APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge.
Alan S. Zwiebel, with whom Jonathan Fairbanks and Zwiebel & Fairbanks, L.L.P. were on brief, for appellant.
Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before Lynch, Chief Judge, Torruella and Thompson, Circuit Judges.
THOMPSON, Circuit Judge.
Setting the Stage
Today's case takes us to the Charlestown Navy Yard in Charlestown, Massachusetts. Established in 1800, the Yard is now a national historic site where one can see the USS CONSTITUTION (the 216-year-old frigate famously nicknamed " Old Ironsides" ) and the Commandant's House (a 19th-century mansion built for the Yard's first commandant), among other celebrated attractions. Overseeing the Yard is the Boston Historical Park Service, a unit of the Interior Department's National Park Service (" Boston Park" and the " Service," for short). Anyone can rent the Commandant's House for weddings and such, thanks in part to Boston Park's contracting with Eastern National to manage the House and Eastern National's contracting with Amelia Occasions to handle the events. Rental fees are not exactly cheap, running in the $3,500 neighborhood. And under the agreements, Amelia Occasions gets to keep 80% of any fee, while Boston Park and Eastern National get to split the rest.
An altogether tragic event at the Yard triggered a lawsuit that is the focus of this appeal. Attending a wedding reception at the Commandant's House, Michael Mahon fell from a second-story portico. His resulting injuries left him a quadriplegic. Convinced that he had fallen because of the portico's (supposedly) dangerously-low railings, Mahon sued the government on this theory, relying on the Federal Tort Claims Act (" FTCA," to save some keystrokes). See 28 U.S.C. § § 1346(b), 2671-2680.
For those unacquainted with the mysteries of the FTCA, this statute waives the government's sovereign immunity for certain torts committed by its employees in the scope of their employment.
See id. § 1346(b). Of course there are exceptions. See id. § 2680. And if one applies, the government gets its immunity back, meaning it need not answer the claim in court because (to use a little legalese) there is no subject-matter jurisdiction.
See, e.g., Muniz-Rivera v. United States, 326 F.3d 8, 12 (1st Cir. 2003). The exception most relevant here bars claims " 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." See 28 U.S.C. § 2680(a). This is what is called (commonsensically enough)
the discretionary-function exception.
See, e.g., Muniz-Rivera, 326 F.3d at 14-15.
Invoking that exception, the government moved early on to dismiss Mahon's case for lack of subject-matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). Mahon then amended his complaint, see Fed.R.Civ.P. 15(a)(1)(B), adding claims against Eastern National and Amelia Occasions. The government reasserted its motion. And Mahon in turn opposed -- but to no avail, as the district judge granted the government's dismissal request.
Believing the judge got it wrong, Mahon moved for reconsideration, see Fed.R.Civ.P. 59(e), 60(b), arguing that the agreements involving Boston Park, Eastern National, and Amelia Occasions were " concession contracts."  And, he added, the Service's policy manual (entitled " Management Policies" ) declares in section 10.2.4.8 that concession contracts require concessioners to prepare risk-management programs that jibe with the Occupational Safety and Health Act of 1970 (" OSHA," from now on) -- programs that the park " superintendent" has to approve. All of this meant, according to Mahon, that Eastern National and Amelia Occasions had to conduct risk-management assessments. Neither did, he said. But had they done so, he added, Boston Park would have learned about the portico's " impermissibly low railing," giving it a nondiscretionary duty to fix the problem and thus placing his case beyond the discretionary-function exception's reach. The judge granted Mahon's motion, vacating the ...