                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2008

Merando v. USA
Precedential or Non-Precedential: Precedential

Docket No. 06-4657




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                                     PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                      No. 06-4657


 ANTON MERANDO, AS GENERAL ADMINISTRATOR
AND ADMINISTRATOR AD PROSEQUENDUM
    OF THE ESTATES OF KATHLEEN MERANDO
            AND KAYLYN MERANDO,

                                            Appellant

                           v.

 UNITED STATES OF AMERICA; COUNTY OF SUSSEX;
         TOWNSHIP OF WALPACK; PUBLIC
           SERVICE ELECTRIC AND GAS;
 JOHN DOES 1-10 (SAID NAMES BEING FICTITIOUS);
 XYZ CORPS. 1-10 (SAID NAMES BEING FICTITIOUS);
       JERSEY CENTRAL POWER AND LIGHT


     On Appeal from the United States District Court
            for the District of New Jersey
                (D.C. Civ. No. 04-3288)
     Honorable Garrett E. Brown, Jr., District Judge


       Submitted under Third Circuit LAR 34.1(a)
                  December 14, 2007

       BEFORE: RENDELL, GREENBERG, and
         VAN ANTWERPEN, Circuit Judges

               (Filed: February 20, 2008)
Richard A. Grodeck
Feldman Grodeck
80 Main Street
West Orange, NJ 07052

   Attorneys for Appellant

Christopher J. Christie
United States Attorney
Pamela Perron
Assistant U.S. Attorney
970 Broad Street
Newark, NJ 07102

   Attorneys for Appellee


                  OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This case comes on before this Court on an appeal from
an order of the District Court entered October 5, 2006,
dismissing a complaint for lack of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). Merando v.
United States, Civ. No. 04-3288, 2006 WL 2865486 (D.N.J. Oct.
5, 2006). The action arose in the aftermath of a tragedy when on
August 11, 2003, a tree in the Delaware Water Gap National
Recreation Area fell onto a roadway and crushed a passing car
driven by Janine Noyes in which Kathleen Merando and her
nine-year old daughter Kaylyn Merando were passengers. Mrs.
Merando and Kaylyn were killed instantly. Anton Merando,
Mrs. Merando’s husband and Kaylyn’s father, filed this action
alleging that the Government negligently pruned and failed to
find and remove the hazardous tree. But the District Court
dismissed the case as it concluded that the discretionary function
exception to the Federal Tort Claims Act deprived it of subject
matter jurisdiction and thus immunized the Government from
suit. We will affirm.

                                2
          I. FACTS AND PROCEDURAL HISTORY

       The Delaware Water Gap National Recreation Area
(“Park”) occupies 63,000 acres in New Jersey and Pennsylvania
along the Delaware River. The Park primarily is forested land
accessed by 169 miles of roadways, 68 miles of trails, and
several streams. The developed areas include campgrounds,
boat launch areas, visitor centers, picnic areas, historic sites, and
parking lots. The Pennsylvania side of the Park contains more of
the developed attractions and thus more people visit it than visit
the New Jersey side which does not have developed beaches,
boat launches, or visitor centers. The National Park Service, an
agency within the Department of the Interior, manages the Park.

        On August 11, 2003, Noyes was driving her car southerly
on Route 615 on the New Jersey side of the Park with Kathleen
and Kaylyn Merando as passengers. Noyes drove the car by a
twenty-seven foot tall red oak tree that was about six yards off
the road. The Government took title to the land where the oak
tree was situated in 1969 and to the roadway itself in 1996. The
tree’s natural growth caused it to lean with its branches
extending over the roadway. More than ten years before the
tragedy here, an unknown person wielding a chainsaw had
“topped” and delimbed the tree, leaving it standing in a “Y”
shape with no bark or branches and with the dead tree pole
leaning toward the roadway. As their car passed nearby the tree
fell and crushed the car instantly killing Mrs. Merando and
Kaylyn.

       On July 9, 2004, Anton Merando filed his complaint in
the District Court which he amended on August 2, 2004. He
originally sued the United States of America, Sussex County,
Walpack Township, Public Service Electric and Gas, Jersey
Central Power and Light, John Does 1-10, and XYZ Corps. 1-10
but except for the United States of America all are no longer
parties to this case.

       Mr. Merando alleged that the District Court had subject
matter jurisdiction pursuant to the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346(b), 2679. In count one of his
amended complaint, he alleged that the Government as well as
                                 3
all the other defendants negligently pruned the tree causing it to
die and eventually collapse, killing the decedents. In count two,
he alleged that the tree constituted a hazardous and extremely
dangerous condition of which the Government and all the other
defendants knew or should have known and that all the
defendants negligently failed to act to remove the tree, killing
the decedents. In count three, he alleged that the decedents
sustained severe injuries resulting in pain and suffering that
continued until their deaths.

