Petition for Writ of Certiorari — Davis v. United States

No. \) 08-909 JAN 27 2010

IntueE OFFICE OF THE CLERK

Supreme Court of the United States

KEVIN DAVIS, Surviving Spouse of Decedent, Donise

Davis, Individually and as Court-Appointed Administrator of

the Succession of Donise Davis and the Succession of Donise

Davis; LESLIE MICHELLE LASENBURG, Widow of Kevin

Davis and aiso as court-appointed Administratrix of the

Succession of Kevin Michael Davis; MARY BETH BROWN,

surviving mother of Donise Davis, and as court-appointed

Administratrix of the Succession of Donise Davis;

KEITH DAVIS,

Petitioners,

v.

UNITED STATES OF AMERICA,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourRT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORAR*

GLENN C. MCGOVERN

2637 Edenborn Ave., Suite 101

Metairie, LA 70002

Mailing address: PO. Box 516

Metairie, LA 70004-0516

(504) 456-3610

e-mail: gemcg@mac.com

Attorney for Petitioners

227657 ce

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

I.

ITI.

2

QUESTIONS PRESENTED FOR REVIEW

Does the discretionary function exception to the

Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.

waiver of sovereign immunity provide immunity

to negligent acts of a government agent acting

outside the scope of mandatory directives?

Does the discretionary function exception to the

‘ederal Tort Claims Act, 28 U.S.C. § 2671, et seq.

waiver of sovereign immunity provide immunity

to the negligent acts of a government agent at the

operational level with no authority to determine

policy, priorities, or the allocation of resources?

Are the immunity provisions in the Stafford Act,

42 U.S.C. § 5121, et seq., to be interpreted in the

Same manner as this Court has interpreted the

Federal Tort Claims Act, 28 U.S.C. § 2671, et seq.?

il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ...

TABLE OF COR eee ar oer ses oes voce see

TABLE OF APPENDICES ........-+..-2...-.-

TABLE OF CITED AUTHORITIES ..........

OPINIONS BAe wipe eee eases cs ccescns

STATEMENT OF JURISDICTION ..........

FEDERAL STATUTES INVOLVED .........

STATEMENT OF THE CASE ...............

I. Inmtreceee oe ce exec cess.

I. Background 06 Gi ooo oce es eeseses.s-.

A. Supreme Court Federal Tort Claims

Act Jurisprudence ................

B. The SUgi te pace scesacscsss-.-

Page

Contents

II. The United States Is Not Immune For

The Negligent Actions Of Its Agents Who

Failed To Perform Their Duties According

Te OE 6.60 4X 5050045 0 eee

Iit. This Case Presents An Opportunity For

This Court To Expand Upon Its Federal

Tort Claims Act Jurisprudence .........

