect? Because the answer is yes to

both questions, the DFE applies.

The relevant policies are found in the Operational

Management Plan (OMP), Engineering Manual 385-1-1

(“EM 385-1-1”), specifically Section 31, and Engineering

Manual 1110-1-400: Engineering and Design Recreation

Facility and Customer Services Standards. Lam argues that

the ANSI A300 Part 9 also applies and imposes mandatory

duties for identifying and removing hazardous trees. But, as

explained below, that argument is wrong.

First, we turn to the OMP. The OMP by its own terms is

meant as a “guide”; it “guides use, development, and

management of the natural and man-made resources.” It

states that its “Guiding Objectives” are to:

Maintain a diversity of productive fish and

wildlife habitat for both game and non-game

species, accomplished through: woodland

management and other vegetative

manipulation; grassland maintenance and

preservation; fisheries enhancement; other

management practice. . . .

22 LAM V. UNITED STATES

How to best follow this guide, however, is left to the Lake

Mendocino rangers’ discretion. That is not to say that there

are no general requirements for rangers inspecting,

maintaining, and removing trees, only that the OMP does not

specify how to carry out these general requirements.

Generally, rangers should conduct “daily

maintenance/safety inspections” in all “developed

recreational areas,” as well as safety inspections for the

ranger to “survey operational activities, facilities,

equipment, and procedures for safety hazards. Personnel will

take or recommend actions necessary to remove or isolate

hazards. The appointed Safety Officer will conduct such

safety inspections as directed or as requested.” Although the

OMP does require daily inspections, there is no requirement,

checklist, or criteria for how to conduct these inspections or

what they should cover. That is left out of the policy

language and left up to the ranger’s discretion. See Morales,

895 F.3d at 714 (finding where no specific guidance was

provided in the policy, “employees were left to exercise their

judgment”).

Additionally, for maintaining and preserving trees,

rangers should implement a tree pruning program to remove

dead trees, limbs, and snags before they become a public

hazard. And maintenance staff is tasked with improvement

cutting and thinning of trees for both safety and aesthetic

reasons. Although the OMP has a Five-Year Plan, Task 9,

for Hazard Tree Removal, Task 9 includes only the

following general information:

Initiation Date: October 2013

Completion Date: May 2014

Cost: $2800 (volunteer labor value - $22,320)

LAM V. UNITED STATES 23

Description: Removal of approximately 40 hazard trees

Manpower Requirements: 1 COE Ranger plus CDC

labor

Equipment Requirements: chainsaws, protective gear,

splitter

Therefore, although the Corps is required to remove dead

trees and dead limbs, no mandatory criteria exist for

identifying hazardous trees. Here, the tree that harmed Lam

was not dead. In addition, the OMP contains no specific

mandate for what constitutes a weak, damaged, diseased, or

undesirable tree. Although the OMP implements a time

frame for removing trees, a budget, an approximation of how

many trees to remove, and even the equipment and man-

power requirements for cutting trees, it mentions no specific

criteria for identifying dangerous trees. See Valdez, 56 F.3d

at 1180 (finding that while the “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”). In other

words, the very nature of these general requirements allows

the exercise of Corps employees’ judgment and discretion.

Indeed, implementing the general OMP requirements is

left to the Park Ranger. The Ranger is to “consult the OMP

Five Year Program to prepare annual work plans and

reappraise wildlife habitat conditions.” And for

maintenance, the OMP states, “the need for maintenance of

constructed habitat will be determined through program

monitoring and observation. Priority of maintenance will be

determined by Senior Park Ranger, depending on available

manpower and funds.” In other words, it is up to the Senior

Park Ranger to use his judgment in carrying out the OMP

24 LAM V. UNITED STATES

requirements while weighing policy choices, such as costs

and available volunteers.

And because the OMP contains no criteria or mandates

for identifying and removing hazardous trees, it implies that

employees like Shull will exercise discretion and make

policy judgments. The absence of mandatory language about

safety risks gives much discretion to Corps employees.

Berkovitz, 486 U.S. at 546 (noting that where policies “allow

room for implementing officials to make independent policy

judgments, the discretionary function exception protects the

acts taken by those officials in the exercise of this

discretion”). So, because the policies in the OMP are

discretionary, they fall squarely within the DFE.