        The Government moved to dismiss the amended
complaint for lack of subject matter jurisdiction on the basis of
the discretionary function exception to the FTCA, and on
October 5, 2006, the District Court granted the motion. While
the Government also filed a motion to dismiss the complaint for
failure to state a claim, arguing that the New Jersey Landowners
Liability Act, N.J. Stat. Ann. §§ 2A:42A-2 to 10 (West 2000),
barred the action, inasmuch as the District Court found that it did
not have subject matter jurisdiction, it did not address that
motion.

       On October 26, 2006, Mr. Merando filed a timely notice
of appeal.




     II. JURISDICTION AND STANDARD OF REVIEW

       We have jurisdiction over the final order of the District
Court pursuant to 28 U.S.C. § 1291 and exercise plenary review
over application of the FTCA’s discretionary function exception.
See Mitchell v. United States, 225 F.3d 361, 362 (3d Cir. 2000).
We resolve the question of whether the District Court had
subject matter jurisdiction by this opinion.




                       III. DISCUSSION

       A. The Discretionary Function Exception

                                 4
       The United States of America, as a sovereign, is immune
from suit unless it consents to be sued. United States v.
Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351 (1980) (citing
United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767,
769-70 (1941)). Nevertheless, under the FTCA, the United
States has waived its sovereign immunity for:

      claims . . . for money damages . . . for injury or
      loss of property, or personal injury or death caused
      by the negligent or wrongful act or omission of any
      employee of the Government while acting within
      the scope of his 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); see also 28 U.S.C. § 2674.

        The FTCA carves out a “discretionary function”
exception, however, which provides that the Government cannot
be sued for any claim based upon “the exercise or performance
or the failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused.”
28 U.S.C. § 2680(a). The plaintiff, here Mr. Merando, bears the
burden of demonstrating that his claims fall within the scope of
the FTCA’s waiver of government immunity, In re Orthopedic
Bone Screw Prod. Liab. Litig., 264 F.3d 344, 361 (3d Cir. 2001),
but “‘[t]he United States has the burden of proving the
applicability of the discretionary function exception.’”
Cestonaro v. United States, 211 F.3d 749, 756 n.5 (3d Cir. 2000)
(quoting Nat’l Union Fire Ins. v. United States, 115 F.3d 1415,
1417 (9th Cir. 1997)).

        The discretionary function exception “marks the boundary
between Congress’ willingness to impose tort liability upon the
United States and its desire to protect certain governmental
activities from exposure to suit by private individuals.” United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762 (1984). The
                                5
exception’s purpose is “to prevent judicial ‘second-guessing’ of
legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action
in tort.” Id. at 814, 104 S.Ct. at 2765.

       Courts make two-part inquiries to determine whether the
discretionary function exception applies in any particular case.
United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267,
1273-74 (1991). First, a court must determine whether the act
giving rise to the alleged injury and thus the suit involves an
“element of judgment or choice.” Id. at 322, 104 S.Ct. at 1273
(quoting Berkovitz v. United States, 486 U.S. 531, 536, 108
S.Ct. 1954, 1958 (1988)). “The requirement of judgment or
choice is not satisfied 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.’” Id. (quoting Berkovitz, 486 U.S. at
536, 108 S.Ct. at 1958-59); see also Mitchell v. United States,
225 F.3d at 363; Cestonaro, 211 F.3d at 753. The Supreme
Court has stated:

               [I]f a regulation mandates particular
       conduct, and the employee obeys the direction, the
       Government will be protected because the action
       will be deemed in furtherance of the policies
       which led to the promulgation of the regulation. 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. On the other hand, if a
       regulation allows the employee discretion, the very
       existence of the regulation creates a strong
       presumption that a discretionary act authorized by
       the regulation involves consideration of the same
       policies which led to the promulgation of the
       regulations.

Gaubert, 499 U.S. at 324, 111 S.Ct. at 1274 (internal citation
omitted).



                                 6
      Second, even if the challenged conduct involves an
element of judgment, the court must determine “whether that
judgment is of the kind that the discretionary function exception
was designed to shield.” Id. at 322-23, 111 S.Ct. at 1273.

       Because the purpose of the exception is to prevent
       judicial ‘second-guessing’ of legislative and
       administrative decisions grounded in social,
       economic, and political policy through the medium
       of an action in tort, when properly construed, the
       exception protects only governmental actions and
       decisions based on considerations of public policy.

Id. (internal quotation marks and citations omitted). The “focus
of the inquiry is not on the agent’s subjective intent in exercising
the discretion conferred by the statute or regulation, but on the
nature of the actions taken and on whether they are susceptible
to policy analysis.” Id. at 325, 111 S.Ct. at 1275; see also
Mitchell, 225 F.3d at 363-64; Cestonaro, 211 F.3d at 753;
Sea-Land Serv. Inc. v. United States, 919 F.2d 888, 892 (3d Cir.
1990).

