                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-29-2000

Ghana v. Holland
Precedential or Non-Precedential:

Docket 97-7043




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Recommended Citation
"Ghana v. Holland" (2000). 2000 Decisions. Paper 181.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/181


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Filed August 28, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3357

DEBBIE MITCHELL

v.

UNITED STATES OF AMERICA,

       Appellant.

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 96-cv-00897)
District Judge: Honorable A. Richard Caputo

Argued: June 13, 2000

Before: SLOVITER, BARRY and ALDISERT, Circuit Judges.

(Filed: August 28, 2000)

       Mary C. Frye
       United States Attorney
       David M. Barasch
       United States Attorney
       David W. Ogden
       Acting Assistant Attorney General
       Office of United States Attorney
       Federal Building
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, PA 17108
       Robert S. Greenspan
       United States Department of Justice
       Civil Division, Appellate Staff
       10th & Pennsylvania Avenue, N.W.
       Washington, D.C. 20530-0001

       Douglas Hallward-Driemeier (Argued)
       United States Department of Justice
       Civil Division, Appellate Staff
       601 D Street, N.W.
       Washington, D.C. 20530

       Attorneys for Appellant

       J. Craig Currie (Argued)
       Currie & Strawley
       Two Penn Center
       Suite 1032
       Philadelphia, PA 19102

       Attorney for Appellee

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This appeal from the district court's judgment in favor of
Appellee Debbie Mitchell in her complaint brought under
the Federal Tort Claims Act (FTCA), 28 U.S.C. S 1346,
requires us to decide whether the National Park Service's
choice not to repair or improve a drainage ditch and
concrete head-wall located five feet west of a paved roadway
came within the discretionary function exception to the Act
so as to immunize the Service from Mitchell's suit brought
after she collided with a head-wall at the end of a drainage
ditch.

Under the Federal Tort Claims Act, the United States
waives sovereign immunity for torts involving "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." 28 U.S.C.
S 1346(b). The FTCA carves out an exception to
governmental liability and provides:

                                  2
       The provisions of this chapter . . . shall not apply to--

       (a) Any claim based upon an act or omission of an
       employee of the Government . . . 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 . . .

28 U.S.C. S 2680.

The United States contends on appeal that the National
Park Service's decision not to repair or improve the
drainage ditch and head-wall was a legitimate exercise of
governmental discretion and thus not actionable under the
FTCA. We agree with the government and will reverse.

The district court had federal question jurisdiction under
28 U.S.C. SS 1346(b), 2671. This court has appellate
jurisdiction over the final decision of the district court
pursuant to 28 U.S.C. S 1291. The United States filed a
timely notice of appeal under Rule 4(a), Federal Rules of
Appellate Procedure. This court exercises plenary review
over the applicability of the discretionary function
exception. See United States Fidelity & Guaranty Co. v.
United States, 837 F.2d 116, 119 (3d Cir. 1988).

I.

The National Park Service, a bureau within the
Department of the Interior, manages the nation's parks and
recreational areas, including the Delaware Water Gap
National Recreation Area, a unit of the National Park
Service. Highway Route 209 runs through the Recreation
Area and was designed, built and maintained by the
Commonwealth of Pennsylvania. In 1983, the
Commonwealth ceded State Route 209 to the United States
as part of the Recreation Area.

Since the time the roadway was received from
Pennsylvania, the Park Service has adopted a policy aimed
at converting it from a commercial through-road to one
used in connection with the Recreation Area itself. To this
end, Congress enacted legislation closing the road to non-
local commercial traffic and provided funding for the
construction of a bypass in New Jersey, which was

                                3
explicitly intended as an alternative to Route 209. In 1996,
Congress provided that all commercial traffic not connected
with the Recreation Area itself will be barred from Route
209 as of September 30, 2005.

Since 1983 the Park Service has performed necessary
maintenance on the road. Because of the condition of the
road as received from the Commonwealth, however, the
Park Service has not had sufficient appropriations for a
complete reconstruction, which has resulted in the Service
setting priorities among work items. The Service conducted
an engineering study of the roads in the Recreation Area in
1986 that identified numerous bridges that were in need of
reconstruction because of structural deficiencies,
insufficient width and low load limits, and reported that
"most of the paved roads in the Recreation Area are in need
of an overlay in a minimum of ten years." App. at 154. The
study recognized also that "[c]oncrete posts, telephone
poles, culvert head-walls, and trees within the clear zone
. . . may constitute a safety hazard." Id. Such
encroachments existed "on nearly all road sections in the
Park." Id. Because of the massive repairs needed, the
Service was forced to determine priorities and repair the
most urgent problems first. From 1989 to 1993 no
accidents, other than Mitchell's, were attributed to the
Eshback area of Route 209, and a 1992 traffic safety report
did not cite this stretch of roadway as a high hazard area.
See App. at 65.

