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| FindLaw: Laws: Cases and Codes: 9TH CIRCUIT COURT Opinions | |
MICHELLE RENEE SIGMAN, on her behalf and as Guardian Ad Litem for James Douglas Sigman, a minor, and as personal representative of Taylor McKenzie No. 98-35913 Sigman, deceased; JAMES DOUGLAS SIGMAN, a minor; TAYLOR D.C. No. MCKENZIE SIGMAN, deceased, CV-95-00534-JLQ Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellee. LORRAINE T. MURRAY, a single woman, No. 98-35922 Plaintiff-Appellant, D.C. No. v. CV-96-00090-JLQ UNITED STATES OF AMERICA, Defendant-Appellee. HAZEL ROBERTS, wife; HAROLD ROBERTS, husband, No. 98-35935 Plaintiffs-Appellants, D.C. No. v. CV-96-00188-JLQ UNITED STATES OF AMERICA, Defendant-Appellee. 8157 PAULINE BROWN, Plaintiff-Appellant, No. 98-35936 v. D.C. No. CV-96-00347-JLQ UNITED STATES OF AMERICA, Defendant-Appellee. MARILYN MOE, Plaintiff-Appellant, No. 98-35937 v. D.C. No. CV-96-00348-JLQ UNITED STATES OF AMERICA, Defendant-Appellee. MARLENE MOE, on her own behalf; MELISSA MOE, minor, by and through her guardian ad litem; KELLY MOE, minor, by and No. 98-35938 through the guardian ad litem, D.C. No. Plaintiffs-Appellants, CV-96-00349-JLQ v. UNITED STATES OF AMERICA, Defendant-Appellee. 8158 SELMA JONES, on her own behalf, Plaintiff, and BRYAN JOSEPH (BJ) HANSEN, a No. 98-35939 minor, by and through his D.C. No. guardian ad litem, CV-96-00350-JLQ Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. EVA IRENE WALCH, Plaintiff-Appellant, No. 98-35946 v.
D.C. No.
CV-96-00634-JLQ
UNITED STATES OF AMERICA,
Defendant-Appellee.
TIFFANY WILLIAMS, individually
and on behalf of SEAN WILLIAMS
and HALI WILLIAMS, her minor
No. 98-35947
children,
Plaintiffs-Appellants,
D.C. No.
CV-96-00344-JLQ
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
RUTH GERKEN,
Plaintiff-Appellant,
No. 98-35948
v.
D.C. No.
CV-96-00345-JLQ
UNITED STATES OF AMERICA,
Defendant-Appellee.
SANDEE WOLD, individually and on
behalf of her minor children,
Anthony Zucchetto and Janessa
No. 98-35950
Zucchetto,
Plaintiffs-Appellants,
D.C. No.
CV-96-00346-JLQ
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
RANDE LINDNER, as the duly
appointed and qualified Personal
Representative of the Estate of
ANITA LOUISE LINDNER, deceased,
for the benefit of RANDE LINDNER,
No. 98-35951
ANASTASIA L. LINDNER, RICHARD L.
LINDNER, ROBERT M. LINDNER and
D.C. No.
CANDICE M. LINDNER,
CV-96-00635-JLQ
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
SAMUEL ALTON SPENCER, a minor
by and through his guardian ad
litem,
No. 98-35960
Plaintiff-Appellant,
D.C. No.
v.
CV-96-00351-JLQ
UNITED STATES OF AMERICA,
Defendant-Appellee.
SELMA JONES,
Plaintiff-Appellant,
No. 98-35961
v.
D.C. No.
CV-96-00423-JLQ
UNITED STATES OF AMERICA,
Defendant-Appellee.
J. ARTHUR ZUCCHETTO,
Plaintiff-Appellant,
No. 98-35962
v.
D.C. No.
CV-96-00577-JLQ
UNITED STATES OF AMERICA,
Defendant-Appellee.