But Lam does not rely solely on the policy language in

the OMP. He argues that the ANSI A300, Part 9 standard

imposes specific mandates for identifying and removing

hazardous trees that defeat the DFE. This argument fails

because a straightforward reading of policies does not

support it. Yes, the ANSI standards are mentioned twice in

the policies. But they are listed as a “reference” in EM 385-

1-1 and as a general requirement in EM 1100-400-1. Neither

of these manuals specifies how to identify or assess unsafe

trees.

EM 385-1-1, Section 31, as the district court rightly

determined, deals exclusively with mandatory safety

requirements applicable to Corps employees who engage in

the process of removing trees, as well as the proper safety

methods for pruning, felling, and chipping trees. These

requirements apply to the safety of Corps employees, not the

safety of the general public. EM385-1-1, Section 31 has

nothing to do with methods for maintaining or identifying

dangerous trees. Moreover, the ANSI A300 standards are

listed as a “reference” in this manual, and a reference is not

LAM V. UNITED STATES 25

a requirement. Likewise, EM 1110-1-400 does not deal with

tree maintenance or hazard assessment or specify methods

required to perform those tasks. In fact, Lam does not even

address, or rely on EM 1110-1-400 in his brief. Thus, the

ANSI standards do not preclude sovereign immunity under

the DFE.

Even if the ANSI standards applied, they are inherently

discretionary. They are guidelines for devising a tree

assessment plan in which “[o]bjectives shall be based on the

context of the situation and client expectations.” They do not

impose a tree assessment plan, and “they are not intended to

be adopted in their entirety into laws and regulations or as

work specifications without additional information and

clarification.” See Valdez, 56 F.3d at 1180; see also

Gonzalez, 814 F.3d at 1030 (finding the existence of some

mandatory provisions “does not transform an otherwise

suggestive set of guidelines into binding agency

regulations”) (citation omitted). To the extent in which the

ANSI standards are used, they allow for judgment and

discretion on the part of the tree professionals to use them

for their specific context and needs. Thus, Lam’s arguments

that the ANSI standards, specifically A300, Part 9, are

mandatory, fail.

Because the Lake Mendocino policies have no specific

mandatory requirements for maintaining, identifying, or

removing dangerous trees, Shull had discretion to act

according to his judgment in assessing trees. This discretion

satisfies the first part of the Berkovitz/Gaubert test. Now we

will turn to the second part of the test.

26 LAM V. UNITED STATES

ii. The Rangers Decisions as to Tree Maintenance

Were Susceptible to Policy Considerations

As an initial matter, and as noted above, there is a

presumption that where the express or implied government

policy “allows a government agent to exercise discretion, it

must be presumed that the agent’s acts are grounded in

policy when exercising that discretion.” Gaubert, 499 U.S.

at 324 (emphasis added); see also Chadd, 794 F.3d at 1104

(same). Although we accept this presumption, our analysis

need not rest on the presumption because here, the OMP

specifies various park policy considerations to be weighed,

considered, and balanced in making decisions for Lake

Mendocino, including:

• The objective to provide “the highest possible

recreational experience for the least amount of

expenditure.”

• The objective to provide “quality recreational

experiences to a wide spectrum of the public while

ensuring maximum sustained use of park resources

consistent with their carrying capacity and aesthetic

and biological values.”

• Safe and healthful recreation opportunities for

visitors.”

• “Protection of resources.”

• “Preservation & [e]nhancement of aesthetic integrity

of park resources[.]”

The OMP also notes specific policy considerations as to the

removal of trees:

LAM V. UNITED STATES 27

• “Since cutting of trees is [a]esthetically undesirable

and conflicts with recreational usage, it’s done

during non-peak recreation seasons whenever

possible.”

• “[A] mature tree, if destroyed, will leave a void that

will take years to replace. Therefore, it is extremely

important that all operation and maintenance

activities be conducted in a manner that will

minimize negative impacts on desirable vegetation.”

So, according to the terms of the OMP, the decision of

whether to cut down a tree is susceptible to competing policy

considerations. One goal is to maximize recreation

opportunities while another goal is to protect resources. One

cannot maximize both. These goals also include preserving

and enhancing park resources and aesthetics. Keeping the

Lake beautiful will eventually compete with maximizing

play. And aesthetics is a policy issue. See ARA Leisure

Services v. U.S., 831 F.2d 193, 195 (9th Cir. 1987) (finding

that deciding not to put up guardrails was grounded in social

and political policy because NPS policies required that roads

be designed to be “aesthetically pleasing” and to go “lightly

upon the land utilizing natural support wherever possible.”).