On July 27, 1993 at approximately 7:30 p.m., Appellee
Debbie Mitchell was driving her 1989 GMC pick-up
northbound on Route 209 within the Delaware Water Gap
National Recreation Area. The road is a two-lane asphalt
road which has a posted speed limit of 45 MPH. Attempting
to avoid an oncoming vehicle she believed was improperly
in her travel lane, she swerved to the right, drove off the
road, which had a 4-5 inch drop-off, and entered a grassy
area which sloped slightly to the right. The grassy area was
approximately 40-50 feet wide and constituted a"clear
zone" in which she traveled in excess of 300 feet, at which
point she turned to the left to re-enter the road at a speed
"no greater than 45 MPH." App. at 22. Mitchell over-
corrected, crossed over the northbound travel lane and the

                               4
southbound lane, drove off the paved roadway, entered a
drainage ditch and struck a concrete head-wall of a culvert
on the north end of the ditch. The head-wall, culvert and
ditch were all approximately five feet from the near edge of
paved road. Mitchell was seriously injured.

The district court entered final judgment in Mitchell's
favor, holding that the discretionary exception did not apply
to the Service's acts and that Mitchell did not negligently
operate her automobile. The United States now appeals. We
do not meet the question of negligence because we hold
that the court erred in not applying the discretionary
function exception. Accordingly, we will reverse.

II.

In United States v. Gaubert, 499 U.S. 315, 322-323
(1991), the Court provides a two-part inquiry to guide the
application of the discretionary function exception. First, a
court must determine whether the act involves an"element
of judgment or choice." 499 U.S. at 322. "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 . . . .' " Id. (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)); see
also Cestonaro v. United States, 211 F.3d 748, 753 (3d Cir.
2000).

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." Gaubert , 499 U.S. at
322-323 (quoting United States v. Varig Airlines , 467 U.S.
797, 813 (1984)). The "focus of the inquiry is not on the
agent's subjective intent in exercising the discretion
conferred by the statute, but on the nature of the actions
taken and on whether they are susceptible to policy
analysis." Id. at 325; see also Cestonaro, 211 F.3d at 753;
Sea-Land Serv. Inc. v. United States, 919 F.2d 888, 892 (3d
Cir. 1990).

A.

The government refers to the 1984 Park Road Standards
as providing guidance to the Park Service. See App. 67-74;
Appellee's App. at 1-5. In particular, the Standards read:

                               5
       Road safety and efficiency of operation depend on
       adequate levels of cyclic and preventative maintenance
       and repair, which are also essential to protect the
       Service's extensive capital investment in the physical
       facility constituted by park roads, parkways and
       bridges. Consequently, park roads shall be maintained
       to the standards to which they have been constructed
       or reconstructed, and in a condition that promotes
       safety and protects capital investment.

Appellee's App. at 3. The Standards "provideflexibility in
the planning and design processes to allow for
consideration of variations in types and intensities of park
use, for wide differences in terrain and climatic conditions,
and for protection of natural and cultural resources in
National Park System areas." App. at 69. Furthermore,
"[b]ecause of the resources preserved in the Federal land
management areas, and the type of tourist use in such
areas, the roads in certain instances do not have to be
constructed to normal highway standards." App. at 69.

Under these guidelines, the Park Service's decision about
how and when to reconstruct Route 209 would seem to be
a discretionary decision implicating a number of policy
considerations. When the Park Service took over Route 209
from the Commonwealth, there were numerous aspects of
the road's design, condition and safety that called for the
Park Service's attention. The Service was forced to prioritize
among these projects because of its restricted budget and
its limited ability to make repairs.

Because the Park Service legitimately exercised discretion
in determining the priority of road repairs and redesigns,
this court must determine whether its exercise of discretion
was of the type the exception was intended to shield.

B.

In making such decisions, the government must weigh
social, economic and political policy. The Park Service was
required to balance its mission of preserving the parklands
against the severity of design flaws and the different levels
of deterioration of the road as it was received from the
Commonwealth. The Service's choice to focus on a few

                               6
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.

The developing jurisprudence setting forth boundaries of
the exercise of agency discretion has begun to present
certain guidelines. At one extreme, some courts have held
that the agency decision went beyond the ambit of
appropriate discretion when the agency ignored blatant
safety hazards that could have been repaired through
routine periodic maintenance mandated by explicit policy.
In ARA Leisure Services v. United States, 831 F.2d 193 (9th
Cir. 1987), a tour bus went off the road and rolled over a
mountain pass in Denali Park, Alaska. Evidence showed
that the National Park Service had permitted a road,"which
had edges so soft as to be dangerous," to erode from an
original width of 28 feet to 14.6 feet at the accident site.
831 F.2d at 195. Citing Aslakson v. United States, 790 F.2d
688, 693 (8th Cir. 1986), the court explained that the
discretionary function exception does not apply"[w]here the
challenged governmental activity involves safety
considerations under an established policy rather than the
balancing of competing public policy considerations." ARA
Leisure Serv., 831 F.2d at 195. Applying the same rationale,
we held the Navy did not function within the ambit of
statutory agency discretion when it failed to provide a
handrail while requiring an employee to negotiate a steep
unlighted 20-feet long path where there was evidence that
two or three years before the accident the Navy had been
asked to install a handrail. Gotha v. United States, 115 F.3d
176, 181 (3d Cir. 1997). This court reasoned that the Navy
was not entitled to the protection of the discretionary
function exception because the government failed to
articulate a public policy rationale--military, social or
economic consideration--that factored into its decision not
to rebuild the stairway or install a handrail. See id. at 181-
182; see also Cestonaro, 211 F.3d at 757 (holding that
because the National Park Service failed to show how
providing some lighting, but not more, is grounded in policy
objectives it was not protected by the discretionary function
exception). We rejected the government's attempt to
characterize the decision not to take action as one of
national security: "This case is not about a national