ef Ft 2 errr Sree et ere ere

Page

13

20

iv

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States

Court Of Appeals For The Fifth Circuit Filed

Se I en cs eke een suneusens s la

Appendix B — Order Of The United States

District Court For The Eastern District Of

Louisiana Dated November 4, 2008 ......... 8a

Vv

TABLE OF CITED AUTHORITIES

Page

Cases

Berkovitz by Berkovitz v. United States,

Ree ee Ge, FOOETII) onc cn cvccees 10, 11, 14, 17

Boyle v. United Tech. Corp.,

Se ee COD cv nw Web deebeNeceveses 13

Complete Auto Transit, Inc. v. Reis,

fe yo a ee 8

Dalehite v. United States,

ee I oo. skew ncucesnpestons 12, 14

Davis v. United States,

2009 WL 3489854 (5th Cir. 2009) ............ 8, 15

Dep't of the Army v. Blue Fox, Inc.,

119 S. Ct. G97 (1999) .......-..-..--- eee. 8

Diversified Carting, Inc. v. City of New York,

423 F-Supp.2d 90 (S.D. N.Y. 2005) .......... 14

Freeman v. United States,

556 F.3d 326 (Sth Cir. 2009) ............006- 16

Indian Towing Company v. United States,

5 2. Ge 24,” ) ne 11, 13, 14, 18

Nevada v. Hall,

ee ee go x Sk ese ed veeecacens 8

vi

Cited Authorities

Page

Rayonier, Inc. v. United States,

(of Se BM Co. | Ge 9, 11, 13, 14, 18

St. Tammany Parish, Ex. Rel. Davis

v. Federal Emergence Management Agency,

556 F.3d 307 (5th Cir. 2009) ................ 15

United States v. Gaubert,

Oe We eee, ET CUED «nv ncccccceasovewevns passim

United States v. Muniz,

eR ks eee are 8

United States v. Varig Airlines,

RR Ee | 10, 14

Federal Statutes and Regulations

EE, Se ik ok ooh ea ob acne vonen des l

re es a ak bees ve eka bak keke 1

8 OR | a ree 1

Me MP se © BONO) cs cceccecccesncdensess 9

Ne ee uw eee en 6 RRR OR OO 2,9

ue RE re er rt 2,9

vil

Cited Authorities

Page

ey Ris eens Oe OU, 55 od nxn esas seas i, 1, 14

BR Eo 2 eer err re rr er re 14

gS eae rr Pere er rer rt 1

Federal Aviation Regulation FAR 91.23 ....... 3

Federal Rules of Civil Procedure Rule 56(b) ... 4

Federal Tort Claims Act,

28 U.S.C. Section 2671 ef seqg............... i, 3

PUCerar TOTt CIMIR AGE oc ccc cesccecvssces 2

ER rc case eG eo ane ees dene ae ees 14

Other Authorities

Department of Homeland Security’s National

PED va vcancuas cubeveneeeneeece. 16

Navy Search and Rescue Manual,

PERE GE a 6ks veo k sae Rake ea eter 5, 6, 15

Navy Search and Rescue Manual ............. 16

OPNAVINST 3710.7T Section 8.3 et seg. ...... 3

VIL

Cited Authorities

Page

State Statutes and Rules

Siig Gaets GI I NE) osc 0 bk KS os cbseuasners 3

Pee Ae Fee ee ee 3

Pee ae ee) rere 3

Bik, Aste. GE RU, PNUD occ sc oscneeccrcsdeves 3

Dees GA CPO hxc i cece esncesteenses 3

Re ee 3

Rati, Ce, CE GPG, BRE TGE vei de ee cssccccacceess 3

Ea SIV A OPE Be ov cece siccrnvesccces 3

Di ee en Sb vo ace cese cease wes 3

]

OPINIONS BELOW

The opinion and judgment of the Fifth Circuit Court

of Appeals is reported at 2009 WL 3489854 attached as

Appendix A. The District Court’s judgment and order

is attached as Appendix B.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit upholding the District Court

Judgment was entered on October 29, 2009. This Court

has jurisdiction pursuant to 28 U.S.C. § 1254 (1). The

basis for federal jurisdiction in the United States Court

for the Eastern District of Louisiana was federal

question jurisdiction. 28 U.S.C. § 1331. Jurisdiction in

the Fifth Circuit Court of Appeals was based upon its

appellate jurisdiction pursuant to 28 U.S.C. § 1291.

FEDERAL STATUTES INVOLVED

The following provisions of Federal law are at issue:

I. 42 U.S.C. § 5158

The Federal Government shall not be liable for any

claim based upon the exercise or performance of

or the failure to exercise or perform a

discretionary function or duty on the part of a

Federal agency or an employee of the Federal

government in carrying out the provisions of this

chapter [42 U.S.C. § 5121, et seq].

II. 28 U.S.C. § 2680

28 U.S.C. § 2680 provides an exception to the

waiver of immunity under the Federal Tort Claims

Act as follows:

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 has been abused.

28 U.S.C. § 2680(a).

STATEMENT OF THE CASE

I. Introduction

Petitioners represent the estates of the named

Plaintiffs in this matter. Respondent is the United States

Government. This matter arose in the wake of the

Hurricane Katrina tragedy. Donise Davis (“Decedent’’) was

critically injured when she slipped out of a rescue strop

which was being used to lift her into a United States Navy

helicopter and fell between approximately forty to one

hundred feet to the concrete roadway in view of her

husband. The Navy helicopter departed, leaving Decedent

lying on the concrete for approximately one hour before a

United States Coast Guard helicopter arrived with the

proper personnel and rescue equipment and transported

3

her to a hospital. Decedent was alive at the time the

Coast Guard helicopter arrived, but expired shortly

thereafter as a result of the injuries she received in the

fall.

Decedent’s husband filed a complaint under the

Federal Tort Claims Act, 28 U.S.C. Section 2671 et seq

(“FTCA”), and under the Louisiana Civil Code Articles

for wrongful death, witnessing wrongful death of a

spouse, and survivorship pursuant to La. Civ. Cope art.

2315.1 (survival action); La. Civ. Copr art. 2315.2

(wrongful death action); La. Civ. Cope art. 2315.6 (liability

for damages caused by injury to another); and La. Crv.

Cope art. 2316 (negligence, imprudence, or want of skill).

The complaint alleged further damages pursuant to

La. Civ. Cope art. 2315 (liability for acts causing

damages); La. Civ. Cope art. 2317 (acts of others and of

things in our custody); La. Crv. Cope art. 2317.1 (damage

caused by defect in things); La. Civ. Cope art. 2320 (acts

of servants); and La. Civ. Cope art. 2324 (liability as

solidary or joint and divisible obligation). The Complaint

also specially pleads battery for injuring Decedent’s

body resulting in her death and allege that

Respondent’s crew violated Federal Aviation Regulation

FAR 91.23, which prohibits careless and reckless

operation of any civil or military aircraft causing injury

to another. The Complaint further alleges that the

Department of the Navy helicopter crew and

Respondent violated its own standards as described in

OPNAVINST 3710.7T Section 8.8, et seg. regarding

performance and qualifications for its crew.

Shortly after filing the Complaint, Decedent’s

husband passed away and her interests are now

4

represented in this action by his estate through his

subsequent wife. Respondent filed a motion for

summary judgment pursuant to Rule 56(b) of the

Federal Rules of Civil Procedure alleging that there was

no genuine issue of material fact as to the issue of

immunity and it was entitled to judgment as a matter of

law. The District Court granted Respondent’s motion

and the Fifth Circuit Court of Appeals affirmed at 2009

WL 3489854.

Il. Statement of Facts

On or about September 2, 2005, Decedent and her

husband escaped Hurricane Katrina’s floodwaters to a

raised expressway. Respondent’s helicopters arrived and

successfully airlifted three survivors by cable from the

expressway. After picking up others, one of

Respondent’s operators lowered the cable, positioned

the boom, and sent the cable and harness to Decedent.

