Dwyer v. USA CV-99-127-JD 11/17/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Christina B. Dwyer

v. Civil No. 99-127-JD

United States of America

O R D E R

Christina Dwyer sued the United States and Forest Ranger

David Neely under the Federal Tort Claims Act after sustaining

injuries in a fall from a trail in the White Mountain National

Forest. Defendant Neely has since been dropped from the suit.

Dwyer brought three claims against the United States: (1)

failure to warn of dangerous trail conditions; (2) failure to

adeguately maintain the trail; and (3) intentional, willful,

malicious, or reckless behavior, or gross negligence by Ranger

Neely in directing her to use the trail in dangerous conditions.

On June 4, 1999, the United States submitted a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(1) or, in the

alternative, for summary judgment on all three claims (document

no. 3). Dwyer objects only with respect to the third claim.

Therefore, the court dismisses Dwyer's first two claims and

proceeds to consider the third claim.

On July 30, 1999, Dwyer submitted a motion for leave to amend her complaint pursuant to Fed. R. Civ. P. 15(a) (document

no. 7). Dwyer already amended her complaint once as of right.

The United States objects.

Standard of Review

The United States' 12(b)(1) motion to dismiss for lack of

subject matter jurisdiction is predicated on the discretionary

function exception to the Federal Tort Claims Act. See

(a). If the exception applies, the court lacks

subject matter jurisdiction to hear the case. See id.; Magee v.

United States,

(1st Cir. 1997). Therefore, the

court must resolve the 12(b)(1) motion to dismiss first, before

undertaking a summary judgment analysis on the merits of the

plaintiff's claim. See Williams v. United States,

(4th Cir. 1995); see also United States v. Swiss Am. Bank,

(1st Cir. Sept. 8, 1999) (holding that

consideration of summary judgment motion should await

determination of jurisdiction); Miller v. George Arpin & Sons,

Inc.,

(D.R.I. 1997) (determining

jurisdiction under FTCA before considering summary judgment).

The party seeking to invoke the court's jurisdiction bears

the burden of establishing by competent proof that jurisdiction

exists. See Stone v. Dartmouth College,

, 107

2 (D.N.H. 1988) (citing O'Toole v. Arlington Trust Co.,

(1st Cir. 1982)). The court must "construe the complaint

liberally, treating all well-pleaded facts as true and indulging

all reasonable inferences in favor of the plaintiff." Aversa v .

United States,

(1st Cir. 1996) (citing Murphy

v. United States,

(1st Cir. 1995)). "A

plaintiff, however, may not rest merely on 'unsupported

conclusions or interpretations of law.'" Murphy,

(citing Washington Legal Found, v. Massachusetts Bar Found.,

(1st Cir. 1993)) . When ruling on a 12 (b) (1)

motion, "the court may consider whatever evidence has been

submitted, such as the depositions and exhibits submitted in this

case." Ayersa,

.

Background

On October 13, 1996, Christina Dwyer was hiking with a

companion in the White Mountain National Forest ("the Forest"),

which is managed and maintained by the United States Forest

Service. Towards late afternoon, Dwyer's party began to set up

camp in an area above the treeline, in what is known as the

alpine zone. The alpine zone contains alpine vegetation, some of

which is fragile and susceptible to damage by hikers.

As Dwyer and her companion were setting up camp. Forest

3 Ranger Neely approached and informed them that, because of

regulations designed to protect alpine vegetation, hikers were

not permitted to camp above the treeline and they would have to

move. Dwyer conveyed to Neely that they were tired, and it was

evident that the weather was worsening and daylight was fading.

Neely insisted that the two could not remain camped where they

were, but he did not mention to Dwyer or her companion that an

emergency shelter, the Lakes of the Clouds Hut ("the hut"), was

located nearby.