                               7
security concern, but rather a mundane, administrative,
garden-variety, housekeeping problem that is about as far
removed from the policies applicable to the Navy's mission
as it is possible to get." Id. at 181.

Similarly, one of our sister circuits reached the
conclusion that a failure to repair can fall under the
discretionary function exception if it is based on a public
policy rationale. The court in Cope v. Scott, 45 F.3d 445
(D.C. Cir. 1995), determined that the Park Service's
decision not to repave a particularly slippery stretch of the
Rock Creek Parkway was protected. Id. at 451. The court
reasoned that "[d]etermining the appropriate course of
action would require balancing factors such as Beach
Drive's overall purpose, the allocation of funds among
significant project demands, the safety of drivers and other
park visitors, and the inconvenience of repairs as compared
to the risk of safety hazards." Id.; see also Baum v. United
States, 986 F.2d 716, 724 (4th Cir. 1993) ("The decision of
how and when to replace a major element of a substantial
public facility is . . . at bottom a question of how best to
allocate resources.").

III.

From case law, it becomes apparent that in applying the
teachings of Gaubert, the inquiry becomes fact-specific.

A.

It bears emphasis in this case that the Park Service
inherited Route 209 from Pennsylvania in 1983. The record
indicates that a study conducted shortly thereafter revealed
numerous design and safety issues. A number of bridges
were in need of repair or reconstruction due to structural
deficiencies, insufficient width and load limitations. One
bridge in particular was rapidly deteriorating. In addition,
the report found that "on nearly all road sections in the
park" there were obstructions within the desirable clear
zone, including "[c]oncrete posts, telephone poles, culvert
head-walls, and trees," some "within a foot or two of the
edge of the pavement." App. at 154. Finally, the study

                                8
indicated that most of the roads in the park would need to
be resurfaced within the next ten years.

In determining whether to commit funds for a complete
reconstruction of Route 209, the government had to
consider the ultimate purpose of the road, whether it would
continue as a major commercial through-road or whether
its use would be scaled back to serve principally as a
recreational road. The Park Service decided that it was
desirable to turn Route 209 into a "scenic parkway[ ] such
as Skyline Drive in Shenandoah National Park and Blue
Ridge Parkway." App. at 65. Congress closed the road first
to some and later to all non-park-related commercial traffic,
and it allocated monies toward the construction of a bypass
that would serve as an alternative to Route 209. However,
Congress did not allocate funds for the complete
reconstruction of the road itself.

In light of these larger policy decisions, the Park Service
was forced to determine priorities among the desirable
improvements to the recently ceded Route 209. Major
structural deficiencies, such as the rapidly deteriorating
bridge, understandably were "priority 1 work." App. at 154.
Among the roadside obstructions that were present all
along the park's roads, the Park Service report noted that
those within one or two feet of the road were of particular
concern.

B.

Unlike the roadway in ARA Leisure Services or the steep
hillside lacking a guardrail in Gotha, the complaint here
concerns a concrete culvert head-wall that was five feet
west of the paved roadway. This embankment would only
become dangerous to an operator of a vehicle when two
conditions are present: (1) the operator proceeded
northbound on a southbound lane, and (2) the operator
drove the vehicle five feet off the road in the wrong
direction. The Park Service had to balance the costs of the
repairs of every culvert head-wall along Route 209, along
with the other safety issues identified in the 1986 study,
against the low risk of an accident. See App. at 65 (from
1989 to 1993 no accidents, other than Mitchell's, were
attributed to the Eshback area of Route 209).

                                9
Under these circumstances we conclude that the
Service's decision to determine its repair and design
priorities came within the discretionary function exception
to the FTCA. Unlike Gotha, the Park Service has articulated
several policy considerations that are implicated in the Park
Service's decision not to undertake a reconstruction of all
drainage ditches along Route 209. This case, therefore, falls
in line with the major policy decisions at stake in Cope and
not the "mundane, administrative, garden-variety,
housekeeping problem" presented in Gotha, 115 F.3d at
181.

* * * * *

We have considered all other contentions raised by the
parties and conclude that no further discussion is
necessary. We hold that the discretionary function
exception applies to the Park Service's decision not to
repair or redesign the concrete culvert head-wall and thus
the district court did not have jurisdiction to entertain a
suit against the Service. The judgment of the district court
will be reversed and the proceedings remanded to the
district court with a direction to enter judgment in favor of
the government.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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