No. 97-2077
In the Supreme Court of
the United States
OCTOBER TERM, 1997
ELLEN R. HIBBLE, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
ROBERT S. GREENSPAN
WILLIAM G. COLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the discretionary
function exception to the Federal Tort Claims Act, 28 U.S.C. 2680(a), applies
to a decision not to repair or to warn visitors about deterioration of
a historic walkway at Arlington National Cemetery.
In the Supreme Court of the
United States
OCTOBER TERM, 1997
No. 97-2077
ELLEN R. HIBBLE, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
IN OPPOSITION
OPINIONS BELOW
The opinion of the court
of appeals (Pet. App. A 1-6) is unpublished, but the judgment is noted
at 133 F.3d 915 (Table). The opinion of the district court (Pet. App. B
1-3) is unreported.
JURISDICTION
The court of appeals entered
its judgment on January 7, 1998. A petition for rehearing was denied on
March 27, 1998. Pet. App. C. The petition for a writ of certiorari was
filed on June 24, 1998. The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).
STATEMENT
1. The Federal Tort Claims
Act (FTCA), 28 U.S.C. 1346(b), 2671, et seq., waives federal sovereign
immunity for specified tort claims against officers and agencies of the
United States. Congress excepted from this waiver claims arising from federal
officials' performance of discretionary functions. Section 2680(a) of Title
28 exempts from suit [a]ny claim based upon an act or omission of an employee
of the Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.
2. a. Congress has charged the Secretary of the Army with the development
and operation of Arlington National Cemetery. 24 U.S.C. 278 (1970).1 Army
Regulation 290-5 establishes the authority and assigns responsibility for
operation of the Cemetery. See Army Reg. 290-5 (Sept. 1, 1980) (reproduced
at C.A.J.A. 83-102). The Regulation directs that the Cemetery be
established as a "permanent national shrine[ ] provided by a grateful nation
to the honored dead of the Armed Forces of the United States." Id. at 91.
The Regulation further instructs that the "standards for construction,
maintenance, and operation of [the Cemetery] will be commensurate with
the high purpose to which [it is] dedicated." Ibid. b. Army Pamphlet 290-5
(Pamphlet) outlines administrative and maintenance goals for the Cemetery.
Dep't of the Army Pamphlet 290-5, Administration, Operation, and Maintenance
of Army Cemeteries (May 1, 1991) (reproduced at C.A.J.A. 118-170). The
Pamphlet "serves as a guide to aid in discharging duties for the accomplishment
of the overall Army cemetery mission" and as a "source of reference" for
administrative policies and procedures. C.A.J.A. 121; see also Pet. App.
A 4. Army Regulation 25-30 additionally provides that Army pamphlets are
not the type of "publications that will be used to issue departmental policy."
Army Reg. 25-30, ch. 2, § 1, 2-2 (March 27, 1989) (reproduced at C.A.J.A.
401). Section 5-4 of the Pamphlet addresses the maintenance of roads, drives,
walks, and drains. Pet. App. B 1; Pet. 3; C.A.J.A. 135. It states that
Cemetery walks must not present a "hazard" to pedestrians. Pet. 3; C.A.J.A.
135. The Pamphlet does not define what constitutes a "hazard," nor does
it specify how or when Cemetery employees must respond to hazards that
develop. Ibid.; Pet. App. B 2. The Pamphlet provides only that, "[i]f immediate
repairs cannot be made, barriers will be erected or other steps taken to
prevent accidents." Pet. 3; C.A.J.A. 135. Section 5-4(g) permits, but does
not require, the posting of signs warning of hazards. Ibid. c. The Custis
Walk, which provides the primary route of pedestrian access between the
cemetery entrance and the Custis-Lee Mansion, is a pathway of special historical
significance within the Cemetery. The Walk was constructed in 1879 to track
Robert E. Lee's historic path as he departed the Custis-Lee mansion for
the last time en route to Richmond, Virginia, the Confederate Capital.
C.A.J.A. 22, 40; see also id. at 31, 41 (discussing historical and architectural
value of the Custis Walk). 3. During a visit to family grave sites
at Arlington National Cemetery, petitioner fell while descending a series
of steps on the Custis Walk. Pet. App. A 2. Petitioner fractured both ankles
and her right leg, and is permanently disabled as a result. Pet. App. B
1. The area of the Custis Walk where petitioner fell was covered with leaves,
which concealed broken concrete and stones that had broken off from the
walkway. Pet. App. A 2. No signs or barriers warned the public of the potential
hazard. Ibid. 4. After exhausting her administrative remedies with the
Army, petitioner filed suit under the Federal Tort Claims Act. Pet. App.