Not to mention that live oaks “provide food and cover for the

acorn woodpecker, red-shafted flicker, titmouse, nuthatch

and scrub jay” among other wildlife. Indeed, both Shull and

Schooley reiterated in their affidavits that the OMP

“provide[s] guidance to balance competing policy

considerations that impact tree management decisions,

including: public safety, employee safety, ecology, wildlife

preservation, staffing and budgetary constraints, and park

aesthetics.”

28 LAM V. UNITED STATES

These competing policy considerations, such as safety,

budget, staffing, wildlife and habitat preservation, impact on

the natural vegetation, and aesthetics are all the type of

policy decisions that are protected under the DFE. See, e.g.,

Valdez, 56 F.3d at 1180 (“Here, the challenged conduct

clearly implicates a choice between the competing policy

considerations of maximizing access to and preservation of

natural resources versus the need to minimize potential

safety hazards.”); Childers, 40 F.3d at 976 (noting DFE

applied where policy considerations included the need to

“balance access with safety, and take into account

conservation and resources”). It is sufficient that Shull’s

decisions would be susceptible to these policy

considerations; he need not have actually weighed them.

Gonzalez, 814 F.3d at 1034 (“The discretionary function

exception applies so long as the challenged decision is one

to which a policy analysis could apply.”).

Moreover, this is not a case where no evidence exists in

the record indicating policy considerations. For example, in

Summers v. United States, the plaintiffs alleged that the

government had failed to warn visitors at Rodeo Beach of

the hazards of stepping on hot coals at the beach’s fire pits.

905 F.2d 1212, 1214 (9th Cir. 1990). In that case, the

government offered “no evidence . . . that NPS's failure to

post warnings of the sort that would have prevented [the

plaintiff’s] injury was the result of a decision reflecting the

competing considerations of the Service's sign policy.” Id.

at 1215.

Here, social and political policy questions, maximizing

aesthetics, and conserving natural resources inevitably

become competing interests, especially when you add the

public’s full enjoyment of the Lake. Competing interests and

policy concerns require balancing and weighing; balancing

LAM V. UNITED STATES 29

and weighing involve discretion; and policy discretion

invokes the DFE. As noted above, in Childers, the plaintiffs

argued that failure to warn of known dangers on an icy

mountain trail was not discretionary. But the panel

disagreed, and in affirming the DFE defense, the panel said:

“Park rangers used their discretion to balance, within the

constraints of the resources available to them, a statutory

mandate to provide access with the goal of public safety.

This decision was precisely the kind the discretionary

function exception was intended to immunize from suit.”

Childers, 40 F.3d at 976. Lam’s case is in line with Childers,

Valdez, Morales, and Gonzalez, and as such, Lam’s

argument that these are not the type of policy considerations

protected under the DFE fails, and the DFE applies in this

case.

III. Conclusion

Lam has not shown any specific mandatory duties, he has

not defeated the Gaubert presumption, and he has not

negated the evidence of discretion for policy judgments. The

DFE applies. The district court properly dismissed Lam’s

case, and we affirm.

AFFIRMED.

ROYAL, District Judge, concurring:

I write separately to address the dissent.

First, the dissent contends that Kim should control this

court’s analysis, in part, because this case does not involve a

policy question. Rather, it turns on technical questions about

inspecting and removing a dangerous tree. But as explained

30 LAM V. UNITED STATES

above, although factually very similar, the policies are very

different. In Kim, the technical requirements were written

into the policies, but here they are not. The Lake Mendocino

policies allow broad discretion; the Yosemite National Park

polices were technical and tight, which left the park rangers

with technical considerations alone. This is the decisive

difference in the two cases and the reason Kim does not

control our ruling.

Second, the dissent cites Oberson v. U.S. Department of

Agriculture, Forest Service, 514 F.3d 989 (9th Cir. 2008), to

support reversal. But in that case, unlike Lam’s case, the

government offered no evidence “that its failure to post a

warning was the result of a policy decision.” Id. at 997. As

the court explained: “In the absence of any evidence that the

failure to post a warning or remedy the hazard was the

product of a policy choice, we conclude that the

discretionary function exception did not shield the Forest

Service from liability.” Id. 998. But, to the contrary, here the

government offers substantial evidence of policy discretion.

Third, the dissent cites Nanouk v. United States, No. 19-

35116, —F.3d —, slip op. at 20 (9th Cir. Sept. 2020). In that

case the plaintiff asserted three negligence theories against

the government for failing to clean up toxic PCBs that leaked

into her property from an abandoned radio relay station in

Alaska. This court affirmed the district court’s ruling in the

government’s favor on Nanouk’s first two claims because

the DFE applied. Id. at 4.