GREGORY PAUL MCCARRON,
husband; GREGORY PAUL
No. 98-35963
MCCARRON on behalf of RYAN
D.C. No.
WILLIAM JOHN MCCARRON, his
CV-96-00578-JLQ
minor child; as personal
representative of the Estate of
CHRISTIAN FRANCIS MCCARRON,
deceased; ECHO ANN MCCARRON,
wife; RYAN WILLIAM JOHN
MCCARRON, a minor child;
CHRISTIAN FRANCIS MCCARRON,
deceased, estate of,
Plaintiffs-Appellants,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
HEATHER FORD, a single woman,
Plaintiff-Appellant,
No. 98-35965
v.
D.C. No.
CV-96-00638-JLQ
UNITED STATES OF AMERICA,
Defendant-Appellee.
LEDEANA KELLEY, wife; SHAWN
KELLEY, husband; REBECCA
KELLEY, a minor,
No. 98-35966
Plaintiffs-Appellants,
D.C. No.
v.
CV-96-00663-JLQ
UNITED STATES OF AMERICA,
Defendant-Appellee.
ASHLEY N. WILLIAMS, a minor, by
and through her natural father and
Guardian ad Litem, Sean
Williams; SEAN TYLER WILLIAMS,
No. 98-35967
Guardian ad Litem,
D.C. No.
Plaintiffs-Appellants,
CV-96-00108-JLQ
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
MICHELLE RENEE SIGMAN, on her No. 98-36077
behalf and as Guardian Ad Litem
D.C. Nos.
for James Douglas Sigman, a
CV-95-00534-JLQ
minor, and as personal
CV-96-00090-JLQ
representative of Taylor McKenzie
CV-96-00188-JLQ
Sigman, deceased; JAMES DOUGLAS
CV-96-00347-JLQ
SIGMAN, a minor; TAYLOR
CV-96-00348-JLQ
MCKENZIE SIGMAN, deceased;
CV-96-00349-JLQ
LORRAINE T. MURRAY, a single
CV-96-00350-JLQ
woman; HAZEL ROBERTS, wife;
CV-96-00634-JLQ
HAROLD ROBERTS, husband;
CV-96-00344-JLQ
PAULINE BROWN; MARILYN MOE;
CV-96-00345-JLQ
MARLENE MOE, on her own behalf;
CV-96-00346-JLQ
MELISSA MOE, minor, by and
CV-96-00635-JLQ
through her guardian ad litem;
CV-96-00351-JLQ
KELLY MOE, minor, by and
CV-96-00423-JLQ
through the guardian ad litem;
CV-96-00577-JLQ
SELMA JONES, on her own behalf;
CV-96-00578-JLQ
and BRYAN JOSEPH (BJ) HANSEN, a
CV-96-00638-JLQ
minor, by and through his
CV-96-00663-JLQ
guardian ad litem; EVA IRENE
CV-96-00108-JLQ
WALCH; TIFFANY WILLIAMS,
ORDER AND
individually and on behalf of SEAN
AMENDED
WILLIAMS and HALI WILLIAMS, her
OPINION
minor children; RUTH GERKEN;
SANDEE WOLD, individually and on
behalf of her minor children;
RANDE LINDNER, as the duly
appointed and qualified Personal
Representative of the Estate of
ANITA LOUISE LINDNER, deceased,
for the benefit of RANDE LINDNER,
ANASTASIA L. LINDNER, RICHARD L.