Respondent’s rescue swimmer attached a “rescue

strop” to Decedent and the crew began to raise her

toward the helicopter. Decedent began to slip and was

lowered back down to the expressway. The rescue

swimmer adjusted the rescue strop and again the crew

lifted Decedent to the helicopter door. Once up to the

door, Respondent’s crew were unable to pull Decedent

into the door and Decedent fell approximately one

hundred feet to the concrete below. Respondent’s

helicopter departed from this scene of horror and

abandoned Decedent on the expressway without

attempting to provide her with medical care. She

remained on the hard concrete ground, breathing

painfully and bleeding internally, for over an hour before

a Coast Guard helicopter arrived with the necessary

—

Oo

equipment and evacuated her from the site. Decedent’s

husband sat and watched in disbelief as Decedent lay

dying on the concrete. Decedent passed away shortly

after arrival at the hospital.

Respondent’s crew was not equipped to rescue

Decedent. Respondent’s crew was equipped only with a

rescue strop which it was specifically directed not to use.’

Respondent’s crew did not have any communications

equipment that its rescue swimmer could use to

communicate with the crew in cases where problems

arose during the lift. The “standard rescue strop” which

Respondent’s crew used was in attempting to rescue

Decedent was not permitted by regulation for such

rescue.” The regulations clearly state that the crew

should have used the “quick strop,” a device which

contains a crotch section that the outmoded “standard

rescue strop” does not contain.* To complicate matters,

the rescue strop the crew had was not modified per

1. Navy Search and Rescue Manual, NWP 3-50.1. The Navy

Search and Rescue Manual contains detailed instructions

regarding the minutiae of conducting search and rescue

operations. A “strop” is a device which is used to hoist people

during helicopter operations. There are various designs of

strops which are used based on the type of mission and the

personne! to operate and be hoisted.

2. NWP 3.50.1. The “standard rescue strop” is to be used

only with military personnel trained in its use. The “quick strop”

is the required device to be used for direct deployment or civilian

rescue and is fitted with an additional piece which, according to

irrefutable testimony, would have ensured that Decedent would

not have fallen to her death.

3. NWP 3-50.1.

6

regulations to include an additional loop to provide the

crew with a necessary means for which to pull the subject

into the helicopter.* Respondent’s crew was not provided

a properly modified rescue strop. Without the strap, the

crew was unable to pull Decedent into the helicopter. Such

modification would have prevented Decedent’s injury and

death.

A multitude of factors demonstrate that Respondent’s

crew should not have attempted to rescue Decedent.

Respondent’s crew was not trained to undertake a rescue

of a civilian such as Decedent. Respondent’s crew was not

properly equipped and failed to properly attach rescue

apparatus to Decedent. The rescue strop is designed so

that if it were properly attached, the person lifted would

not be able to lift her arms high enough to fall out of the

strop. Decedent was of an inordinately large size and

exceeded both the capabilities of the rescue strop and the

weight restrictions for making a safe lift.° Matters were

further complicated by the fact that the required

communication system between Respondent’s helicopter

and its rescue swimmer were not present.® Respondent’s

crew did not appropriately evaluate the situations

presented by Decedent’s stature and their capabilities and

should not have undertaken this rescue attempt.

4. NWP 3-50.1.

5. NWP 3-50.1. Respondents did not provide information

regarding weight restrictions for the operation. However, the

Naval Aviation Mishap Safety Investigation Report indicated

that Decedent’s weight exceeded safety limits.

6. NWP 3-50.1. There was significant testimony that the

failure to have the required communications equipment

precluded Decedent’s safe rescue.

7

Respondent’s crew responded to their duty to assist

our citizens with heroie zeal and the most noble of

intentions. However, Respondent’s crew failed to abide

by the rules and regulations which were designed to

guide their conduct. The crew themselves testified that

the attempted rescue of Decedent was undertaken in

direct contravention of the rules and regulations that

they had been issued, upon which they had been trained,

and were required to follow. Respondent’s crew had no

discretion to undertake this rescue and was required,

according to its directives, to refuse this mission. This

crew, while most certainly acting with the best of

intentions, failed to adhere to the precepts of their

training and the regulations to which they were bound.

These violations of mandatory naval regulations caused

Decedent’s death.

REASONS FOR GRANTING THE PETITION

May it please this Court:

Petitioners seek to place as much of the tragic

circumstances of this matter as possible aside and focus

on the fundamental legal issues which arise in this

matter and merit this Court’s immediate attention.

The United States District Court for the Eastern

District of Louisiana and the Fifth Circuit Court of

Appeals departed significantly from this Court’s

pronouncements on the discretionary function exception

to the FTCA. See United States v. Gaubert, 111 S. Ct.

1267, 1273-74 (1991). These decisions effectively create

a new exception to the FTCA. The lower court has

8

effectively stated that there is absolute immunity to all

acting under Federal control in case of an emergency.’