A 2; C.A.J.A. 11 (Complaint). The government moved for dismissal, arguing
that the action was barred by the discretionary function exception to the
FTCA, 28 U.S.C. 2680(a). The district court granted the government's
motion and dismissed the case. Pet. App. B 1-3. The district court held
that no federal statute, regulation, or policy specifically prescribed
a
course of action at the
Cemetery regarding maintenance of the Custis Walk, thus leaving that matter
to the Army's discretion. The Pamphlet failed to define a "hazard" to the
public, to identify when warning signs were "necessary," or to prescribe
how "hazards" would be alleviated once identified. Id. at B 2. The district
court further found that the Army's discretionary decisions involving the
Custis Walk were based on considerations of public policy. Pet. App. B
3 ("Decisions regarding when to remove leaves, repair steps and post signs
require considering factors such as safety, aesthetics and available financial
resources."). 5. The court of appeals affirmed. Pet. App. A 1-6. The court
of appeals agreed with the district court that the Pamphlet did not mandate
specific actions or responses to the deterioration of the Custis Walk,
leaving the matter within the discretion of cemetery officials. Id. at
A 4. The court of appeals further agreed that decisions about leaf removal,
maintenance of grounds and walkways, posting of warning signs, and closure
of portions of the Cemetery were "inextricably tied to a variety of public
policy considerations-including balancing public access with public safety,
historical and cultural preservation, fostering a somber and reflective
atmosphere, and conserving natural as well as fiscal resources." Ibid.2
ARGUMENT
The unpublished decision
of the court of appeals is correct and does not conflict with the decisions
of this Court or of any other court of appeals. Petitioner's claim seeks
review only of how two courts consistently applied the correct legal test
to the specific facts of her case. That claim does not merit this Court's
review. 1. The decision of the court of appeals is consistent with
the rulings of this Court. Both the district court and the court of appeals
applied the two-prong test for identifying discretionary functions established
by this Court's decisions in United States v. Gaubert, 499 U.S. 315 (1991),
and Berkovitz v. United States, 486 U.S. 531 (1988). See Pet. App. A 3-4,
B 2-3. Further, as required by that test (Gaubert, 499 U.S. at 324-325;
Berkovitz, 486 U.S. at 544-545), both courts found that decisions regarding
the maintenance and repair of the Custis Walk (1) were not dictated by
statute or regulation, but instead involved elements of judgment and choice,
and (2) the discretionary decision-making reflected or was susceptible
to public policy considerations. Pet. App. A, B 2-3. Petitioner agrees
(Pet. 7) that the correct legal test was applied, but disagrees with the
outcome (Pet. 7-12). That claim presents no question of broad or enduring
importance; it seeks only the correction of alleged error, which does not
customarily warrant this Court's review. See Sumner v. Mata, 449 U.S. 539,
543 (1981). Pure error review is particularly unjustified where, as here,
the district court and the court of appeals both agreed in their assessment
of the record and their application of the proper legal standard to it.
See Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275
(1949), adhered to on reh'g, 339 U.S. 605 (1950); see also Exxon Co., U.S.A.
v. Sofec, Inc., 517 U.S. 830, 841 (1996). Petitioner also seeks this Court's
review (Pet. 8-9) of the court of appeals' determination that the Pamphlet
left discretion in cemetery officials regarding the posting of warning
signs along the Custis Walk. Whether the Pamphlet constitutes a mandatory
directive for purposes of the first prong of the Berkovitz/Gaubert test,
however, is a question of fact that was determined against petitioner by
both the district court and the court of appeals. Pet. App. A 4, B 2-3.
This Court "do[es] not grant a certiorari to review evidence and discuss
specific facts." United States v. Johnston, 268 U.S. 220, 227 (1925).