LINDNER, ROBERT M. LINDNER and
CANDICE M. LINDNER; SAMUEL
ALTON SPENCER, a minor by and
through his guardian ad litem;
SELMA JONES; J. ARTHUR
ZUCCHETTO; GREGORY PAUL
MCCARRON, husband; GREGORY
PAUL MCCARRON on behalf of
RYAN WILLIAM JOHN MCCARRON,
his minor child; as personal
representative of the Estate of
CHRISTIAN FRANCIS MCCARRON,
deceased; ECHO ANN MCCARRON,
wife; RYAN WILLIAM JOHN
MCCARRON, a minor child;
CHRISTIAN FRANCIS MCCARRON,
deceased, estate of; HEATHER FORD,
a single woman; LEDEANA KELLEY,
wife; SHAWN KELLEY, husband;
REBECCA KELLEY, a minor; ASHLEY
N. WILLIAMS, a minor, by and
through her natural father and
Guardian ad Litem, Sean
Williams; SEAN TYLER WILLIAMS,
Guardian ad Litem,
Plaintiffs-Appellants-
Cross-Appellees,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee-
Cross-Appellant.
Appeals from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Argued and Submitted
September 14, 1999--Seattle, Washington
Filed March 29, 2000
Amended July 14, 2000
Before: Alfred T. Goodwin and Mary M. Schroeder,
Circuit Judges, and William W Schwarzer, 1
Senior District Judge.
Opinion by Judge Schroeder
SUMMARY
The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 2000 by West Group.
_________________________________________________________________
Torts/Government Law
The court of appeals affirmed a judgment of the district
court in part and reversed in part. The court held that sover-
eign immunity does not bar negligence claims based on a mil-
itary service's enlistment, assignment rating following
treatment for mental illness, and discharge of a service mem-
ber in violation of mandatory regulations.
When Dean Mellberg enlisted in the Air Force, he com-
pleted two medical prescreening forms providing contradic-
tory medical and psychiatric history information. The Air
Force accepted Mellberg for enlistment without further ques-
tions. Neither the examining physician nor the senior officer,
who was required by regulations to review the application, did
any follow-up inquiry or investigation.
Soon after Mellberg reported for basic training, his odd
behavior led to a mental evaluation. He was diagnosed with
anxiety disorder with strong obsessive traits. Although it was
recommended that Mellberg be separated from the Air Force
immediately, his squadron commander returned him to duty.
While in training, Mellberg received two referrals for
mental-health evaluation for threatening to set fire to his
roommate and staring at walls for extended periods.
At Fairchild Air Force Base in Washington State, Mell-
berg's roommate complained of his bizarre and violent behav-
ior. Air Force psychologist Captain Alan London diagnosed
Mellberg with a mental disorder, and recommended that he be
separated. The squadron commander did not discharge him.
Following another incident, Mellberg underwent a follow-
up mental evaluation. London and psychiatrist Major Thomas
Brigham concluded that Mellberg was dangerous and
arranged to have him admitted for psychiatric evaluation and
treatment.
Mellberg's mental evaluation board (MEB) diagnosed sev-
eral psychiatric disorders. An informal physical evaluation
board (PEB) gave Mellberg a disability rating, found him
unfit for duty, and recommended him for discharge. Mell-
berg's mother demanded an evaluation by a civilian psychia-
trist.
Dr. John Campbell submitted an addendum to Mellberg's
MEB that downgraded his diagnosis. Campbell concluded
that Mellberg had an impairment for military service and was
"non-worldwide qualified." A second MEB based on Camp-
bell's addendum gave a diagnosis of autism disorder, recom-
mended that Mellberg be discharged promptly, and suggested
that he be returned to duty for administrative disposition. Mel-
lberg was allowed to return to duty.
After Mellberg reported for duty, it was discovered that he
had obtained his medical file, and that records relating to his
mental evaluations were missing. Another Air Force psychia-
trist diagnosed Mellberg with autism and paranoid personality
disorder, and recommended his discharge. The base com-
mander adopted the recommendation, and notified Mellberg
that she intended to discharge him.
Mellberg received an honorable discharge, 60 days of med-
ical care to be performed at his option, and two years of base
exchange and commissary privileges. After being seen on the
base at odd hours, Mellberg was barred from entering it
except for medical treatment while accompanied by military
police. The base did not warn any of Mellberg's other duty
stations.