I. Background in Law

A. Supreme Court Federal Tort Claims Act

Jurisprudence

The concept of “sovereign immunity” precludes a

lawsuit against a governmental body. Dep't of the Army

v. Blue Fox, Inc., 1198S. Ct. 697, 690 (1999). This concept

dates back to the English legal fiction that “the King

can do no wrong” and therefore may not be a defendant

in his own courts. Nevada v. Hall, 99 S. Ct. 410, 414-15

(1979). Congress and this Court have, throughout the -

years, moved toward limiting the applicability of the

doctrine of sovereign immunity. See Complete Auto

Transit, Inc. v. Reis, 101 S. Ct. 1836, 1851 (1986) (Burger

& Rehnquist, JJ, dissenting). Congress enacted the

FTCA in 1946 to allow a plaintiff to pursue a tort claim

against the Federal Government in the same way that it

would against a private party. See United States v.

Muniz, 83 S. Ct. 1850, 1852-53 (1963). The statute

specifically waives sovereign immunity for personal

injury claims arising out of:

the negligent or wrongful act or omission of any

employee of the Government while acting within

7. The Fifth Circuit analysis very specifically took into

consideration the emergency situation which arose as a result

of Hurricane Katrina and determined that the discretionary

function was applicable down to the minutiae of the operational

level. Davis v. United States, 2009 WL 3489854 at *3 (5th Cir.

2009).

9

the scope of his [or her] office or employment,

under circumstances where the United States,

if a private person, would be liable to the

claimant in accordance with the law of the place

where the act or omission occurred.

28 U.S.C. § 1346(b)(1) Congress enacted this waiver of

sovereign immunity with full appreciation of the burdens

that it may cause the Treasury. Rayonier, Inc. v. United

States, 77 S. Ct. 374, 377 (1957). It determined that it

was preferable for the public as a whole to incur the

costs of the Government’s negligent actions than it would

be for an individual to bear the potentially ruinous

burden alone. /d.

Congress has created several specifie exceptions to

this waiver of sovereign immunity. See 28 U.S.C. § 2680.

The pertinent exception for purposes of this Petition,

and the one relied upon by Respondents below, is

contained in 28 U.S.C. § 2680(a):

The provisions of this chapter and section 1346

(b) of this title shall not apply to—

(a) 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

10

an employee of the government, whether

or not the discretion involved has been

abused.

Id. This exception protects the United States from

liability arising out of a tort claim based upon the

exercise or performance, or failure to exercise or

perform a discretionary function or duty on the part of

a federal agency or an employee of the government.

Berkovitz by Berkovitz v. United States, 108 S. Ct. 1954,

1958 (1988). The exception was designed to shield

legislative and executive actions from judicial intrusion

upon “legislative and administrative decisions grounded

in social, economic, and political policy through the

medium of an action in tort.” Jd. at 1959 quoting United

States v. Varig Airlines, 104 S. Ct. 2755, 2764-65 (1984).

The discretionary function exception is only

applicable to acts which are discretionary in nature and

involve an element of judgment or choice. Gaubert, 111

S. Ct. at 1273. The central focus of the inquiry as to the

discretionary function’s applicability is on the conduct

involved and not the status of the actor. Jd. This

exception only protects conduct which is “based on

considerations of public policy.” Jd. at 1274. The Court

has given clear indication that the discretionary act must

have an effect not only on the specific instance in

question, but also on a broader policy level. See Varig

Airlines, 104 S. Ct. at 2767-68. These decisions receiving

immunity may influence policy, priorities, or the

allocation of resources, but they must all, at some level,

involve discretion which involves regulatory or economic

considerations.

11

The discretionary function exception is not

applicable if a “federal statute, regulation, or policy

specifically prescribes a course of action for an employee

to follow,” because “the employee has no rightful option

but to adhere to the directive.” Berkovitz, 108 S. Ct. at

1958-59. This Court has further noted that, even

assuming the challenged conduct involves an element

of judgment, it is necessary to determine whether or

not that judgment involved the type of decision that the

discretionary function was designed to protect. Gawbert,

111 S. Ct. at 1273. If a regulation mandates particular

conduct, and the employee follows that course of conduct,

the government will be protected because the action will

be deemed in furtherance of the policies which led to

the promulgation of the regulation. /d. at 1274. If the

employee violates the mandatory regulation, there will

be no shelter from liability because there is no room for

choice and the action will be contrary to policy. Jd.

Although the decision to perform an act may be

discretionary, once that decision has been made, the act

must be undertaken with due care. Indian Towing

Company v. United States, 76S. Ct. 122, 126-27 (1955).

It is at this point that the Government owes the

individual the same duty of due care that a party not

acting under the color of law would owe the individual

under the same circumstances. /d. at 127. Such action,

or lack thereof, does not involve “a permissible exercise

of policy judgment.” /d. If the Government undertakes

an activity, it owes a duty of care to ensure that the

activity is conducted with the same level of care that a

private individual or entity would be required to assume.

Rayonier, 77 S. Ct. at 376.

12

The difficulty which arises through this test is

determining at exactly what point discretion ceases to be

“grounded in social, economic, and political policy.” Justice

Sealia addressed this issue in his concurring opinion in

Gaubert. 111 S. Ct. at 1280-82 (Scalia J., concurring). He

noted that, while the status of the individual exercising

discretion is not the sole determining factor as to whether

or not the exception is applicable, it is

often relevant to the discretionary function inquiry,

since the answer to that inquiry turns on both the

subject matter and the office of the decisionmaker.