Dwyer and her companion, along with some other hikers,

proceeded to descend to a lower altitude along the Tuckerman

Ravine Trail ("the trail") towards another shelter. While they

were hiking, it began to rain. At an area of the trail called

the Tuckerman Ravine Headwall, Dwyer slipped and fell

approximately 200 feet and sustained serious personal injury.

Discussion

"It is well settled that the United States, as sovereign,

may not be sued without its consent." Murphy,

(citing United States v. Palm,

(1990)).

"Jurisdiction must be found in an express Congressional waiver of

immunity or consent to be sued."

One such express waiver is

the Federal Tort Claims Act ("FTCA"),

(b),

4 2671-2680. See Attallah v. United States,

(1st

Cir. 1992). The FTCA gives federal district courts jurisdiction

to adjudicate claims for damages against the United States "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 . . . ."

(b).

The FTCA's waiver of immunity is limited, however, by

several statutory exceptions. One of these is the discretionary

function exception, which preserves the government's immunity

from "[a]ny 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."

(a); see Attallah,

. 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 (Variq Airlines), 4

, 808 (1984). If the discretionary function exception

applies to a particular claim, then the district court lacks

subject matter jurisdiction to hear that claim. See Magee, 121

5 F .3d at 3.

To analyze whether the discretionary function exception

applies to a certain claim, the court must examine whether the

conduct challenged by that claim is "'of the nature and quality

that Congress intended to shield from tort liability.'" Irving

v. United States,

(1st Cir. 1998) (en banc)

(quoting Variq Airlines, 467 U.S. at 813), cert, denied,

(U.S. Oct. 4, 1999). The United States Supreme Court has

created a two-step process to guide courts through this inquiry.

See United States v. Gaubert,

(1991);

Berkovitz v. United States,

(1988); Shanskv v.

United States,

(1st Cir. 1999). The first

step is to identify the conduct that caused the plaintiff's harm

and determine whether that conduct is discretionary. See

Shanskv,

; Irving,

. The second

step is to determine whether "the exercise of discretion involves

(or, at least, is susceptible to) policy-related judgments."

A. Is the conduct at issue discretionary?

The discretionary function exception applies to "actions

that are discretionary in nature, acts that 'involve an element

of judgment or choice.'" Gaubert,

(quoting

Berkovitz,

). The nature of the conduct controls

6 the inquiry, not the status of the actor. Gaubert,

. "[W]hen a federal statute, regulation, or policy

specifically prescribes a course of action for an employee to

follow . . . the employee has no rightful option but to adhere to

the directive," and his conduct is not discretionary. Berkovitz,

. But if no such mandatory rule prescribes the

employee's actions, and he is free to decide what course of

action he will take in a given situation, then his conduct is

discretionary. See, e.g., Shanskv,

(absence

of mandatory policy meant employee's conduct was discretionary);

Magee,

(absence of particularized course of conduct

left discretion to employees).

The conduct at issue in this case is Ranger Neely's

instruction to Dwyer to leave the alpine zone and his decision

not to allow her to spend the night in the Lakes of the Clouds

Hut. Dwyer alleges that Neely's actions were not discretionary

because he was bound by a mandatory Forest Service policy that

required him, under certain circumstances, to offer use of the

hut to hikers. Dwyer claims that by ordering her down the

mountain and refusing to offer her the use of the hut, Neely

violated this mandatory policy, and consequently his decision was

not discretionary.

To support her contention that Neely was bound by mandatory

7 Forest Service policy, she points to declarations by Neely;

Bradley Ray, Lead Snow Ranger for the Forest; and Kai-Uwe Allen,

District Backcountry/Wilderness Supervisor for the Forest. These

declarations fail to provide the support Dwyer seeks. Neely's

declaration indicates that the rangers can allow people to stay

in the hut, but not that the rangers are under any mandatory

directive to offer the hut's use, even when an emergency exists.1

Neither does Ray's declaration provide any evidence that a

mandatory policy exists concerning the use of the hut in

emergency situations.2 The strongest language in support of

Dwyer's position comes from Allen, who states that rangers are

"expected" to consider various factors in deciding whether to

2Ranger Neely stated in his declaration:

When encountering individuals above the treeline, it is always an option for me to allow them to stay in the refuge room [in the basement of the hut]. . . . we strictly limit the availability of the refuge room to what we judge to be emergency situations, such as severe weather, ill-prepared or obviously exhausted hikers who would be at significant risk if directed to keep hiking, and unusually slippery trail conditions . . . This also was a decision fully within my discretion under Forest Service policies and regulations.