Mellberg traveled to two Air Force bases to contact mental-
health personnel who had treated or evaluated him. A week
later he returned to Washington, and bought a rifle. Mellberg
entered Fairchild in a taxi unimpeded by security, went to the
medical facility outside the fenced area, killed London, Brig-
ham, and several others, and wounded many more. A military
policeman shot him dead.
Appellant Michelle Sigman and other representatives of the
victims sued the government, alleging that it was negligent in
proceeding with Mellberg's enlistment, retention, and honor-
able discharge without serious medical or psychological treat-
ment. The government moved for summary judgment on the
ground that all of the challenged conduct was the product of
military judgment and decisionmaking protected by the "dis-
cretionary function" exception to the Federal Tort Claims Act
(FTCA).
The district court concluded that the discretionary function
exception to the FTCA barred all of the plaintiffs' claims
except for those based on "negligent enlistment " and medical
malpractice. Both sides appealed.
[1] Congress waived the United States' immunity from
suits for money damages when it passed the FTCA. This
waiver is subject to limitations. [2] Only the "discretionary
function" exception was at issue in this case.
[3] To determine whether the discretionary function excep-
tion is applicable, courts typically determine first whether the
challenged action involves an element of choice or judgment.
The exception does not apply when a federal statute, regula-
tion, or policy prescribes a course of action for an employee
to follow. Only exercises of judgment that involve consider-
ation of social, economic, and political policy are excepted.
[4] That the Air Force would adopt standards for medical
fitness, but refuse to adopt procedures for implementing the
standards was not supported by the record. Mellberg's exami-
nation was conducted using a prescribed form that called for
follow-up in the event of an affirmative answer about prior
treatment of a mental condition. Regulations appeared to sup-
port the plaintiffs' position that when the Air Force in Mell-
berg's enlistment examination failed to follow up on his prior
treatment for a mental condition, it violated mandatory proce-
dures.
[5] Also at enlistment, the senior liaison non-commissioned
officer was required to review Mellberg's enlistment forms
for disqualifying or questionable information, and to resolve
questionable information before continuing the enlistment.
His review was not committed to unbridled discretion. He was
required to see that full disclosures were made.
[6] The plaintiffs were entitled to proceed on their claim
that the government negligently processed Mellberg's enlist-
ment by failing to undertake further mental or psychiatric
review that would have disclosed a serious condition. Appli-
cable regulations and internal directives denied the treating
physician and reviewing officer discretion to qualify Mellberg
for enlistment without follow-up on Mellberg's admission of
prior treatment for mental illness.
[7] The governmental discretion exception should not apply
to the claim for negligence in the diagnosis and treatment of
mentally ill individuals. [8] The claims did not involve com-
peting policy considerations. They involved performance of
duties by professionals. They did not relate to special func-
tions reserved to governmental policy and expertise exempted
from the FTCA's waiver of immunity. The district court cor-
rectly held that the claims should proceed.
[9] The Air Force was not negligent in failing to warn med-
ical personnel at Fairchild of Mellberg's release. [10] The
danger was not easily predictable, and the risks of causing
unfounded alarm were real. In addition, Mellberg's privacy
interests had to be taken into account. The decision not to
warn brought into play sensitive and competing policy consid-
erations of protecting safety while preserving resources, and
preventing unwarranted alarm for military employees.
[11] The district court properly rejected claims that security
measures at Fairchild were negligently inadequate. Decisions
by base commanders regarding security involve discretion
and the balancing of policy considerations.
[12] There was no regulation that required a medical facil-
ity to be within the fenced installation. It did not appear that
the medical facility at Fairchild was considered part of the
installation. Air Force regulations are extremely deferential in
granting the base commander discretion regarding security.
[13] A regulation specific to medical facilities provided that
they are unique, and standard protection principles had to be
adapted to fit the needs of the specific unit. The decision to
locate the medical facility outside the area subject to more
intensive security was consistent with those considerations.
The claims of negligent security were barred by the discre-
tionary function exception.