In my view a choice is shielded from liability by

the discretionary function exception if the choice

is, under the particular circumstances, one that

ought to be informed by considerations of social,

economic, or political policy and is made by an

officer whose official responsibilities include

assessment of those considerations.

Id. at 1280 (emphasis in original).* The identity of the party

involved in making the determination provides guidance

as to whether or not “the subject matter of the decision is

one that ought to be informed by policy considerations.”

8. Justice Scalia’s illustration of this point in the context of

the decision in Dalehite v. United States, 73 S. Ct. 956, 972-73 (1953)

clearly demonstrates the quandary that the discretionary function

exception presents. Gauwbert, 111 S. Ct. at 1280 (Scalia J.,

concurring). The Dalehite Court found that the discretionary

function exception was applicable to government decisions relating

to the procurement, quantity, and location of an explosive fertilizer.

73 S. Ct. at 972-73. Justice Scalia argued that the negligence of a

dock foreman, despite the fact that such foreman took into

(Cont'd)

13

Id. It therefore should be presumed that the higher one is

on the policy making scale, the more strongly the

presumption that discretionary function immunity as

intended by Congress is applicable. /d.

The FTCA was not created in a vacuum and was the

result of three decades of Congressional deliberations

through which Congress carefully crafted numerous

specific limitations and safeguards. /ndian Towing, 76

S. Ct. at 126. This Court has carefully noted that Congress

determined the broad and sweeping manner in which

Congress waived the Government’s immunity from tort

liability. Rayonier, 77 S. Ct. at 377. This Court has also

indicated that exceptions to the waiver of immunity are to

be narrowly construed to conform to Congressional intent.

Id. This Court has, in each instance in which it has

considered these issues, carefully demonstrated the

applicability of the discretionary function exception to the

circumstances before it.°

(Cont’d)

consideration cost and safety, which are relevant policy

considerations, would not be immune because these were not his

decisions to make, whereas a similar decision made by the

Secretary of Agriculture would receive immunity as these were

decisions within his purview of his duties. Gawbert, 111 S. Ct. at

1280 (Sealia J., concurring). Justice Sealia’s dockworker / Secretary

of Agriculture paradigm is precisely analogous to the present

instance and clearly demonstrates the necessity for this Court to

provide guidance as to this issue.

9. See Gaubert, 1115S. Ct. at 1273 (holding that the day to day

actions of regulators supervising a savings and loan association

fall within the discretionary function exception); Boyle v. United

Tech. Corp., 108 S. Ct. 2510, 2518 (1988) (holding that the selection

(Cont'd)

14

B. The Stafford Act

The Stafford Act, also known as the Disaster Relief

Act of 1974, was enacted to provide federal assistance

to the States in time of disaster. Diversified Carting,

Inc. v. City of New York, 423 F. Supp. 2d at 90 (S.D. N-Y.

2005) citing 42 U.S.C. § 5121, et seg. To the extent that

the Stafford Act allows for a private right of action

against the federal government, the United States

retains its sovereign immunity with respect to any

activities that are “based on the exercise or performance

of or the failure to exercise or perform a discretionary

function or duty on the part of a Federal agency or an

employee of the Federal Government in carrying out the

provisions of [the Act].” 42 U.S.C. § 5148. The Fifth

Circuit has applied the same discretionary function

(Cont'd)

of the appropriate design for a piece of military equipment falls

within the discretionary function exception); Berkovitz, 108 S. Ct.

at 1964 (holding that the failure to comply with a specific policy

regarding testing of vaccine lots does not fall within the

discretionary function exception); Varig Airlines, 1048S. Ct. at 2767

(holding that the Federal Aviation Administration’s program of

“spot checking” aircraft to ensure compliance with safety

regulations was not subject to question under the discretionary

function exception); Indian Towing, 76 S. Ct. at 126-27 (finding

that the failure to maintain a lighthouse did not fall within the

discretionary function exception); Dalehite, 73 S. Ct. at 972-73

(holding that the Government’s decision as to where, and in what

quantities, to store fertilizer was not subject to judicial second

guessing). In Rayonier, this Court, without addressing the issue

of the discretionary function exception, determined that the

United States could be liable for negligence arising out of allowing

a fire to be started on government property and failing to act with

due care in putting the fires out. 77 S. Ct. at 377.

15

exception analysis for claims brought under the Stafford

Act as it has for claims under the FTCA. St. Tammany

Parish, Ex. Rel. Davis v. Federal Emergence Management

Agency, 556 F:3d 307, 319 (5th Cir. 2009). Petitioner does

not contest the applicability of the analysis in this matter

and contests only its application to the present matter and

those similarly situated.

II. The United States is not Immune for the Negligent

Actions of its Agents who Failed to Perform their

Duties According to Policy

The Fifth Circuit, while conceding that Petitioners

identified mandatory language in the Navy Search and

Rescue Manual, found that a statement in the preface

regarding deviations solely determined that these

directives were mandatory. Davis, 2009 WL 3489854 at

*2. The preface states that “rescue environment may

require deviation from procedures contained herein.