2The court does not express an opinion as to whether the conditions present at the time of Dwyer's encounter with Ranger Neely, or at the time of her accident, constitute an emergency under any standard.

8 order someone off the alpine vegetation, and that the rangers

"would" order someone to move unless conditions were sufficiently

severe to warrant use of the hut. However, Allen specifically

states in a supplementary declaration that no mandatory rule

existed that instructed rangers to take any particular course of

action when confronting campers in the alpine zone. Indeed, all

of the declarations state uneguivocally that rangers exercise

discretion in their efforts to advance Forest Service goals.

Even if the declarations provided Dwyer with better support

for her position, the First Circuit has made clear that written

statutes, policies and regulations carry the greatest weight when

determining whether a course of action is discretionary or

prescribed. See Irving,

. While "recognizing

that informal sources sometimes may assist courts in deciding

whether a function is discretionary," the First Circuit has said

that where written regulations clearly indicate that conduct is

discretionary, "there is no occasion to consult informal rules."

. Relying on anecdotal testimony to discern the nature

of agency policy "is usually a last-ditch resort."

.

Dwyer relies entirely on the declarations discussed above to

support her claim that a mandatory policy existed which

prescribed Neely's course of action. She has not cited any of

the written statutes, regulations, policy manuals or handbooks pertinent to this case. Furthermore, upon review of the record,

the court does not find adequate support for a mandatory policy.

Therefore, the court cannot reasonably infer that Ranger Neely's

actions violated a mandatory Forest Service policy.

B. Does the discretionary conduct involve, or is it susceptible

to, policy-related judgments?

For the discretionary function exception to apply, the

conduct must be discretionary and it must involve, or be

susceptible to, policy-related judgments. See Shanskv,

; Irving,

. There is a presumption that

when a statute, regulation, or agency guidelines allow an

employee to exercise discretion, if the employee does exercise

discretion, his actions are grounded in policy considerations.

See Gaubert,

; Irving,

.

Therefore, to prevail on this point, Dwyer must overcome the

Gaubert presumption by showing that Neely's actions were not

susceptible to policy analysis. See Shanskv,

;

Irving,

.

Dwyer cites cases holding that a violation of a previously

adopted safety policy falls outside of the discretion Congress

intended to shield from liability. See Summers v. United States,

(9th Cir. 1990); Mandel v. United States,

(8th Cir. 1986). But unlike those cases, there is

insufficient evidence here that there was a previously adopted

safety policy concerning the management of hikers in the alpine

zone.3 See Aslakson v. United States,

(8th

Cir. 1986) (noting the difference between a decision involving

"safety considerations under an established policy rather than

the balancing of competing policy considerations"). To the

contrary, the evidence indicates that the Forest Service and its

rangers routinely balance safety interests with other interests,

including public access to the Forest and preservation of the

Forest's natural resources. In the absence of a specific.

3Ihis distinction is illustrated in Mandel, where a National Park Service Ranger directed the plaintiff to swim in a river and the plaintiff subseguently dove into the water and was injured. See Mandel,

. The Eighth Circuit held that the discretionary function exception did not apply because the Park Service had taken specific precautions to warn swimmers about submerged rocks in the river, and the ranger failed to provide the plaintiff with a similar warning. See id. at 967-68. Compare Tippett v. United States,

(10th Cir. 1997), where a National Park Ranger directed the plaintiff to drive his snowmobile past a moose, resulting in an encounter with the moose that left the plaintiff injured. See

. The Tenth Circuit held that the discretionary function exception applied because there was no established safety policy governing the situation, and because the plaintiffs did not allege any facts indicating that the ranger's decision was not grounded in policy. See

. In both cases, a ranger directed someone into a dangerous situation, and may well have done so negligently. However, the discretionary function exception analysis reguired different outcomes.