       B. The Challenged Government Conduct

        Before we can make the two-part Gaubert inquiry to
determine whether the discretionary function exception
immunizes the Government from a suit based on its conduct, we
must identify the conduct at issue. Cestonaro, 211 F.3d at 753.
Mr. Merando contends that the conduct for purposes of the
discretionary function exception analysis is twofold: first, that
the Park Service’s Roads and Maintenance crews negligently
“topped” the tree without removing it; and second, that the crews
negligently failed to find and remove the “topped” tree. He
contends that the discretionary function exception does not apply
here because the Park Service’s unwritten hazardous tree
management plan mandated the crews never to “top” trees but
rather to identify and remove hazardous trees as they drove the
roads of the Park.




                                 7
      On the other hand the Government contends that the
conduct at issue is the Park Service’s decisions that comprise its
hazardous tree management plan and its execution of that plan.

        To aid us in our analysis, we review Autery v. United
States, a case that is remarkably similar to this case. 992 F.2d
1523 (11th Cir. 1993); see also Rosebush v. United States, 119
F.3d 438, 441-42 (6th Cir. 1997) (relying on Autery in
determining what conduct was at issue when plaintiffs sued the
Government for negligently failing to maintain fire pit at
campground). In Autery, a black locust tree fell on a passing car
in the Great Smokey Mountain National Park, killing one
passenger and injuring another. 992 F.2d at 1524. At the time
of the accident, the Park Service had an unwritten policy “to
make every reasonable effort within the constraints of budget,
manpower, and equipment available to detect, document,
remove, and prevent tree hazards.” Id. at 1525. To implement
this policy, Park Service personnel “initially conducted visual
inspections from trucks driven along the road. Any tree that
appeared hazardous was then inspected more closely.” Id. In
the Autery situation Park Service personnel received information
regarding the risks posed by black locust trees in the park. After
a bench trial, the district court found that the Government “had
negligently failed to (1) devise, implement and follow an
appropriate tree hazard management plan; (2) properly maintain
the National Park area; (3) properly inspect the trees in the
National Park in the area where the accident occurred; and (4)
identify and remove the hazardous trees which fell and struck
[the victims].” Id. at 1524.

        On appeal, the Court of Appeals for the Eleventh Circuit
confronted the question of identifying the conduct at issue for
purposes of a discretionary function exception analysis. The
Government argued that the conduct was the Government’s
“decision to establish and implement a tree inspection program,”
while the plaintiffs contended that the conduct was “the park’s
failure to carry out the mandates of its then existing policy of
identifying and eliminating known hazardous trees.” Id. at 1527
(quotation marks omitted). The district court had held that “the
inquiry . . . is whether the Park Service officials had discretion

                                 8
under their Tree Hazard Management Plan to remove
‘hazardous’ trees.” Id.

      The court of appeals, however, stated:

      The government’s focus on the decision to
      establish a tree inspection plan is too broad; as
      plaintiffs concede, the government had the
      discretion to adopt or not adopt a plan at all. The
      more important question is whether any statute,
      regulation or agency guideline specifically
      provided that if a tree inspection plan were
      developed, it would have to include particular
      inspection procedures.

Id. (footnote omitted). The court continued:

      Plaintiffs’ and the district court’s focus, on the
      other hand, is too narrow. The particular inquiries
      posed by plaintiffs and the district court are based
      on misinterpretations of the law. Plaintiffs’
      support their contention that the discretionary
      function exception does not apply to the manner in
      which park personnel administered the inspection
      plan by relying on Fifth Circuit cases that had held
      that the government was not protected when it was
      performing an operational function. The Supreme
      Court squarely rejected this proposed distinction in
      Gaubert, ruling that the Fifth Circuit ‘erred in
      holding that the [discretionary function] exception
      does not reach decisions made at the operational or
      management level.’ Gaubert, 499 U.S. at 325, 111
      S.Ct. at 1275. ‘Discretionary conduct is not
      confined to the policy or planning level.’ Id.; see
      also Varig Airlines, 467 U.S. at 813, 104 S.Ct. at
      2764 (‘[I]t is the nature of the conduct, rather than
      the status of the actor, that governs whether the
      discretionary function exception applies in a given
      case.’).



                                9
Id. at 1527-28 (internal citations, quotation marks and footnote
partially omitted). The court added:

       The district court’s inquiry, on the other hand, by
       asking whether the park officials had discretion to
       remove ‘hazardous’ trees, begs the question. The
       tree inspection program was designed to identify
       which trees were hazardous. Whether park
       personnel had discretion in executing that plan is
       the relevant issue. The district court’s analysis
       appears to collapse the question of whether the
       Park Service was negligent into the discretionary
       function inquiry. That is, after finding that the
       Park Service had knowledge of the danger of black
       locust trees, the district court imposed a
       ‘reasonableness’ requirement on the government’s
       conduct.