Deviation from specified rescue procedures is

authorized in emergency Situations where safety

justifies such situation.” /d. The next page of the

document, and still within the preface, provides guidance

on how the Manual is required to be interpreted and

clearly denotes what is and what is not mandatory.'°

There was extensive testimony from the crew as well as

expert testimony which interpreted these regulations

to be mandatory. The Fifth Circuit followed the same

path as the trial court and focused on the emergency

and not on the directive and not whether or not the

conduct involved considerations through which the

exception was designed to protect. See Gaubert, 111

S. Ct. at 1273.

10. NWP 3-50.1.

16

The Fifth Circuit, shortly before hearing the present

case, addressed the discretionary function exception as

it applies to the Stafford Act in Freeman v. United

States, 556 F.3d 326 (5th Cir. 2009), cert. denied, 130

S. Ct. 154 (2009). F'reeman involved the negligent failure

to perform duties prescribed by the Department of

Homeland Security’s National Response Plan. /d. at 336-

37. The court found that the policy directives that the

Federal Emergency Relief Agency promulgated and

assigned to its operatives were not specific directives

and those who were charged with their implementation

were protected by the discretionary function exception.

Id. at 338.

Petitioners do not seek to question the validity of

the Freeman decision, but do dispute the applicability

of the holding to the present instance. Petitioners

presented the Fifth Circuit with not only mandatory

directives, but an interpretation of these directives from

those who were required to follow them.'' Respondent’s

crew acted negligently when it attempted to rescue

Decedent and the failure to follow protocol] resulted in

her death. In the present case, and in contrast to the

circumstances involved in F’'reeman, there is no

argument that any form of policy was being determined

11. There was extensive deposition testimony regarding the

mandatory nature of the directives contained in the Search and

Rescue Manual. The testimony elicited from Respondent's crew

indicated that these directives were to be followed to the letter.

Updates to the Search and Rescue Manual were frequently

circulated and given immediate effect. Each of the provisions of

the Naval Search and Rescue Manual which Petitioner presented

to the Eastern District of Louisiana and the Fifth Circuit was in

effect at the time of the ill fated rescue attempt

17

during the failed rescue attempt. The decision to rescue

Donise Davis was not based upon the exercise of any

“social, economic, and political policy” decision. The

decision to attempt this rescue using equipment that was

prohibited for use in such situation was not based upon

the exercise of any “social, economic, and political policy

decision.” There can be no question that the manner of

carrying out a rescue was not based upon any “social,

economic, and political policy” decision within any meaning

ascribed to it by this Court. Gawbert, 111 S. Ct. at 1273.

The Eastern District of Louisiana and the Fifth Circuit

appeared to focus their attention on the “emergency”

surrounding the attempted rescue as opposed to whether

or not there was negligence in conducting the rescue or

the mandatory nature of the crew’s directives. See Davis,

2009 WL 3489854 at *2.'* There is nothing in the Stafford

Act which supports a different treatment to its retention

of immunity under the discretionary function exception.

See 42 U.S.C. § 5148. There is nothing in the Stafford Act

discretionary function provision which suggests that a

court should grant any form of additional deference when

judging actions carried out under Stafford Act authority.

See id. A court’s determination regarding the applicability

of the discretionary function exception should follow the

Berkovitz discretionary function test in the context of the

policy implications of its availability to the actor in question

and the discretion and forgo the “surrounding

circumstances” treatment given by the lower courts in this

matter. 108 S. Ct. at. 1958-59.

12. The District Court transcripts were replete with

mention of the catastrophic circumstances surrounding

Hurricane Katrina and the court’s oral ruling demonstrated

that this was paramount in its consideration of the issues.

18

The Fifth Circuit’s holding returns FTCA

jurisprudence to the point where it existed prior to Jndian

Towing and Rayonier. A finding of immunity in this instance

indicates that there is a distinction between the functions

of the government and that of private parties such that

there cannot be immunity in the present case expressly

overrules those holdings. In the present instance, the

burden of the Government’s negligent actions falls squarely

on the shoulders of Decedent’s family. This is clearly not

what Congress intended when it made its determination

to waive sovereign immunity. Rayonier, 77 S. Ct. at 377.

This clearly does not comport with this Court’s

interpretation of the FTCA and the discretionary function

exception.

IIt. This Case Presents an Opportunity for this Court

to Expand Upon Its Federal Tort Claims Act

Jurisprudence

It has been nearly two decades since this Court last

addressed the issue of discretionary function immunity in

its Gaubert opinion. The Government’s presence in the

daily lives of our citizens and guests has expanded and is

likely to continue to grow in the future. This continuing

expansion necessitates clarification regarding the limits

of the Government’s authority and to ensure that the

FTCA operates as Congress intended.

The matter before this Court, while it involves several

tragic circumstances, is not complex. Decedent was

stranded upon a bridge. Respondent’s crew attempted to

rescue Decedent. Respondent’s crew operated under a

clear set of instructions and procedures that it had no

discretion to stray from. Respondent’s crew should not

19

have undertaken this operation. Respondent’s crew

should not have attempted to rescue Decedent without

observing the regulations and procedures the Navy

established for such rescue. Respondent’s crew acted

negligently and outside of the scope of their training

and procedures. Such dereliction of procedure caused

Decedent’s Death.

It is time this Court answer the questions that the

Gaubert decision left open. The straightforward facts

underlying this case provide the Court with the

opportunity to examine the discretionary function

exception as it applies to the lowest operational level.

