# Petition for Writ of Certiorari — Davis v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1008

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1548%3A1. Public record. Not legal advice.