Id. at 1528. The court concluded:

       It is the governing administrative policy, not the
       Park Service’s knowledge of danger, however, that
       determines whether certain conduct is mandatory
       for purposes of the discretionary function
       exception. The FTCA expressly provides that the
       exception applies to policy judgments, even to
       those constituting abuse of discretion. Therefore,
       the relevant inquiry here is whether controlling
       statutes, regulations and administrative policies
       mandated that the Park Service inspect for
       hazardous trees in a specific manner. If not, then
       the Park officials’ decision to employ a particular
       inspection procedure – and its execution of that
       plan – is protected by the discretionary function
       exception.

Id. (internal citations and quotation marks omitted). Ultimately,
the court of appeals held that the discretionary function
exception immunized the Government from a lawsuit based on
the decisions Park Service personnel made in designing and
implementing the park’s unwritten tree inspection program, and
                                10
thus the court dismissed the case for lack of subject matter
jurisdiction.

       Mr. Merando presents an argument that is very similar to
the plaintiffs’ argument and the district court’s decision in
Autery. He contends that the conduct at issue is the
Government’s alleged failure properly to prune, find, and
remove the hazardous tree.

        Mr. Merando’s allegation that the Government
negligently pruned the tree causing it to decay and collapse
implies that it was the Government that topped the tree. But this
allegation is unsupportable because Mr. Merando has not shown
that the Government in any way was involved in the topping of
the tree either by consenting to its topping or actually topping it
itself. In reaching this conclusion, we recognize, of course, that
the Government took title to the site of the tree in 1969.
Moreover, we realize that Mr. Merando contends in his brief that
“according to the evidence” the tree was topped “during the 30+
years after the [National Parks Service] took title to it in 1969,”
therefore suggesting that it controlled the tree when the unknown
person topped it. Appellant’s Br. at 14.

        We cannot, however, draw any inference from this
chronology of events as it cannot be inferred that, against
Government policy not to top trees, it was the Government that
topped the tree or that it consented to its topping merely because
it may have owned the land on which the tree was situated when
the unknown person topped it. After all, in Mr. Merando’s
answers to interrogatories he tells us that “[i]t is understood from
documents which have been produced in discovery . . . that the
County of Sussex retained responsibility for tree trimming and
clearance even after jurisdiction for the County Road was
transferred to the United States of America” in 1996, app. at
281, thus suggesting that Sussex County topped the tree. On the
other hand, in an uncontested motion for summary judgment
Sussex County asserted that “[t]he identity of the company or
individuals who topped the tree is unknown” but that the “tree
was topped presumably by a power company.” Furthermore,
there would be no basis to infer that the Government consented
to the topping of the tree or actually topped it merely because the
                                11
tree was situated in a 63,000 acre park at a location that it may
have owned when the unknown person topped the tree. Clearly,
too many different entities had access to the tree to permit a trier
of the fact to draw that inference.

       In sum, there is simply neither direct evidence nor
evidence from which an inference can be drawn that the
Government topped the tree and this absence of evidence as a
factual matter eliminates from this case Mr. Merando’s claim
that Park Service personnel violated a mandatory policy not to
“top” trees.1

        Accordingly, we only will analyze the other aspect of Mr.
Merando’s claim: his challenge to the Government’s alleged
negligent failure to find and remove the tree. Mr. Merando
argues that the Park Service’s crews did not have discretion not
to find and remove the hazardous tree. Like the district court’s
decision in Autery, however, Mr. Merando’s argument begs the
question. The Park Service designed its hazardous tree
management plan, which we detail below, to identify which trees
were hazardous. The relevant issue here is whether the Park
Service had discretion in formulating and executing that plan.

       Mr. Merando’s claims regarding the Government’s
alleged negligent failure to find and remove the tree essentially
are a challenge to the Park Service’s plan for finding and
managing hazardous trees. The Park Service’s plan and its
execution of that plan constitutes the conduct at issue for
purposes of the discretionary function exception analysis. Like
the plaintiffs’ argument in Autery, Mr. Merando’s focus on the
actions of the Park Service crews simply is too narrow. The
relevant inquiry is whether the controlling statutes, regulations,
and administrative policies mandate that the Park Service locate
and manage hazardous trees in any specific manner. If not, the


       1
        Clearly we can examine the facts with respect to the
identity of the person who topped the tree on this appeal from a
dismissal predicated on the want of subject matter jurisdiction
under Federal Rule of Civil Procedure 12(b)(1). See Cestonaro,
211 F.3d at 752.
                              12
Park Service’s decisions as to the precise manner in which to do
so, and its execution of those decisions, clearly fall within the
discretionary function exception to the government’s tort
liability. See also Varig Airlines, 467 U.S. at 819-20, 104 S.Ct.
at 2767-68 (discretionary function exception protects both
Government’s decision to “spot-check” airplanes for compliance
with safety regulations and execution of those “spot-checks” by
Government personnel).