[14] Mellberg had an MEB evaluation that resulted in his
being rated "non-worldwide qualified," yet he was retained on
active duty. The applicable regulation provided that a patient
could not be returned to duty unless the patient was medically
qualified for "worldwide military service." Also, a regulation
provided that a medical treatment facility had to communicate
a member's medical status and duty limitations when return-
ing a member to duty following an MEB examination. The
regulations did not vest discretion in base command to retain
a member on duty who has received a non-worldwide rating.
The government could not rely on the discretionary function
exception to defeat claims that it negligently violated this
duty.
[15] The record failed to show that the mental health exam-
ination relied on by the government to justify Mellberg's sep-
aration complied with a mandatory regulation. Mellberg was
examined by a psychiatrist who was not board-certified, and
her evaluation was not sufficient to support discharge.
Because the duty was mandatory, the Air Force was not enti-
tled to immunity from challenges to Mellberg's discharge.
_________________________________________________________________
COUNSEL
Michael T. Truscott, United States Department of Justice,
Washington, D.C., for the defendant-appellee-cross-appellant.
Debra Stephens, Spokane, Washington, for the plaintiffs-
appellants-cross-appellees.
_________________________________________________________________
ORDER
The United States has filed a Petition for Rehearing and/or
Clarification. Rehearing is not appropriate. The opinion filed
on March 29, 2000 in this matter resolves only the jurisdic-
tional issues raised by the government's invocation of sover-
eign immunity, and on remand, the government is not
precluded from introducing evidence to establish it complied
with applicable standards and regulations.
The slip opinion filed March 29, 2000 is amended as fol-
lows:
Slip op. 3587, replace text of first full paragraph starting at
line 12 with the following:
. . . must fail because the applicable regulations and
internal directives denied the treating physician and
reviewing officer the discretion to qualify Mellberg
for enlistment without following up on Mellberg's
admission of prior treatment for mental illness.
Slip op. 3592-3, replace sentence starting at bottom of p.
3592 with the following:
The regulations do not vest discretion in the MEB to
recommend a return to duty if a member receives a
non-worldwide qualified rating.
Slip op. 3594, replace sentence starting at line 8 with the
following:
The record fails to show that the mental health eval-
uation relied upon by the government to justify Mell-
berg's separation complied with a mandatory
regulation.
The Petition for Rehearing and/or Clarification is otherwise
DENIED.
_________________________________________________________________
OPINION
SCHROEDER, Circuit Judge:
On June 20, 1994, less than one month after his honorable
discharge from the United States Air Force, Dean Mellberg
entered Fairchild Air Force Base near Spokane, Washington
and opened fire, killing 4 people and wounding 23 others. The
dead included two doctors who had months earlier diagnosed
Mellberg as dangerous. The representatives of 19 of the vic-
tims filed these actions claiming the United States should be
held liable on various theories of negligence for Mellberg's
enlistment, for his subsequent retention in the Air Force
despite bizarre behavior and unfavorable medical evaluations,
and for his eventual honorable discharge into society without
being given any serious medical or psychological treatment.
The government moved for summary judgment, claiming
all of its challenged conduct was the product of military judg-
ment and decision making protected by the "discretionary
function" exception to the Federal Tort Claims Act (FTCA).
See 28 U.S.C. S 2680(a). The plaintiffs responded that none
of the challenged conduct was shielded by immunity under
the FTCA. The district court granted the government's motion
only in part and both sides appeal after certification for inter-
locutory appeal pursuant to 28 U.S.C. S1292(b).