Plaintiff’s first claim involved negligent supervision of

government contractors who dumped PCBs on the ground.

Plaintiff’s second cause of action claimed that the

government was too slow in remediating the polluted

worksite, which caused PCBs to leech into her property. Id.

Note that both theories involved the implementation stage.

LAM V. UNITED STATES 31

The district court did not find against the government on

Nanouk’s third claim, in which Nanouk alleged that the

government failed to discover and remediate a PCB hot spot

sooner, which damaged her property and her health.

This court reversed the district court’s ruling on the third

issue but only to remand it for further consideration. The

panel explained that “we are unable to determine whether the

government’s decisions were ‘grounded in social, economic,

and political policy.’” Id. at 7 (quoting Varig Airlines,

467 U.S. at 814). Unlike in Lam’s case, the government

offered no factual showing to defeat Nanouk’s third claim.

And as this court noted in Nanouk, “[t]he key factor in

identifying judgments that are protected by the discretionary

function exception is the presence of ‘competing policy

considerations’ that must be weighed.” Id. at 7. Here, the

government shows these policy considerations. Likewise,

the government showed these considerations for the

plaintiff’s first two claims in Nanouk but failed to do so for

Nanouk’s third claim. Hence, Nanouk does not support the

implementation exception. In fact, it supports the majority’s

opinion.

Fourth, the dissent further contends that deciding to

remove a dangerous tree arises at the implementation stage,

and the DFE does not protect acts of implementation, only

design stage actions. This “implementation exception,”

sometimes called the undertaking-a-duty exception, is a

sticky strand in the tangled web of Ninth Circuit DFE law

found in cases the dissent cites like Kim, Whisnant, and Bear

Medicine. These opinions are not in harmony with

countervailing cases like Childers, Valdez, Morales,

Gonzales, and Chadd, which all involved some element of

implementing or failing to implement safety precautions, but

in which the courts applied the DFE and dismissed the

32 LAM V. UNITED STATES

plaintiffs’ claims. The same applies in Dalehite, Varig

Airlines, and Gaubert, which all involve implementation

issues.

In addition, the implementation exception contradicts

Supreme Court cases and the Berkovitz/Gaubert analysis.

Under the implementation exception, there can be no policy

judgments at the implementation stage. This, in turn, often

ends with the unstated premise that once government

workers move to the jobsite, nothing they do can involve

policy decisions, so everything they do on jobsites lacks

DFE protection. This contradicts the plain language in

Dalehite that the “acts of subordinates in carrying out the

operation of government in accordance with official

directions cannot be actionable.” 346 U.S. at 36. This is a

broad and sweeping rule. Consequently, policy

“implementing” employees do not lose the DFE defense

simply because they are implementing or because they are

on the jobsite or because they are dealing with safety issues.

There is no time/place exemption for DFE policy decisions.

Furthermore, the dissent cites the Restatement (Second)

of Torts §324A (Am. Law Inst. 1965) for the undertaking a

service rule. The undertaking a service rule states the same

legal proposition as undertaking a duty. The Restatement,

however, is not state law unless a state adopts it, and then it

is no longer the Restatement. Only state law theories work

for FTCA claims, not Restatement theories. And when the

theory becomes a state law cause of action, it is subject to

the DFE. But there are more problems with the

implementation exception.

Importantly, a close reading of the cases that Kim,

Whisnant, and other decisions rely on for the implementation

exception shows a misreading of those cases. For example,

Whisnant cites several decisions for the implementation

LAM V. UNITED STATES 33

exception that close scrutiny shows were decided against the

government for other reasons consistent with the

Berkovitz/Gaubert analysis. For example, in ARA Leisure

Servs. v. United States, 831 F.2d 193 (9th Cir. 1987), the

panel followed the Berkovitz/Gaubert analysis, not an

implementation theory. In ARA Leisure a tour bus veered off

a dangerous road in the Denali National Park. Plaintiffs

alleged negligent design, construction, and maintenance of

the road. Construction and maintenance involve

“implementation.” Plaintiffs specifically claimed that the

National Park Service should have put up guard rails to

protect travelers. This is a safety issue case like almost all

the other cases cited in this opinion.