       C. Whether the Discretionary Function Exception
       Immunizes the Government from a Lawsuit Based
       on its Conduct

        Now that we have identified the Government’s conduct at
issue in this case, we determine whether the discretionary
function exception immunizes it from a lawsuit based on that
conduct. In this inquiry we first must decide whether a statute,
regulation, or policy required the Park Service to locate and
manage hazardous trees in any specific manner, or whether the
Government’s actions were discretionary because they involved
an “element of judgment or choice.” Gaubert, 499 U.S. at 322,
111 S.Ct. at 1273.

       The National Park Service was established to

       promote and regulate the use of the Federal areas known
       as national parks, monuments, and reservations . . . by
       such means and measures as conform to the fundamental
       purpose of the said parks, monuments, and reservations,
       which purpose is to conserve the scenery and the natural
       and historic objects and the wild life therein and to
       provide for the enjoyment of the same in such manner and
       by such means as will leave them unimpaired for the
       enjoyment of future generations.

16 U.S.C. § 1. The Park Service’s specific mission for the
Delaware Water Gap National Recreation Area is to maintain the
property “for public outdoor recreation use and enjoyment . . . by
the people of the United States and for preservation of the
scenic, scientific, and historic features contributing to public
enjoyment of such lands and waters . . . .” 16 U.S.C. § 460o.
                               13
       In the administration of the Park, “the Secretary of the
Interior may utilize such statutory authorities relating to areas of
the national park system and such statutory authorities otherwise
available to him for the conservation, management, or disposal
of vegetative, mineral, or fish or wildlife resources as he deems
appropriate . . . .” 16 U.S.C. § 460o-3. Moreover, the Secretary

       shall adopt and implement . . . a land and water use
       management plan, which shall include specific
       provision for, in order of priority – (1) public
       outdoor recreation benefits; (2) preservation of
       scenic, scientific, and historic features contributing
       to public enjoyment; (3) such utilization of natural
       resources as in the judgment of the Secretary of the
       Interior is consistent with, and does not
       significantly impair, public recreation and
       protection of scenic, scientific, and historic
       features contributing to public enjoyment.

16 U.S.C. § 460o-4.

       The Park Service’s “Management Policies 2001” manual
sets out its visitor safety policy:

       The saving of human life will take precedence
       over all other management actions as the Park
       Service strives to protect human life and provide
       for injury-free visits. The Service will do this
       within the constraints of the 1916 Organic Act.
       The primary – and very substantial – constraint
       imposed by the Organic Act is that discretionary
       management activities may be undertaken only to
       the extent that they will not impair park resources
       and values. . . . When practicable, and consistent
       with congressionally designated purposes and
       mandates, the Service will reduce or remove
       known hazards and apply other appropriate
       measures, including closures, guarding, signing, or
       other forms of education. In doing so, the
       Service’s preferred actions will be those that have
       the least impact on park resources and values . . . .
                                 14
       These management policies do not impose park-
       specific visitor safety prescriptions. The means by
       which public safety concerns are to be addressed is
       left to the discretion of superintendents and other
       decision-makers at the park level, who must work
       within the limits of funding and staffing.

App. at 368. Significantly, nothing in the above-quoted statutes
or policies mandates how the Government should locate or deal
with hazardous trees.

       In addition to these statutes and policies, the Park Service
issued a 1991 document entitled “Natural Resources
Management Guidelines,” containing a “Hazardous Tree”
section that “provides the foundation for each park to implement
its own hazardous tree management plan . . . , and also to
provide a general scheme for such plans.” App. at 177. This
section states in pertinent part:

       The following guidance may be used in developing
       a park plan. Each plan must be tailored to a park’s
       particular requirements according to vegetation
       type(s), type of visitor use areas, frequency of
       visitation, and other factors.

       ....

       Periodically, any trees which stand within falling
       distance of public use areas and which might pose
       a hazard to the public or significant property
       should be systematically inspected for flaws. The
       form and frequency of routine inspection or
       surveillance will depend on the type of visitor use
       areas (which will be defined later). The
       constraints of manpower available to a park may
       not permit periodic inspection of all pertinent
       areas. . . . Frequency of inspection as called for in
       the [hazardous tree management plan] becomes a
       local issue keyed to the nature of the park and
       visitor use.

                                15
       ....

       Any tree denoted as hazardous should be promptly
       cared for, using the best arboricultural techniques,
       to eliminate the hazardous status of the tree. If it
       cannot be made safe, or if the effort to make it safe
       would be too costly in terms of manpower or
       dollars, then the tree may be removed.

       ....

       Deliberate visual inspections of transportation
       corridors should include all trees that could affect
       the roadway. Areas that may be screened or
       otherwise difficult to view from the road should be
       given a walk-through inspection. Drive-by
       inspections may not catch all flaws in the trees
       along roadways. However, it is generally
       recognized that it may not be realistically possible
       to walk by all trees along miles of roadways, and
       under these conditions a documented drive-by
       inspection should be considered satisfactory.

