                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2002

Kilby v. USA
Precedential or Non-Precedential:

Docket 1-2181




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Recommended Citation
"Kilby v. USA" (2002). 2002 Decisions. Paper 37.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/37


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                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                           _____________

                           No. 01-2181
                          _____________

          DONALD J. KILBY; JOANN KILBY, his wife,

                              Appellants
              v.

          THE UNITED STATES OF AMERICA
                          _____________

           Appeal from the United States District Court
             for the Western District of Pennsylvania
                   (D.C. Civ. No. 99-cv-00278E)
           District Judge: Honorable Sean J. McLaughlin
                          _____________

                              Argued
                         January 7, 2002
      Before: MANSMANN, RENDELL and FUENTES, Circuit Judges.

                      (Filed January 24, 2002)
                           _____________

James D. McDonald, Jr., Esquire (ARGUED)
John J. Estok, Esquire
The McDonald Group
456 West Sixth Street
P.O. Box 1757
Erie, PA 16507-1757

  COUNSEL FOR APPELLANT
Bonnie R. Schlueter, Esquire
Jessical L. Smolar, Esquire
Office of the United States Attorney
633 U.S. Post Office & Courthouse
Pittsburgh, PA 15219

Stuart E. Schiffer
 Acting Assistant Attorney General
Linda L. Kelly
 United States Attorney
E. Roy Hawkens, Esquire (ARGUED)
Robert S. Greenspan, Esquire
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W.
Washington, D.C. 20530-0001

  COUNSEL FOR APPELLEE
                           ____________

                MEMORANDUM OPINION OF THE COURT
                         _____________

MANSMANN, Circuit Judge.
           Donald J. Kilby, an independent logger, suffered devastating
injuries while
working under contract with the United States Forest Service. Kilby filed
suit pursuant to
the Federal Tort Claims Act ("FTCA"), 28 U.S.C.    1346(b)(1), alleging,
among other
things, negligence on the part of the Forest Service in failing to warn
him of the high
concentration of dead trees in one of the areas covered by his contract.
Kilby alleges that
the District Court erred in granting the government's Rule 12(b)(1) motion
to dismiss
this claim on the basis of the discretionary function exception to the
FTCA. Because we
are convinced that the District Court properly applied that exception, we
will affirm the
order of the District Court.

                                I.
          This matter has been fully briefed and argued and the parties
are familiar
with the factual and procedural history underlying this appeal.
Accordingly, we proceed
directly to the merits of the sole issue before us: whether the
discretionary function
exception to the FTCA bars Kilby from pursuing his claim based on failure
to warn.
          Supreme Court precedent establishes that each of two criteria
must be
satisfied in order for the discretionary function exception to apply.
First, it must be
determined that no "federal statute, regulation or policy specifically
prescribes a course
of action" to be taken by an employee. Berkovitz v. United States, 486
U.S. 531, 536
(1988). If an employee retains judgment as to whether to pursue a
particular course of
action, a court must next determine whether the decision to act or not to
act is
"susceptible to policy analysis." United States v. Gaubert, 499 U.S. 315,
325 (1991).
We agree with the District Court that each of these criteria was satisfied
here and that, as
a result, Kilby's claim based on failure to warn was properly dismissed.
           The District Court rejected Kilby's argument that the Forest
Service
Manual, the Contract Administration Handbook and Occupational Safety and
Health Act
regulations required that the Forest Service warn contractors working near
high
concentrations of dead trees. We agree with the District Court that "the
broad safety
provisions of the Forest Service Manual and the Contract Administration
Handbook
plainly do not mandate that Forest Service employees warn contractors of
the danger of
naturally occurring dead trees" and that "OSHA regulations cited do not
apply to the
Forest Service." Kilby v. United States, No. 99-278, mem. op. at 6, 7
(W.D. Pa. May 3,
2001).
           We also agree that the decision concerning whether to warn of
the type of
danger posed here was properly characterized as based in government
policy. In
deciding to place the primary responsibility for worker safety with the
independent
contractors, the Forest Service takes into account "things such as forest
management and
silvicultural practices as well as budgetary and staffing considerations."
Id. at 8. These
policy-based judgments are not actionable under the FTCA.

                               II.
          Our sincere sympathy for Mr. Kilby does not permit us to ignore
the
jurisdictional bar imposed by Section 2680(a) of the FTCA.   We will,
therefore, affirm
the order of the District Court.

_________________________________

To the Clerk:
Please file the foregoing opinion.



          /s/ Carol Los Mansmann
                      Circuit Judge
