No. 97-2028
In the Supreme Court of the United States
OCTOBER TERM, 1997
TRAVELERS INDEMNITY COMPANY OF ILLINOIS, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
FRANK W. HUNGER
Assistant Attorney General
MARK B. STERN
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 of the United States Army
Corps of Engineers to await the results of a technological study before
raising the height of a breakwater.
In the Supreme Court of the United States
OCTOBER TERM, 1997
No. 97-2028
TRAVELERS INDEMNITY COMPANY OF ILLINOIS, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The memorandum opinion of the court of appeals (Pet. App. 1a-2a) is unreported.
The opinion of the district court (Pet. App. 19a-27a) is also unreported.
JURISDICTION
The judgment of the court of appeals was entered on November 17, 1997. A
petition for rehearing was denied on March 19, 1998. Pet. App. 28a. The
petition for a writ of certiorari was filed on June 16, 1998. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. In 1950, Congress authorized the expansion and improvement of an existing
breakwater at what is now known as King Harbor in Redondo Beach, California.
River and Harbor Act of 1950, ch. 516, § 101, 64 Stat. 166. The United
States Army Corps of Engineers (Corps) prepared a detailed plan for the
breakwater improvement, indicating that the breakwater's crest should be
raised to 14 feet above a specified water level. Pet. App. 20a. The project
was completed in 1958. Id. at 21a. Because the breakwater was not as effective
in aiding navigation as had been hoped, however, the Corps undertook a second
project, completed in 1964, to raise parts of the breakwater from 14 to
22 feet over the specified water level. Ibid.
In 1980 and 1983, storms caused significant damage at King Harbor. Pet.
App. 5a. As a result, the Corps began studying the possibility of increasing
the remaining 14 foot portions of the breakwater to 22 feet. Ibid. During
this period, the Corps discovered that, as a result of subsidence, some
breakwater sections were only 12 feet high and not 14 feet as intended.
Ibid. The Corps thus needed to choose whether and how to proceed with future
breakwater construction. It decided not to return the relevant portions
of the breakwater to a height of 14 feet-a task that, in itself, would have
been a "major, not a trivial, engineering project" (id. at 6a)-but
to continue the ongoing study for raising the breakwater to 22 feet. Ibid.
In other words, the Corps elected to "put off the smaller improvement
* * * while it studied a much larger improvement." Id. at 9a.
In 1988, an extraordinary storm-"the kind that hits Redondo Beach only
once every sixty or seventy years" (Pet. App. 6a)-caused substantial
damage to several business establishments built on erected mounds of land
("moles") in the interior of the harbor. The damaged establishments
included the Portofino Inn and Reuben's Restaurant. Id. at 6a, 20a, 24a.
2. This lawsuit was filed by petitioner, an insurance company, against the
United States for damages sustained by the Portofino Inn. The suit was brought
under the Federal Tort Claims Act (FTCA or Act), 28 U.S.C. 2671 et seq.
The Act provides that, as a general matter, "[t]he United States shall
be liable, respecting the provisions of this title relating to tort claims,
in the same manner and to the same extent as a private individual under
like circumstances[.]" 28 U.S.C. 2674. The Act's "discretionary
function exception," however, preserves the United States' immunity
from suit for "[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." 28 U.S.C. 2680(a). The district
court entered judgment in favor of petitioner, finding, among other things,
that the Corps had acted negligently in its handling of the breakwater (Pet.
App. 23a-24a), and that the discretionary function exception was inapplicable
(id. at 26a).
After the district court issued that ruling, the court of appeals decided
a parallel case involving claims against the United States for damage to
Reuben's Restaurant during the same storm. National Union Fire Ins. v. United
States, 115 F.3d 1415 (9th Cir. 1997) (reprinted at Pet. App. 3a-18a), cert.
denied, 118 S. Ct. 1053 (1998). In that case, the Ninth Circuit held that
the discretionary function exception does preserve the United States' immunity
from suit for the matters at issue here. The court held that "[t]he
Corps had statutory discretion," that "there was no regulation
or policy requiring the Corps to monitor the breakwater height," that
the Corps' judgments concerning the breakwater were "based on considerations
of public policy," and that "where a statute or policy plainly
requires the government to balance expense against other desiderata, then
considering the cost of greater safety is a discretionary function."
Pet. App. 16a-17a. This Court denied certiorari. 118 S. Ct. 1053 (1998).
On November 20, 1997, in an unpublished memorandum decision, the court of
appeals reversed the district court's decision in the present case in light
of its earlier holding in National Union. Pet. App. 1a-2a.
ARGUMENT
This Court recently denied certiorari in National Union, 118 S. Ct. 1053
(1998), a case arising from the same underlying facts as this one and involving
issues substantially identical to those presented here. The court of appeals'
factbound ruling in this case is no more worthy of this Court's review.
The governmental actions in question were fundamentally discretionary in
character. The Corps decided that it would be inappropriate to deal with
the problem of subsidence by engaging in costly efforts to add two feet
to the relevant portions of the breakwater. Instead, balancing several statutory
factors (see Pet. App. 9a-10a), the Corps elected to deal with the subsidence
problem as part of a larger construction effort to make much more substantial
improvements to the breakwater as a whole. Id. at 15a. As the court of appeals
held in National Union, that exercise of discretion is precisely the kind
of governmental judgment that the discretionary function exception protects
from judicial second-guessing. Id. at 15a-17a.
Petitioner nonetheless contends (Pet. 11-12) that the Corps' decision here
should be characterized as an "operational decision" rather than
a "planning-level decision," and suggests that only "planning-level
decisions" fall within the scope of the discretionary function exception.
Whether or not petitioner's characterization of this particular decision
is correct,1 petitioner's proposed distinction between "operational"
and "planning-level" decisions is without merit. As this Court
has repeatedly emphasized, "[d]iscretionary conduct is not confined
to the * * * planning level," and the discretionary function exception
"reach[es] decisions made at the operational or management level"
as well. United States v. Gaubert, 499 U.S. 315, 325 (1991) (distinguishing
Dalehite v. United States, 346 U.S. 15 (1953)); see also United States v.
Varig Airlines, 467 U.S. 797 (1984). There is also no merit to petitioner's
contention (Pet. 10-13) that the decision below conflicts with other decisions
of the same court of appeals. This Court does not grant certiorari to resolve
claims of intracircuit conflicts, see Wisniewski v. United States, 353 U.S.
901, 902 (1957), and, in any event, the court of appeals correctly determined
that the decision below is fully consistent with other Ninth Circuit precedent.
Pet. App. 15a-17a.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
FRANK W. HUNGER
Assistant Attorney General
MARK B. STERN
WILLIAM G. COLE
Attorneys
AUGUST 1998
1 Petitioner's characterization of the decision as "operational"
rests on the premise that the Corps had a policy requiring it to monitor
the breakwater height and assure that it continued to conform to its design
specifications. See Pet. 13. But the court of appeals found to the contrary
in National Union, Pet. App. 16a, and petitioner's disagreement with that
finding of fact does not warrant further review.