While conducting a search and rescue operation is far

more complex than operating an automobile, it is, much

like the operation of an automobile, the subject of

training, rules, and regulations. See Gaubert, 111 S. Ct.

at 1280 (Scalia J., concurring). This case presents the

Court with a clear set of facts for which to determine to

what degree the status of an actor exercising

“discretion” and the actor’s proximity from an executive

position making a determination affecting “social,

economic, and political policy” affects an inquiry into the

applicability of the discretionary function exception. This

Court can establish a framework that can guide the

courts and provide predictability for those in the

Legislative and Executive branches of our Government.

20

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

GLENN C. McGovERN

2637 Edenborn Ave., Suite 101

Metairie, LA 70002

Mailing address: PO. Box 516

Metairie, LA 70004-0516

(504) 456-3610

e-mail: gemeg@mac.com

Attorney for Petitioners

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED OCTOBER 29, 2009

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31119

KEVIN DAVIS, Surviving Spouse of Decedent,

Donise Davis, Individually and as Court-Appointed

Administrator of the Succession of Donise Davis and the

Succession of Donise Davis; LESLIE MICHELLE

LASENBURG, Widow of Kevin Davis and also as court-

appointed Administratrix of the Succession of Kevin

Michael Davis; MARY BETH BROWN, surviving

mother of Donise Davis, and as court-appointed

Administratrix of the Succession of Donise Davis;

KEITH DAVIS

Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA,

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:07-ev-03040

Before BARKSDALE, SOUTHWICK, and HAYNES,

Circuit Judges.

2a

Appendix A

PER CURIAM:*

The family of a person tragically killed during a

Hurricane Katrina rescue operation brought suit

against the United States. The district court dismissed,

finding no subject matter jurisdiction because of

statutory limits on liability in such situations. We

AFFIRM.

I. FACTS AND PROCEDURAL BACKGROUND

When Hurricane Katrina struck the coasts of

Louisiana and Mississippi on August 29, 2005, the

President declared that a major disaster existed. He

authorized federal assistance in the recovery. Under

that authorization, the U.S. Navy performed search and

rescue missions for stranded survivors.

On September 2, 2005, Kevin Davis and Donise

Davis were among those who escaped the floodwaters

by climbing onto the elevated Claiborne Avenue

Expressway in New Orleans. A Navy helicopter arrived

to offer rescue. Its crew consisted of two pilots, a rescue

swimmer, and a hoist operator. The helicopter hovered

at forty feet above the expressway. The rescue swimmer

— which was his duty description, but the rescue was

being attempted on the roadway above the water — was

lowered.

* Pursuant to 5th Cir. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4.

3a

Appendix A

After descending, the rescuer placed a rescue strop

around Ms. Davis. During the lift, the hoist operator

noticed that Ms. Davis’s arms had become free of the

restraining straps, and she was sinking into the rescue

strop. The hoist operator and the rescue swimmer

attempted to lift Ms. Davis into the helicopter cabin.

After a brief struggle, Ms. Davis lifted her arms straight

up and fell approximately forty feet onto the expressway.

Because the crew had no rescue basket, the pilot

radioed a nearby Coast Guard helicopter for assistance.

The Navy helicopter left the scene to make way, and

the Coast Guard helicopter arrived. Rescuers lifted

Davis into their helicopter by rescue basket. She died

as a result of the injuries suffered in her fall during the

Navy’s rescue attempt.

Ms. Davis’s husband filed suit in district court

against the United States under the Federal Tort Claims

Act and the Louisiana Civil Code. He alleged various

torts including wrongful death, negligence, and battery.

The Government asserted as a defense the immunity

provisions of the Robert T. Stafford Disaster Relief and

Emergency Assistance Act and the Federal Tort Claims

Act. See 42 U.S.C. § 5148; 28 U.S.C. § 2680(a).

The Government moved to dismiss the case for lack

of subject matter jurisdiction or, in the alternative, for

summary judgment. After oral argument, the district

court granted the motion. In its findings, the district

court concluded that the Government was immune from

suit.

4a

Appendix A

Il. DISCUSSION

We review de novo a district court’s dismissal for

lack of subject matter jurisdiction. St. Tammany Parish

ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d

307, 315 (5th Cir. 2009).

The party which asserts jurisdiction bears the

burden of proof for a motion to dismiss under Federal

Rule of Civil Procedure 12(b)(1). Ramming v. United

States, 281 F.3d 158, 161 (5th Cir. 2001). A Rule 12(b)(1)

motion should be granted only “if it appears certain that

the plaintiff cannot prove a plausible set of facts that

establish subject-matter jurisdiction.” Castro v. United

States, 560 F.3d 381, 386 (5th Cir. 2009). In ruling on

such a motion, the court may consider any one of the

following: (1) the complaint alone; (2) the complaint plus

undisputed facts evidenced in the record; or (3) the

complaint, undisputed facts, and the court’s resolution

of disputed facts. Lane v. Halliburton, 529 F.3d 548, 557

(5th Cir. 2008).

Due to sovereign immunity, the United States can

only be sued with Congress’s consent. Block v. North

Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273,

287, 103 S. Ct. 1811, 75 L. Ed. 2d 840 (1983). The Federal

Tort Claims Act lowers the sovereign immunity barrier

for certain tort suits for money damages. In re Supreme

Beef Processors, Inc., 468 F.3d 248, 252 (5th Cir. 2006).

The Federal Tort Claims Act, though, contains a

discretionary function exception that makes the United

States not liable for the following:

Sa

Appendix A

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).