In any event, both courts correctly recognized that the Pamphlet fails
to state how or when Cemetery employees must remove or repair hazards on
walkways, or when a "hazard" will be held
to have arisen. The Pamphlet,
moreover, explicitly states that it is merely a guide. See Cope v. Scott,
45 F.3d 445, 451 (D.C. Cir. 1995) (manual that operates as guidebook preserves
discretion in government officials). Army Regulation 25-30 further explains
that such pamphlets are not among those publications that are used to issue
departmental policy. Pet. App. A 4; C.A.J.A. 401. While the Pamphlet establishes
as one of its goals the protection of the public, it also leaves cemetery
officials with discretion to decide when protective measures are necessary
and what steps should be taken consistent with the solemn purpose and memorial
atmosphere of the cemetery. It is precisely in such situations that this
Court has held the discretionary function exception applicable. E.g., Gaubert,
499 U.S. at 325-326. 2. Petitioner contends (Pet. 6, 10-12) that the determination
that the cemetery officials' failure to post warning signs was based on
public policy coniderations conflicts with the decisions of four other
circuits in failure-to-warn cases. None of the cases petitioner cites,
however, established a broad rule limiting the discretionary function exception
in failure-to-warn cases. Rather, each decision reflects the highly fact-
and context-specific nature of discretionary function determinations. As
a result, other failure-to-warn cases from those same circuits have found
the discretionary function exception applicable and, in particular, have
ruled that public policy considerations can underlie a decision not to
erect warning signs. Compare Faber v. United States, 56 F.3d 1122, 1123,
1126-1128 ( 9th Cir. 1995) (where other warning signs had already been
erected at site and relevant rules left the agency no discretion, discretionary
function exception inapplicable to failure-to-warn claim); Cope v. Scott,
45 F.3d 445, 451-452 (D.C. Cir. 1995) (where 23 traffic warning signs were
already posted, failure to warn of slippery road conditions did not fall
within discretionary function exception); Andrulonis v. United States,
952 F.2d 652, 655 (2d Cir. 1991) (failure to warn of laboratory conditions
conducive to transmission of rabies virus not a discretionary function),
cert. denied, 505 U.S. 1204 (1992); and Boyd v. United States, 881 F.2d
895, 898 (10th Cir.1989) (failure to warn swimmers in a popular swimming
area not susceptible to policy analysis), with Valdez v. United States,
56 F.3d 1177, 1180 (9th Cir. 1995) (Park Service decisions regarding maintenance
of park trails, posting of warning signs, and other safety precautions
involve competing policy considerations falling within discretionary function
exception); Childers v. United States, 40 F.3d 973, 976 (9th Cir. 1994)
(decisions regarding the posting of warning signs on Yellowstone National
Park trails based on public policy factors are within discretionary function
exception), cert. denied, 514 U.S. 1095 (1995); Kiehn v. United States,
984 F.2d 1100, 1103-1105 (10th Cir. 1993) (decision not to place warning
signs near petroglyphs at Dinosaur National Monument involved balancing
public policy objectives of resource allocation, visitor safety, and scenic
preservation); Zumwalt v. United States, 928 F.2d 951, 955 (10th Cir. 1991)
(maintenance and placement of warning signs on trail at Pinnacles National
Monument required a balancing of social, economic, and political policies).
As those cases recognize, the proper inquiry is not whether the policy
considerations were "broad" or "unique" (Pet. 6), but whether the discretionary
decision "is grounded in the policy of the regulatory regime." Cope, 45
F.3d at 449; see also Gaubert, 499 U.S. at 323, 325. The cases cited by
petitioner (Pet. 11-12) concern dangerous driving conditions, rabies contamination,
and the zoning of swimming areas, not the management of historic and scenic
walkways within a national park. The policy considerations invoked by the
relevant government officials in the cases petitioner relies upon thus
did not pertain to the underlying regulatory programs. See Faber, 56 F.3d
at 1127 & n.4 (comparing situations where decision to erect warning
signs does and does not implicate relevant public policy considerations);
Cope, 45 F.3d at 452 (aesthetic xonsiderations do not trigger exception
where relevant roadway is managed as a commuter route with no less than
23 traffic control signs already in existence); Andrulonis, 952 F.2d at
655 (government's failure to warn "'cannot be said to be based on the purposes
the regulatory regime seeks to accomplish'") (quoting Gaubert, 499 U.S.
at 324 n.7); Boyd, 881 F.2d at 898.
In the present case, by
contrast, the policy considerations balanced by cemetery officials-maintaining
a somber and reflective atmosphere, ensuring public access, preserving
the history and culture of the cemetery, and conserving natural resources-directly
relate to the overall regulatory mission of establishing and operating
a national shrine dedicated to the country's honored dead. The special
historical significance and role of the Custis Walk magnify the importance
to cemetery officials of weighing aesthetic, atmospheric, and public access
concerns before erecting warning signs. See Cope, 45 F.3d at 452 (for purposes
of discretionary function analysis, posting of warning signs along a commuter
road cannot be compared to "the Grand Canyon's Rim Drive, nor Shenandoah's
Skyline Drive").3 Because the court of appeals' decision is correct and
comports with the rulings of other courts, this Court's review is not warranted.
CONCLUSION
The petition for a writ
of certiorari should be denied. Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
ROBERT S. GREENSPAN
WILLIAM G. COLE
Attorneys
AUGUST 1998
1 While this provision was
repealed by Section 7(a) of the National Cemeteries Act of 1973, Pub. L.
No. 93-43, 87 Stat. 82, Section 7(b) of that Act (87 Stat. 88) provided
that nothing in the repeal would affect in any manner the functions, powers,
and duties of the Secretary of the Army regarding Army national cemeteries.
2 Judge Hamilton agreed that the cemetery officials retained discretion
in dealing with maintenance of the Custis Walk (Pet. App. A 5 n.2), but
disagreed with the application of the discretionary function exception
because the government "was not called upon to make broad policy-based
decisions and no unique circumstances are present," id. at A 6. 3 Even
if a conflict existed between the court of appeals' ruling here and the
decisions of other circuits, it would not be a mature inter-circuit conflict
warranting this Court's review. The court of appeals' opinion is unpublished
and thus does not represent the law of the circuit and has limited precedential
value. See 4th Cir. R. 36(a), (b) & (c).
Page Added: 9 June 2001