Rosemary Weissich Jill Elaine Weissich v. United States of America

4 F.3d 810, 93 Daily Journal DAR 11638, 93 Cal. Daily Op. Serv. 6797, 1993 U.S. App. LEXIS 23109, 1993 WL 341100
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 10, 1993
Docket92-15411
StatusPublished
Cited by36 cases

This text of 4 F.3d 810 (Rosemary Weissich Jill Elaine Weissich v. United States of America) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosemary Weissich Jill Elaine Weissich v. United States of America, 4 F.3d 810, 93 Daily Journal DAR 11638, 93 Cal. Daily Op. Serv. 6797, 1993 U.S. App. LEXIS 23109, 1993 WL 341100 (9th Cir. 1993).

Opinion

DAVID R. THOMPSON, Circuit Judge:

OVERVIEW

In their complaint filed in the district court, Rosemary Weissieh and her three children (“the Weissichs”) asserted two claims against the United States. First; they alleged that the Bureau of Alcohol, Tobacco and Firearms (“ATF”) and the United States Probation Service (“USPS”) negligently failed to warn William Weissieh of an impending threat posed by Malcolm Schlette, a federal probationer. Second, they alleged that the USPS negligently supervised Schlette. The district court granted summary judgment in favor of the government on both claims and dismissed the action. The Weissichs appeal. We affirm. We do so, however, on the ground that the discretionary function exception of the Federal Tort Claims Act (“FTCA”) bars the Weis-sichs’ suit against the United States.

FACTS

In 1955, the Marin County District Attorney, William Weissieh, prosecuted Malcolm Schlette. Schlette was convicted of arson and sentenced to twenty years in prison. He threatened to retaliate by killing the district attorney, the judge, the jurors, all witnesses, and the police officers involved in his conviction. In 1966, Schlette was released on state parole. Authorities discovered that he planned to carry out his prior threats and returned him to prison to serve the remainder of his twenty-year term. In 1975, Schlette completed his full term and was released without supervision.

In 1983, he was arrested by the ATF. He pleaded guilty to being a felon in possession of firearms and was placed on federal probation for five years. In 1986, while on probation, Schlette shot and killed William Weis-sich.

DISCUSSION

We review a grant of summary judgment de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 629 (9th Cir.1987). We may affirm a summary judgment on any ground supported by the record. Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957). A district court’s determination of subject matter jurisdiction under the discretionary function exception of the FTCA is reviewed de novo. Mitchell v. United States, 787 F.2d 466, 468 (9th Cir.1986), cert. denied, 484 U.S. 856, 108 S.Ct. 163, 98 L.Ed.2d 118 (1987).

The FTCA authorizes suits against the United States for negligent performance of governmental functions. 28 U.S.C. § 1346(b) (1988). The Act, however, is subject to certain exceptions. One exception is the discretionary function exception set forth in section 2680(a):

The provisions of this chapter shall not apply to any claim based on 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 of performance or 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).

To determine whether the discretionary function exception applies, we look to the nature of the alleged negligent conduct. United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2761-62, 81 L.Ed.2d 660 (1984). All decisions implementing a discretionary decision are not necessarily protected, but only those choices grounded in social, economic and political policy. Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988).

*813 The discretionary function exception does not apply when a federal statute, regulation or policy specifically prescribes a course of action for a government employee to follow. United States v. Gaubert, 499 U.S. 315, -, 111 S.Ct. 1267, 1277, 113 L.Ed.2d 335 (1991). In Gaubert, the Court concluded that certain agency action was discretionary because there were no formal regulations governing the conduct in question. Here, the Weissichs have identified no federal statute, regulation or policy mandating that ATF officers warn potential victims. Consistent with the analysis in Gaubert, we conclude that the decision whether to warn William Weissich was a matter of discretionary choice for the agency.

This choice implicated policy concerns. These concerns include how much of the agency’s resources it should commit to identifying victims, what standard it should adopt to determine which potential victims to notify, and how it should go about notifying them. An analysis of these concerns would likely include consideration of budgetary constraints as well as time and personnel limitations.

It is not necessary for the government to prove a conscious decision based on a policy analysis. Kennewick Irr. Dist. v. United States, 880 F.2d 1018, 1028 (9th. Cir.1989). It is enough that the choice is one. to which a policy analysis may apply. Id. Here, it is. Accordingly, the ATF is shielded by the discretionary function exception of the FTCA from any negligence in failing to warn William Weissich of the danger Schlette posed to him. See Mitchell v. United States, 787 F.2d 466, 468 (9th Cir.1986), cert. denied, 484 U.S. 856, 108 S.Ct. 163, 98 L.Ed.2d 118 (1987) (The FTCA exempts discretionary functions “whether or not the discretion involved be abused.”).

The Weissichs contend that the failure to warn was not a matter of choice for the probation officers. They contend that the USPS guidelines impose a mandatory duty on probation officers to warn a foreseeable victim of a risk of harm imposed' by probationers. The guidelines provide:

Probation officers have an obligation to protect the public, as well as promote the •rehabilitation of the probationer. In meeting these dual obligations, the probation officer has a duty to warn specific third parties of a particular prospect of harm, physical or financial, which the officer “reasonably foresees” the probationer may pose to them. The obligation exists whether or not the third party has solicited the information.
(1) The circumstances of all persons under probation supervision should be renewed periodically to determine whether they might pose a reasonably foreseeable danger to a third person.

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4 F.3d 810, 93 Daily Journal DAR 11638, 93 Cal. Daily Op. Serv. 6797, 1993 U.S. App. LEXIS 23109, 1993 WL 341100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosemary-weissich-jill-elaine-weissich-v-united-states-of-america-ca9-1993.