The panel held that the decision to design and construct

the road without guard rails was grounded in social and

political policy. Id. at 195. Hence, those decisions had DFE

immunity. But improperly maintaining the road allowed no

immunity because the duty to maintain the road arose from

the design contract. It was not a science or technical issue

that controlled the court’s decision nor the fact that the

negligence occurred at the implementation stage. Rather,

evidence in the record showed that Park Service standards

explicitly required that park roads “conform to the original

grade and alignments” and that “graded roads be firm, [and]

of uniform cross section.” Id. In other words, properly

maintaining the roads was mandatory according to the

contract, so the DFE did not apply.

Next, Kennewick v. United States, 880 F.2d 1018 (9th

Cir. 1989), is an important Ninth Circuit case that Whisnant

misconstrued for both the scientific-technical exception and

the implementation exception to the DFE. In that case,

Plaintiff’s damages occurred when an irrigation canal that

the United States Bureau of Reclamation (“USBR”) had

34 LAM V. UNITED STATES

designed and constructed broke in two places. In Kennewick,

the panel followed Berkovitz and found that the safety and

engineering standards were mandatory and specific, so the

DFE did not apply to building the canal. Id. at 1033.

In Kennewick, the safety standards arose out of the

construction contract. Although designing the canal

involved many technical, economic, and social

considerations that had DFE immunity, the construction

failures did not. Id. at 1029. The contract specified how the

USBR should build the canal’s embankments. It mandated

that the entire surface of the foundation be scarified or

plowed to a depth of not less than six inches. Id. at 1030. The

USBR did not comply with the contract because it did not

prepare the foundation, and the canal failed. On plaintiff’s

negligent construction claim, the DFE did not apply because

there was no element of policy judgment in face of a contract

requirement. Obviously, Kennewick involved scientific and

technical questions at the implementation stage—canal

building. But the case turned on the government’s failure to

comply with the contract, and the government’s failure to

comply with a contract allowed no room for policy

judgments. Id. at 1026.

Importantly, the court further explained that the DFE

does not stop at the planning stage. Indeed, as this court said

in Kennewick, “[a] matter does not fall outside the

discretionary function exception merely because the

decision to embark on an activity has already been made.

Were that the case, Dalehite and Varig would be

eviscerated.” Id. at 1024–25. Indeed, one of the most

important protections required by the Supreme Court’s

analysis is eviscerated—the Gaubert presumption. The

implementation cases treat this presumption as though it

does not exist. That matters in Lam’s case because the

LAM V. UNITED STATES 35

dissent concedes that the Lake Mendocino policies allow its

employees discretion in removing trees.

The Whisnant panel also relied on Marlys Bear Medicine

v. United States, 241 F.3d 1208 (9th Cir. 2001). In Bear

Medicine the panel said that “[t]he [g]overnment cannot

claim that both the decision to take safety measures and the

negligent implementation of those measures are protected

policy decisions.” Id. at 1215. But the Supreme Court’s

ruling in Varig Airlines directly contradicts this statement.

In that case a fire started in the towel disposal area below

the sink in one of the lavatories on a Boeing 707 that

destroyed the airliner and killed 124 people. The Civil

Aeronautics Agency (“CAA”) had certified that the Boeing

707’s design and specifications satisfied minimum safety

standards. 1 Varig Airlines, 467 U.S. at 800. Plaintiffs’ chief

claim was that the CAA had negligently inspected the

Boeing 707. Id. at 801. In other words, at the implementation

stage of certifying the aircraft, the CAA failed in undertaking

the technical task, an engineering task, of inspecting the

aircraft. The CAA had devised and implemented a spot-

check plan for such inspections.

About this spot-check plan and its implementation, the

Supreme Court explained that the plaintiffs’ negligent

inspection claim challenged both the decision to implement

the plan and applying the plan to a particular aircraft. Id.

at 819. The court then held that “both components of

respondents’ claim are barred by the discretionary function

1

The Civil Aeronautics Agency later became the Federal Aviation

Administration (“FAA”). The court uses both names in the opinion.

36 LAM V. UNITED STATES

exception to the Act.” Id. Applying the plan to the plane is

classic implementation.

The court further specifically noted that “[i]t follows that

the acts of FAA employees in executing the ‘spot-check’

program in accordance with agency directives are protected

by the discretionary function exception as well.” Id. at 820.