11 established safety policy, the First Circuit has rejected a

general "safety exception" to the discretionary function. See

Shanskv,

. To remove decisions concerning safety

from the Forest Service's discretion would ignore the fact that

safety, as important as it is, conflicts with other important

concerns that greatly affect the experience of people who visit

the National Forests.

Dwyer also argues that the relevant legal issue is whether

Neely, in deciding to order Dwyer out of the alpine zone,

furthered the Forest Service's policy of protecting alpine

vegetation. However, this is an incorrect interpretation of the

law. It is irrelevant whether Neely actually engaged in policy

analysis when he made his decision to order Dwyer out of the

alpine zone, or whether his decision furthered the policy goals

of the Forest Service. Shanskv,

; Irving,

. The proper inguiry is whether Neely's decision was

informed by public policy considerations. See

Dwyer's

argument fails to adeguately address this issue, and therefore

fails to overcome the Gaubert presumption. See Irving,

.

In sum, Neely's decision to direct Dwyer out of the alpine

zone was discretionary, and it was susceptible to policy-related

judgments. Therefore, the discretionary function exception to

12 the Federal Tort Claims Act applies to Dwyer's third claim,

depriving this court of subject matter jurisdiction to hear the

claim.

C. Motion to Amend Complaint

Dwyer moves for leave to amend her complaint pursuant to

Federal Rule of Civil Procedure 15(a). Dwyer's proposed

amendment would add a statement to her complaint alleging that

Ranger Neely violated a Forest Service rule which mandates "the

use of emergency shelters under such dangerous conditions."

Rule 1 5 (a) encourages the court to grant leave to amend when

justice reguires it. Fed. R. Civ. P. 15(a). The court should

deny leave to amend, however, if the proposed amendment would be

futile. See Resolution Trust Corp. v. Gold,

(1st Cir. 1994); Correa-Martinez v. Arrillaqa-Belendez,

(1st Cir. 1990). The standard for futility generally is

whether the complaint as amended would survive a motion to

dismiss under Rule 1 2 (b)(6). See Classman v. Computervision

Corp.,

(1st Cir. 1996) . But when the defendant

has already moved for summary judgment and the plaintiff moves to

amend, the plaintiff must show that the proposed amendments are

supported by substantial and convincing evidence. See

.

13 Dwyer moved to amend her complaint after the United States

moved for dismissal or, in the alternative, for summary judgment.

Therefore, she must show that her proposed amendment is supported

by substantial and convincing evidence. As the court has already

discussed, Dwyer has failed to show sufficient evidence to infer

that a mandatory rule existed concerning usage of the hut.4

Moreover, Dwyer's complaint already alleges that Neely "failed to

follow all applicable policies, rules and regulations in the

performance of his duties," and the parties have addressed this

issue in their filings. Therefore, the court finds that the

proposed amendment is futile.

Conclusion

For the foregoing reasons, the defendant's motion to dismiss

(document no. 3) is granted. The plaintiff's motion to amend her

4The standard for drawing inferences in favor of the plaintiff is essentially the same under Rules 12(b) (1) and 12(b)(6). See Murphy,

. The court has explained above why Dwyer's claim fails under this standard. Therefore, her motion to amend would be denied even by the general standard for futility, let alone the higher Gold standard applicable after a motion for summary judgment has been filed.

14 complaint (document no. 7) is denied. The clerk shall enter

judgment and close the case.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

November 17, 1999

cc: Eugene A. DiMariano Jr., Esguire Gretchen Leah Witt, Esguire

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