App. at 179-83.

        The 1991 guidelines – which explicitly state that they
“may be used” – do not mandate any particular methods of
hazardous tree identification or removal. Instead, they make
suggestions that Park officials are free to accept or reject. Thus,
according to Park Superintendent John Donahue, although “the
Park has used this guideline as a reference point in its attempt to
draft a workable hazard tree management plan,” the Park
officials have not “been able to institute such a plan.” App. at
291.

        Although the Park Service has not instituted a written
hazardous tree management plan, its Roads and Trails crews
follow an unwritten plan for identifying and removing hazardous
trees in the Park. In areas of high visitor usage, i.e., where
people are known to congregate and buildings are located, the
Roads and Trails crews inspect trees on foot, looking at
                                16
individual trees. In undeveloped, low usage areas, Roads and
Trails crews perform “windshield inspections”: while driving
they survey the scene for dangerous conditions. If a tree or limb
impedes traffic on the road, is leaning into the road, overhangs
the road, or otherwise is made known to the crew as defective,
the crew gets out and examines the tree more closely. There is
no specific route or schedule for windshield inspections.

        Once a Park Service crew identifies a hazardous tree, it
will take steps to manage the problem the same or the next day,
depending on the availability of proper equipment. Pursuant to
the unwritten policy, Park Service crews will not top trees and
leave the trunk standing, because a topped tree quickly will die
and become hazardous.

        In considering whether the discretionary function
exception protected the Government in this case, the District
Court looked to three cases for guidance. Because we, too, find
that these cases are particularly useful for our analysis, we will
review them as well.

        In Varig Airlines the Supreme Court held that the
discretionary function exception immunized the Government
from suit for its alleged negligence in certifying two separate
planes for use in commercial aviation. 467 U.S. at 821, 104
S.Ct. at 2768. The Government had devised a system of
compliance review in which it would “spot-check” aircraft
manufacturers’ own inspections and tests to establish that an
aircraft design conformed to safety regulations. Id. at 816-17,
104 S.Ct. at 2766. The Court stated that the plaintiffs’
“contention that the FAA was negligent in failing to inspect
certain elements of aircraft design before certificating the
[aircraft] necessarily challenges two aspects of the certification
procedure: the FAA’s decision to implement the ‘spot-check’
system of compliance review, and the application of that ‘spot-
check’ system to the particular aircraft involved in these cases.”
Id. at 819, 104 S.Ct. at 2767. The Court concluded that the
discretionary function exception immunized the Government’s
decision to implement the “spot-check” system, and stated:



                                17
       the FAA has determined that a program of ‘spot-
       checking’ . . . best accommodates the goal of air
       transportation safety and the reality of finite
       agency resources. Judicial intervention in such
       decisionmaking through private tort suits would
       require the courts to ‘second-guess’ the political,
       social, and economic judgments of an agency
       exercising its regulatory function. It was precisely
       this sort of judicial intervention in policymaking
       that the discretionary function exception was
       designed to prevent.

Id. at 819-20, 104 S.Ct. at 2767-68. The Court also determined
that “the acts of FAA employees in executing the ‘spot-check’
program in accordance with agency directives are protected by
the discretionary function exception as well,” because the
employees were

       specifically empowered to make policy judgments
       regarding the degree of confidence that might
       reasonably be placed in a given manufacturer, the
       need to maximize compliance with FAA
       regulations, and the efficient allocation of agency
       resources.

Id. at 820, 104 S.Ct. at 2768.

        In Mitchell v. United States we concluded that the
discretionary function exception immunized the Government
from a lawsuit brought by a plaintiff whose car collided with a
concrete head-wall at the end of a drainage ditch in the Delaware
Water Gap National Recreation Area. 225 F.3d at 366. We
found that the National Park Service’s decision about how and
when to reconstruct the road was a discretionary decision that
required the Park Service to “balance its mission of preserving
the parklands against the severity of design flaws and the
different levels of deterioration of the road.” Id. at 364. We
stated that “[t]he Service’s choice to focus on a few highly
dangerous portions of the road rather than to distribute its finite
resources along the whole of Route 209 is a policy choice this
court should not second-guess.” Id.
                                 18
       The District Court here also considered Autery, which we
discussed above when determining what the Government’s
conduct was that was at issue in this case. In Autery, as we have
noted, a tree fell on a car as it drove through the Great Smokey
Mountain National Park, killing one passenger and injuring
another. At the time of the accident, the Government had an
unwritten policy under which its personnel would conduct visual
inspections of trees while driving along the road, and more
closely inspect any tree that appeared hazardous. The issue
before the court of appeals was “whether controlling statutes,
regulations and administrative policies mandated that the Park
Service inspect for hazardous trees in a specific manner. If not,
then the Park officials’ decision to employ a particular
inspection procedure – and its execution of that plan – is
protected by the discretionary function exception.” Id. at 1528.
The court found that there was no policy establishing a
mandatory requirement so as to deprive Government personnel
of discretion, and that “the inspection plan in effect at the time of
the accident did not compel park employees to inspect certain
trees on certain days or remove a particular number of trees per
week.” Id. at 1529. The court also noted that “there was no
evidence presented in the district court that park personnel did
not fully comply with the tree inspection procedure.” Id. at
1530. The court then determined that the Government’s
discretionary conduct was susceptible to policy analysis:

       To decide on a method of inspecting potentially
       hazardous trees, and in carrying out the plan, the
       Park Service likely had to determine and weigh the
       risk of harm from trees in various locations, the
       need for other safety programs, the extent to which
       the natural state of the forest should be preserved,
       and the limited financial and human resources
       available.

Id. at 1531. Accordingly, the court held that the discretionary
function exception deprived it and the district court of
jurisdiction over a suit against the Government based on the
decisions made by Government personnel in designing and
implementing the unwritten tree inspection program in the park.
Id. at 1531.
                                 19
       We conclude that the controlling statutes, regulations, and
policies that led to the creation of the Park Service’s unwritten
plan did not mandate any particular methods of hazardous tree
management. As the District Court noted, the Park Service “was
responsible for choosing the methods by which it maintained the
Park and protected its visitors. The [Park Service’s] decisions
concerning tree inspections, i.e. using windshield inspections for
lower usage areas, involved the type of judgment or choice that
the discretionary function exception protects.” Merando, 2006
WL 2865486, at *6. Like the Government’s hazardous tree
management plan in Autery, the unwritten inspection plan in this
case “did not compel park employees to inspect certain trees on
certain days or remove a particular number of trees per week.”
Id. at 1529. In these circumstances, both the Government’s
decision to implement “windshield inspections” for low usage
areas of the Park and its selection of the method of execution of
those inspections by Park Service personnel required the
exercise of discretion.

        Furthermore, both the Park Service’s decision to
implement the “windshield inspection” program and the
execution of those inspections by Park personnel are susceptible
to policy analysis, and thus they satisfy the second prong of the
Gaubert inquiry for the Government to have immunity for its
conduct. The Government had to consider how best to use its
limited financial and human resources in a manner that balanced
visitor safety with visitor enjoyment and conservation of the
Park. See 16 U.S.C. § 1. Moreover, as in Autery, the
Government had to “determine and weigh the risk of harm from
trees in various locations [and] the need for other safety
programs, the extent to which the natural state of the forest
should be preserved, and the limited financial and human
resources available.” 992 F.2d at 1531.

        Mr. Merando attempts to distinguish Autery, contending
that “[t]he Eleventh Circuit found that park inspections there
(windshield inspections) were not mandated to be conducted in a
specific manner, like daily, unlike the inspections here, and
consequently held that the exception applied. . . . Here the
windshield inspections were required to be conducted on Route
615 as the crews traveled it day-to-day, and Park policy
                               20
mandated that topped trees be reported for removal.”
Appellant’s rep. br. at 7.

        Mr. Merando is incorrect. While the Park Service’s
unwritten plan required personnel to scan for hazardous trees as
they drove the Park’s roads, there is no statute, regulation, or
policy dictating the specifics of that requirement; i.e., Park
Service personnel were not told when or how often to drive
Route 615, or when to exit their vehicles to conduct individual
tree inspections. This case clearly is on all fours with Autery.
Moreover, although Park Service personnel were required to
report a hazardous tree if they were aware of it, there is no
evidence that they saw the tree that fell on the Merandos.
Whether they would have been required to report the tree if they
had seen it therefore is irrelevant to our analysis. Indeed, we
will assume that it is likely that Park Service personnel would
have identified and removed the hazardous tree if they had
conducted a close-up, individual inspection of the tree and thus
this tragedy would not have happened. But because of the Park
Service’s decision to implement “windshield inspections” in low
usage areas of the Park, Park Service personnel did not find and
remove the tree. The discretionary function exception
immunizes the Government from a lawsuit based on these
circumstances.

       We are struck by the similarity of Park Service’s
“windshield inspections” to the FAA’s “spot-check” program in
Varig Airlines. In both situations, the Government was required
to “establish priorities for the accomplishment of its policy
objectives by balancing the objectives sought to be obtained
against such practical considerations as staffing and funding.”
Varig Airlines, 467 U.S. at 819, 104 S.Ct. at 2767. Like the
claims in Varig Airlines, Mr. Merando’s claims in this case
necessarily challenge both the Park Service’s decision to
implement the “windshield inspection” program and the acts of
the Park Service employees in carrying out that program. Their
conduct here is indistinguishable in a legal sense from the FAA’s
conduct in Varig Airlines which the Supreme Court held to be
protected by the discretionary function exception.