Similarly, the Stafford Act precludes government

liability “for any claim based upon the exercise or

performance of or the failure to exercise or perform a

discretionary function or duty on the part of a Federal

agency.” 42 U.S.C. § 5148. This court recently held that

the meaning of “discretionary function or duty” is the

same in the Stafford Act and in the Federal Tort Claims

Act. St. Tammany Parish, 556 F.3d at 319; 42 U.S.C.

§ 5148; 28 U.S.C. § 2680(a).

A two-part test has been established for determining

whether the discretionary function exception applies to

government employee conduct. United States v.

Gaubert, 499 U.S. 315, 111 S. Ct. 1267, 113 L. Ed. 2d

335 (1991). First, the conduct must involve “an element

of judgment or choice.” Jd. at 322 (quoting Berkowitz v.

United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 160

L. Ed. 2d 531 (1988)). Second, the judgment or choice

must be based on considerations of public policy, for that

6a

Appendix A

is the kind of judgment the discretionary function

exception was designed to shield. /d. at 322-23.

We examine the Government’s conduct under the

first Gaubert prong. The Davis family identifies some

mandatory language in the Navy’s Search and Rescue

Manual. Importantly, though, the manual’s preface

provides that a “rescue environment may require

deviation from procedures contained herein. Deviation

from specified rescue procedures is authorized in

emergency situations when safety justifies such a

deviation.” Hurricane Katrina presented the sort of

emergency situation justifying a deviation from the

manual’s provisions. The acts of alleged negligence were

discretionary decisions made by the rescuers.

We turn now to the second Gaubert prong. If a

regulation allows employee discretion, the regulation

creates a “strong presumption” that the discretionary

act authorized by the regulation involves the same policy

considerations that led to the creation of the regulation.

Gaubert, 499 U.S. at 324. Decisions about “when, where,

and how to allocate limited resources within the

exigencies of an emergency” are the types of policy

decisions protected by the discretionary function

exception. Freeman v. United States, 556 F.3d 326, 340

(5th Cir. 2009).

In the emergency left in the wake of Hurricane

Katrina, rescuers had to allocate their time and

resources. The failed rescue of the decedent resulted

from an on-the-spot balance of the rescue need with the

Ta

Appendix A

safety considerations of doing so with the equipment

available. Safety, efficiency, timeliness, and allocations

of resources were all necessary to consider, the very

policy considerations under the Gawbert framework that

made the acts discretionary.

Itt. CONCLUSION

The Davis family did not identify a mandatory duty

breached by the U.S. Navy rescuers. Further, the

rescuers’ decisions were grounded in public policy

considerations. Consequently, the discretionary function

exceptions of the Stafford Act and the Federal Tort

Claims Act apply.

The judgment of the district court is AFFIRMED.

8a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE EASTERN DISTRICT

OF LOUISIANA DATED NOVEMBER 4, 2008

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CASE NO. 07-3040

SECTION N(5)

JUDGE ENGELHARDT

MAG. CHASEZ

KEVIN DAVIS, ET AL

v.

UNITED STATES OF AMERICA

ORDER

Before the Court are the following motions:

1) Defendant, the United States of America’s,

motion to dismiss certain claims for failure to state a

claim (Rec. Doc. 40);

2) The United States’ motion to dismiss for lack of

subject-matter jurisdiction claims for battery, strict

liability, and constitutional torts (Rec. Doc. 41);

9a

Appendix B

3) Plaintiffs, Kevin Davis, et al’s, motion for partial

summary judgment denying any discretionary immunity

for the United States government as per FRCP 56 and

striking its pled immunity defenses in its pleadings

(Rec. Doc. 55);

4) The United States’ motion to dismiss for lack of

subject-matter jurisdiction or alternatively motion for

summary judgment (Rec. Doc. 65); and

5) The United States’ motion for summary

judgment on intervenor’s claim. (Ree. Doc. 93).

Considering the pleadings submitted and oral

arguments of the parties, and for the reasons stated by

the Court at hearing on October 15, 2008:

IT IS ORDERED that the United States’ motion

to dismiss for lack of subject-matter jurisdiction or

alternatively motion for summary judgment (Rec. Doc.

65) is hereby GRANTED and Plaintiffs’ motion for

partial summary judgment denying any discretionary

immunity for the United States government as per

FRCP 56 and striking its pled immunity defenses in its

pleadings is hereby DENIED.

IT IS FURTHER ORDERED that the United

States’ motion to dismiss certain claims for failure to

state a claim (Ree. Doc. 40), motion to dismiss for lack

of subject-matter jurisdiction claims for battery, strict

liability, and constitutional torts (Rec. Doc. 41), and

motion for summary judgment on intervenor’s claim

(Rec. Doe. 93) are hereby DISMISSED AS MOOT.

10a

Appendix B

IT IS FURTHER ORDERED that Plaintiffs’ claims

are DISMISSED for lack of subject-matter jurisdiction

under the immunity provision of the Robert T. Stafford

Disaster Relief and Emergency Assistance Act, 42 U.S.C.

§ 5148.

Final judgment will issue in a separate document

under Fed. R. Civ. P. 58(a).

New Orleans, LA, this 4th day of November, 2008.

s/ Kurt D. Engelhardt

Judge Kurt D. Engelhardt

Eastern District of Louisiana