Agency's failure to maintain irrigation system does not fall under discretionary function exception to FTCA

Law Reporter, Oct 2002

O'Toole v. United States, 295 F.3d 1029 (9th Cir. 2002).

The Ninth Circuit Court of Appeals held that the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671 et seq., does not apply to an agency's failure to maintain an irrigation system that later caused property damage to private landowners.

Here, a couple sued the federal government, alleging an agency's negligent maintenance of an irrigation system caused a river to flood their land. Defendant argued that, because the agency's failure to maintain the irrigation system was the result of a policy decision involving allocation of resources, its actions fell within the discretionary function exception to the FTCA. The trial court dismissed the case.

Reversing, the Ninth Circuit noted that the exception precludes liability for any act or omission of a government employee based on a discretionary function. To determine whether the exception applies, a court must first decide if a federal statute or policy specifically prescribes a course of action that was not followed. If so, the court said, the agency's actions are not discretionary because there can be no exercise of discretion where an agency has no rightful option but to obey a directive.

The court further explained that, if plaintiffs do not succeed under the first factor, they can still prevail by showing the government's conduct was not of the nature that Congress intended to shield from liability. Government actions involving the exercise of judgment or choice, the court explained, are exempt from suit if they are susceptible to policy analysis and involve a decision grounded in social, economic, and political policy.

Applying the first part of the test, the court found that there is no statute or regulation mandating adequate maintenance of the irrigation system. The court also noted that federal regulations provide that the maintenance of certain projects is subject to the availability of finds. Thus, because defendant did not deviate from actions mandated by statute or policy, defendant is protected under the first part of the test.

Turning to the second part, the court found that an agency's decision to ignore the routine maintenance of its property for financial reasons is not the type of policy decision that the discretionary function exception protects. Citing the U.S. Supreme Court, the court explained that Congress, in passing the FTCA, sought to prevent the unfairness of allowing the public as a whole to benefit from federal services while allocating the burden of federal employee negligence to individuals. To apply the discretionary finction exception to the agency's alleged negligence would unfairly allocate the resulting harm to plaintiffs. The agency was under no obligation to obtain the irrigation system, the court explained. Once it did, however, it acquired the duty, to the same extent as a private landowner, of keeping the system from causing harm to others.

Accordingly, the court remanded.

Plaintiffs' Counsel

Stewart RL Wilson, Elko, Nev.