Thus, contrary to Bear Medicine, the Supreme Court held

that both deciding to undertake safety measures and

negligently implementing those measures enjoy DFE

protection. Indeed, the Supreme Court described the Ninth

Circuit’s failure in ruling on this case. “The Court of Appeals

viewed the inspection of aircraft for compliance with air

safety regulations as a function not entailing the sort of

policymaking discretion contemplated by the discretionary

function exception.” Id. at 802. But the Supreme Court said

it did. Id. Inspecting is implementing, and the essence of

Lam’s claim arises out of the alleged failure to properly

inspect this tree to identify it as dangerous. This is like the

FAA’s failure in Varig Airlines: the failure to properly

inspect the Boeing 707 and identify the hazard.

But there is another problem with Bear Medicine. The

panel said that “[t]he government cannot claim that both the

decision to take safety measures and the negligent

implementation of those measures are protected by policy

decisions. This argument would essentially allow the

government to administratively immunize itself from tort

liability under applicable state law as a matter of policy.”

Bear Medicine, 241 F.3d at 1215. The first problem with this

idea is obvious. Negligence does not play a role in the DFE

analysis. The second problem is also obvious. Congress did

intend to immunize FTCA claims for negligence if the

negligence arose from policy judgments. Indeed, as the

Supreme Court explained in Dalehite, the DFE covers all

LAM V. UNITED STATES 37

employees exercising discretion for both negligence and

wrongful acts. Id. at 967.

Next, on the undertaking-a-duty exception, one further

step of analysis helps. The argument for this exception

arises, not completely, but significantly from another

Supreme Court case—Indian Towing Co., Inc. v. United

States, 350 U.S. 61 (1955)—and Whisnant cites it as

authority. Whisnant v. United States, 400 F.3d 1177, 1182

(9th Cir. 2005).

Indian Towing is a simple case. The U.S. Coast Guard

operated a lighthouse on the Mississippi coast.

Unfortunately, the light that guided mariners sailing up the

coast burned out, the Coast Guard did not replace it, and a

tug hauling a cargo of fertilizer crashed into an island and

lost the cargo. Indian Towing, 350 U.S. at 62–63. The

plaintiff filed an FTCA claim against the Coast Guard. In

finding against the government, the court explained that

once it undertook the duty to operate the lighthouse, it had

to exercise due care to keep it working. Id. at 126–27.

The problem with using Indian Towing to set up this

exception to the DFE is that the government did not raise

that defense in this case. Because, as the Supreme Court

noted in Varig Airlines, “[s]ignificantly, the Government

conceded that the discretionary function exception was not

implicated in Indian Towing . . . .” Id. at 812. But although

the undertaking-a-duty theory may offer a tort theory for an

FTCA claim, Indian Towing does not say that the DFE does

not apply in undertaking-a-duty claim. In fact, as this court

stated in Kennewick, Indian Towing “was devoted to

explaining why the government’s argument failed; it did not

explicate the scope of the discretionary function exception.”

880 F.2d 1018, 1023 (9th Cir. 1989). In summary, the

implementation exception, as it has developed in many cases

38 LAM V. UNITED STATES

in this Circuit, conflicts with the Supreme Court rulings,

even though many other cases in this Circuit follow those

rulings.

Finally, on the implementation issue, it is an easy sleight

of hand to say that Berkovitz, Kennewick, ARA Leisure

Services, and other similar cases were all decided on the

design-implementation analysis. For no particular legal

reason, it turned out that in these cases the last step in the

process when the damage or injury occurred was the

implementation stage and that mandatory requirements, like

contract requirements, covered the last stage, but not the

policy/design stage. In other words, it was a coincidence in

most of these cases that spawned and has perpetuated a false

understanding of the law grounded in the blanket

implementation stage denial of the discretionary function

exception.

Courts should not mistake this coincidence as a basis for

sidestepping the required Supreme Court analysis by using

the design-implementation reasoning. Indeed, if anything is

being swallowed in the FTCA cases, the implementation

exception swallows the DFE because, as the cases show,

most claims arise out of the action that follows a plan. In

other words, a jobsite or a national park is where accidents

happen and injuries occur. For the most part, plans do not

injure people or destroy property; workers do. And workers

work as implementors. This is true in every case cited in this

opinion. So the question is not did the injury occur at the

implementation stage. The question is whether policy

discretion applied at the implementation stage, and that is

what we have in Lam’s case. Now back to Whisnant and the

dissent’s contention that cutting down the tree involved no

policy issues, just a technical issue.

LAM V. UNITED STATES 39

The dissent contends that “we should not ‘conflate policy

considerations with technical considerations.’” This

exception is sometimes called the scientific-professional

exception. But Gaubert’s presumption does conflate policy

considerations with technical considerations when those

considerations involve policy discretion. Cutting down a tree

involves technical questions, but in Lam’s case, the policies

authorize discretion, and therefore, the DFE applies.

