FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PHONG LAM, No. 19-16243 Plaintiff-Appellant, D.C. No. v. 3:18-cv-00936-LB UNITED STATES OF AMERICA, Defendant-Appellee. OPINION Appeal from the United States District Court for the Northern District of California Laurel D. Beeler, Magistrate Judge, Presiding Argued and Submitted June 8, 2020 San Francisco, California Filed October 28, 2020 Before: Milan D. Smith, Jr. and Andrew D. Hurwitz, Circuit Judges, and C. Ashley Royal, * District Judge. Opinion by Judge Royal; Concurrence by Judge Royal; Dissent by Judge Hurwitz * The Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia, sitting by designation. 2 LAM V. UNITED STATES SUMMARY ** Federal Tort Claims Act The panel affirmed the district court’s dismissal of a Federal Tort Claims Act (“FTCA”) action alleging that the U.S. Army Corps of Engineers negligently failed to cut down a tree at the Lake Mendocino recreation area that crashed into the plaintiff’s tent and smashed his leg. The FTCA permits private suits against the United States for damages for loss of property, injury, or death caused by a government employee’s negligence. The FTCA’s discretionary function exception (“DFE”) provides that the government does not waive sovereign immunity for tort claims if the alleged tortfeasor was performing a discretionary function or duty when he or she injured the plaintiff. The district court dismissed based on its finding that the FTCA’s DFE defeated plaintiff’s claims. In deciding whether the DFE applied, the panel applied the Berkovitz/Gaubert test: 1) Did the Lake Mendocino policies allow for discretion? and 2) Were those policies susceptible to the policy analysis the DFE was designed to protect? If the answer to both questions is yes, the DFE applies. First, the panel held that because the Lake Mendocino policies had no specific mandatory requirements for maintaining, identifying, or removing dangerous trees, the Lake Mendocino maintenance worker had discretion to act according to his judgment in assessing trees. The panel ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. LAM V. UNITED STATES 3 held further that this discretion satisfied the first part of the Berkovitz/Gaubert test. Second, the panel held that park rangers’ decisions as to tree maintenance were susceptible to policy considerations. The panel concluded that the DFE applied in this case. District Judge Royal concurred, and wrote separately to address the dissent. Judge Hurwitz dissented because the majority’s decision conflicts with the precedent in Kim v. United States, 940 F.3d 484, 487-90 (9th Cir. 2019), which held that governmental immunity does not apply to precisely the governmental decision at issue in this case. He wrote that this case does not call on the court to judge the wisdom of any social, economic, or political policy, but rather simply to perform the familiar role of determining whether the government agent exercised reasonable care. COUNSEL Robert V. Chin (argued), Law Office of Robert V. Chin, San ...
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