                               21
        Mr. Merando argues that the FAA’s implementation of
the “spot check” program in Varig Airlines is distinguishable
from the Park Service’s decision to implement the “windshield
inspection” program here, because “the decision [in Varig
Airlines] to use representative sample inspections was a
resource-driven, discretionary act, intentionally leaving the vast
majority of designs and individual planes uninspected,” while in
this case “all of Route 615 was routinely driven, and all of its
cognizable trees were to be inspected in that process. No
‘sampling’ ever occurred, nor did the Park’s employees describe
a policy to sample by inspecting only certain areas of Route 615
as representative of the rest.” Appellant’s rep. br. at 4-5.

        Mr. Merando, however, has not sufficiently distinguished
these two cases: like the decision in Varig Airlines, the
Government’s choice here to use “windshield inspections” in
low usage areas of the Park was a discretionary decision, driven
by limited resources, not to individually inspect every potentially
hazardous tree in the Park, even if that meant that some hazards
would remain unidentified. There is no escape from the fact that
in forested areas trees always can fall and pose a danger to any
person in the area and it is not only entirely appropriate that
Government personnel have discretion as to what trees to inspect
and how to make the inspections but necessary that they have
that discretion. Accordingly, it is clear that the execution of the
“spot check” program in Varig Airlines by FAA personnel,
where the personnel were “specifically empowered to make
policy judgments,” mirrors the execution of the “windshield
inspection” program by the Park Service in this case, where the
personnel were not given a specific inspection plan mandating
the particular trees to inspect or the routes to drive.

        The Park Service’s determination on how to distribute its
finite resources to locate and remove hazardous trees also is
similar to the decision the Park Service faced in Mitchell, where
the Park Service had to decide how to improve a long stretch of
dangerous and deteriorating roadway. Here, knowing that it
could not inspect every tree in the Park, the Park Service decided
to expend the bulk of its resources on high-visitor use areas of
the Park. Like the Government decision in Mitchell, the Park

                                22
Service’s decision in this case represents “a policy choice this
court should not second-guess.” Mitchell, 225 F.3d at 364.

       Mr. Merando argues that this case differs from Mitchell
because in Mitchell “the Park knew . . . that the road culvert in
question might be a safety hazard, but allocated its finite
resources to other, more pressing road projects,” while in this
case “the Park did not concede that it knew any hazardous trees
existed on Route 615, claimed it did not know the topped tree on
Route 615 which killed the Merandos existed, and was not
following any Park improvement, or resource plan which
prevented it from knowing or from reporting it for removal.”
Appellant’s rep. br. at 5-6.

        Mr. Merando does not explain why his purported
distinction between these two cases is relevant to the question at
hand and we think that the difference in the facts does not create
a legal distinction between the situations. To start with it would
be strange to hold that the Government could be liable for
injuries caused by a risk of which it was unaware but not be
liable for risk caused by a danger of which it was aware but
chose not to remedy. If anything it might be thought that courts
would reach the opposite result. In any event, the Park Service
knew that every tree in the Park could become hazardous to the
safety of its visitors, employees, and property, which is why it
decided to implement the inspection program. Moreover, and
contrary to Mr. Merando’s claim in his reply brief, the Park
Service was following a “resource plan” – namely, its hazardous
tree management plan, which took into account the resources
available for locating and removing hazardous trees throughout
the Park. As in Mitchell, the Park Service made a decision to
“allocate[ ] its finite resources to other, more pressing [ ]
projects,” Appellant’s rep. br. at 5, when it decided to conduct
more thorough inspections in high-use areas of the Park and
implement the “windshield inspection” program in the area of
the Park where the tree was located. Thus, Mr. Merando’s
claimed distinction between this case and Mitchell is incorrect.

      In these circumstances, the District Court correctly
concluded that the discretionary function exception immunized
the Government from a lawsuit based on its decisions regarding
                                23
the maintenance of the Park and the carrying out of that
maintenance by the Roads and Trails crew. While we recognize
that there was a terrible event with awful consequences here,
unfortunately for Mr. Merando the courts simply do not have
jurisdiction over his suit.

      D. The New Jersey Landowners Liability Act

        In the District Court and on this appeal, the Government
also argued that the courts should dismiss Mr. Merando’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
because the New Jersey Landowners Liability Act, N.J. Stat.
Ann. §§ 2A:42A-2 to 10 bars the action. Inasmuch as we have
concluded that by reason of the discretionary function exception
to the sovereign immunity waiver the federal courts do not have
jurisdiction over this case and we thus will affirm the order of
October 5, 2006, dismissing this action on that basis, we do not
consider the New Jersey statute.




                      IV. CONCLUSION

       For the foregoing reasons, we will affirm the decision of
the District Court of October 5, 2006. No costs shall be taxed on
this appeal.




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