Moreover, Whisnant incorrectly states that “matters of

scientific and professional judgment—particularly

judgments concerning safety—are rarely considered to be

susceptible to social, economic, or political policy.”

400 F.3d at 1181. Many of the cases cited in this opinion

involve scientific or professional issues that the DFE

protected. Just to name few: Varig Airlines involved an

engineering question about safety; Delhite involved science

and professional questions about the process of turning

explosive ammonium nitrate into fertilizer; 2 Chadd involved

professional questions about how to deal with a deadly

mountain goat; and Morales involved technical questions

about applying the United States Geological Survey

standards. And as these cases show, just because an act

involves technical or professional questions, does not

automatically cut off the DFE.

Finally, in response to the dissent, we turn to the decision

in Whisnant, which ended with the correct result but for the

wrong reasons. Nothing about the facts of that case required

the court to apply the implementation analysis or the

2

The plaintiffs in Delhite alleged that the government’s multiple

failures caused an explosion that destroyed two cargo ships, killed many

people, and leveled much of the town of Texas City, Texas. 346 U.S.

at 22–23.

40 LAM V. UNITED STATES

technical analysis. The court correctly held that “the

government’s alleged failure to maintain safe and healthy

premises was not a decision susceptible to considerations of

social, economic or political policy.” Id. at 1179. Simply

stated: There was mold in the commissary, and it needed to

come down. There are no policy considerations that justify

leaving mold in a store frequented by customers, suppliers,

and commissary workers. Mold has no aesthetic value,

unlike an interior live oak. There were aesthetic questions

and other policy questions about the tree that fell on Lam’s

tent. The Lake Mendocino policies guided Shull’s work and

gave him discretion.

HURWITZ, Circuit Judge, dissenting:

The Federal Tort Claims Act (“FTCA”) makes the

government liable for the torts of its agents “in the same

manner and to the same extent as a private individual under

like circumstances.” 28 U.S.C. § 2674. But that liability

does not extend to

Any claim based upon an act or omission of

an employee of the Government, exercising

due care, in the execution of a statute or

regulation, whether or not such statute or

regulation be valid, or 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 purpose of this “discretionary

function exception” is to “prevent judicial ‘second-guessing’

LAM V. UNITED STATES 41

of legislative and administrative decisions grounded in

social, economic, and political policy through the medium of

an action in tort.” United States v. S.A. Empresa de Viaco

Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814

(1984).

It is sometimes difficult to determine whether a

particular claim falls within the discretionary function

exception, and as the majority correctly notes, our case law

limning the exception spins something of a tangled web. But

this case does not require us to untangle that web. This is a

straightforward personal injury case, involving a plaintiff

injured by a falling tree while camping on federal property.

That tree was inspected, pursuant to agency policy, by a

government employee to see whether it posed a danger to

campers; he concluded it did not, and the plaintiff alleges

that the inspection was negligently performed. This case

does not call on us to judge the wisdom of any social,

economic, or political policy, but rather simply to perform

the familiar role of determining whether the government

agent exercised reasonable care.

We have already held that governmental immunity does

not apply to precisely such a decision. Kim v. United States,

940 F.3d 484, 487–90 (9th Cir. 2019). That is because

although the “design of a course of governmental action is

shielded by the discretionary function exception . . . the

implementation of that course of action is not.” Whisnant v.

United States, 400 F.3d 1177, 1181 (9th Cir. 2005). Today’s

decision not only conflicts with our precedent, but also

illustrates what Judge Silverman once aptly called the

“danger that the discretionary function exception will

swallow the FTCA.” O’Toole v. United States, 295 F.3d

1029, 1037 (9th Cir. 2002). Because we should not allow

the government to “shortchange” liability for a negligent

42 LAM V. UNITED STATES

undertaking “in the name of policy,” Marlys Bear Med. v.

United States ex rel. Sec’y of Dep’t of Interior, 241 F.3d

1208, 1216–17 (9th Cir. 2001) (cleaned up), I respectfully

dissent.

I

I do not dispute that the relevant Army Corps of

Engineers policies allow government workers to exercise

professional judgment in deciding which trees to remove at

Lake Mendocino. But I depart from the majority’s

conclusion that this is a “policy judgment” covered by the

discretionary function exception.

In arriving at a contrary conclusion, the majority gives

short shrift to Kim, which involved a virtually identical

claim. In Kim, we held that a government worker’s decision

not to remove a tree from Yosemite National Park, pursuant

to an agency policy about removal of hazards, did not trigger

the discretionary function exception. 940 F.3d at 489–90.

We acknowledged that determining whether a tree meets

standards for removal surely requires the “careful—perhaps

even difficult—application of specialized knowledge.” Id.

at 489. We also recognized that in applying that specialized

knowledge technicians could exercise some discretion and

well hold opposing views, for “technicians, like anyone else,

can disagree about their craft.” Id.

But, we nonetheless stressed in Kim that park workers

inspecting trees under the agency’s instructions were not

making “policy choices.” Id. Recognizing the central

purpose of the discretionary function exception, we observed

that immunity was not necessary to “prevent judicial second-

guessing” of a policy scheme. Id. at 487 (quoting Berkovitz

v. United States, 486 U.S. 531, 536–37 (1988)). Kim should

control our analysis today. Even assuming the decision not

LAM V. UNITED STATES 43

to remove the tree was based on the considered technical

judgment of the inspector, we should not “conflate policy

considerations with technical considerations.” Id. at 489.

Deciding whether a tree is diseased and poses a danger to

campers, like deciding when mold should be removed,

“involves professional and scientific judgment, not decisions

of social, economic, or political policy.” Whisnant, 400 F.3d

at 1183; see Oberson v. United States Dep’t of Agric., Forest

Serv., 514 F.3d 989, 997 (9th Cir. 2008) (finding exception

inapplicable where park rangers failed to place a warning

sign along a hazardous snowmobile trail).

II

The majority distinguishes Kim because the tree

maintenance policies in that case were more specific than the

Corps’ policy here. But this is a distinction without a

difference. While designing Lake Mendocino’s tree safety

scheme, the Corps might well have balanced the sort of

competing objectives—limited budgets, aesthetics, and the

busy camping season among them—that concern the

majority. Indeed, for present purposes, we can assume that

the Corps was not required to have any policy about tree

maintenance, leaving campers entirely at the risk of natural

hazards. See Kim, 940 F.3d at 488 (declining to answer this

“hypothetical” question). But, once the government

undertook the inspection of trees near the campground, we

focus on implementation, “the nature of the actions in

conducting” the project. Myers v. United States, 652 F.3d

1021, 1031–32 (9th Cir. 2011); see also O’Toole, 295 F.3d

at 1036–37 (“[T]he BIA was under no obligation to acquire

Bowler Ranch, but once it did, it also acquired the obligation

to keep its irrigation from causing harm to others to the same

extent that a private landowner must.”).

44 LAM V. UNITED STATES

Having voluntarily undertaken the task of inspecting

trees on its property to keep campers on its property safe, the

government should not today escape liability for its alleged

negligence by casting a camper’s injury as the result of a

policy decision. The injury was “not the result of a policy

choice,” but “simply a failure to effectuate policy choices

already made.” Nanouk v. United States, 974 F.3d 941, 950

(9th Cir. 2020) (rejecting application of the discretionary

function exception when the government undertook to clean

up hazardous chemicals, then failed to discover a “hot spot”)

(quoting Camozzi v. Roland/Miller & Hope Consulting Grp.,

866 F.2d 287, 290 (9th Cir. 1989)); see also Marlys Bear

Med., 241 F.3d at 1216–17 (holding that “safety measures,

once undertaken, cannot be shortchanged in the name of

policy”); see also Restatement (Third) of Torts § 42 (Am.

Law Inst. 2013) (“An actor who undertakes to render

services to another and who knows or should know that the

services will reduce the risk of physical harm to the other has

a duty of reasonable care to the other in conducting the

undertaking . . . .”); Restatement (Second) of Torts § 324A

(Am. Law Inst. 1965) (same).

The majority’s invocation of Chadd v. United States,

794 F.3d 1104 (9th Cir. 2015), also fails. In Chadd, National

Park Service officials knew that wild goats were dangerous

and decided to post signs and deter the goats with paintballs,

rather than remove or kill them. Id. at 1107, 1113–14. We

termed that choice of options a policy decision. Id. But, we

did not thereby suggest that the discretionary function

exception would apply if government agents had carelessly

placed the signs where no one could see them. That is the

kind of alleged negligence the majority immunizes from suit

today.

LAM V. UNITED STATES 45

III

With its narrow focus on whether the policy at issue was

sufficiently prescriptive, the majority today incorrectly

broadens the government’s immunity from tort suit. I

respectfully dissent.