Factual Background
Mellberg enlisted at a Military Entrance Processing Station
(MEPS) in Lansing, Michigan in June of 1992. He filled out
two medical evaluation forms. On the first, an Applicant
Medical Prescreening Form, DD Form 2246, he answered that
he had never been hospitalized, never had any broken bones,
and had never been treated for any medical condition. On the
other, a Report of Medical History, SF 93, he gave flatly con-
trary answers, indicating that he had been hospitalized, had
suffered broken bones, and had been treated for a mental con-
dition, describing the treatment as "family counseling" in
December of 1986. Despite the conflicting answers and indi-
cations of prior physical and mental problems, Mellberg was
permitted to enlist without further questions being asked. Nei-
ther the examining physician nor the senior officer, who was
required by regulation to review the application, initiated any
follow-up inquiries or investigation. This failure was arguably
contrary to controlling regulations. See Army Regulation
(AR) 40-501; Air Force Regulation (AFR) 33-3.
Mellberg reported for basic training to Lackland Air Force
Base in Texas at the end of June 1992. Within three weeks of
arriving at Lackland, Mellberg was observed to be suffering
from nervousness, excitability, low self-esteem, excessive
sweating, and an inability to interact with fellow trainees. He
was referred to Behavioral Analysis Services (BAS) at Wil-
ford Hall, Lackland Air Force Base, for a mental evaluation,
where he was diagnosed as having an Axis I "generalized
anxiety disorder with strong obsessive traits." It was "strongly
recommended" Mellberg be administratively separated from
the Air Force immediately and referred to civilian mental
healthcare upon discharge. Although this recommendation
was forwarded to Mellberg's squadron commander, Mellberg
was retained by the commander and returned to duty.
In August 1992, Mellberg reported for technical training to
Lowry Air Force Base in Colorado. While at Lowry, Mellberg
was referred for mental health evaluations on at least two
occasions for threatening to set fire to his roommate and for
staring at walls for extended periods of time. The records doc-
umenting these referrals are missing from Mellberg's medical
records, possibly having been removed by Mellberg himself
at a later date.
Mellberg joined the 92nd Maintenance Squadron at Fair-
child Air Force Base in Washington in April 1993. On June
2, 1993, Mellberg's roommate complained that Mellberg was
masturbating repeatedly in his presence and had exhibited
violent and threatening tendencies. As a result, Mellberg was
directed to undergo another mental health evaluation.
On June 14, 1993, psychologist Captain Alan London diag-
nosed Mellberg with a generalized personality disorder with
strong obsessive-compulsive tendencies and recommended he
be promptly separated from the Air Force. Mellberg's squad-
ron commander decided not to discharge him, however, after
speaking with Mellberg's parents and Mellberg himself.
After a public confrontation outside his roommate's work
center on September 1, 1993, Mellberg underwent a follow-up
mental evaluation. In an effort to resolve the conflict, Captain
London and psychiatrist Major Thomas Brigham held a meet-
ing with Mellberg, his roommate, and their first sergeant.
Alarmed by their observations during the meeting, Drs. Lon-
don and Brigham concluded that Mellberg was dangerous and
arranged to have him admitted for psychiatric evaluation and
treatment.
On September 9, 1993, Mellberg was admitted to the medi-
cal center at Lackland Air Force Base for evaluation by a
medical evaluation board (MEB). Mellberg's first MEB diag-
nosed an Axis I anxiety disorder and a paranoid personality
disorder. Subsequently, an informal physical evaluation board
(PEB) gave Mellberg a 20 percent compensable disability rat-
ing due to his anxiety disorder, found him unfit for military
duty, and recommended his discharge. Mellberg demanded a
formal PEB evaluation, which was scheduled for December 8,
1993. That PEB was deferred after Mellberg's mother came
to Texas and demanded an additional evaluation from a civil-
ian psychiatrist.
On December 9, 1993, Dr. John J. Campbell submitted an
addendum to Mellberg's MEB, downgrading the diagnosis to
Axis II autism. Campbell noted that Mellberg had a "marked"
impairment for military service and was "S4 non-worldwide
qualified." On December 20, 1993, Mellberg's MEB paper-
work was recalled from the PEB system and that disability
proceeding was terminated.
A second MEB, held on January 4, 1994, and based on
Campbell's addendum, resulted in a diagnosis of Axis II
autistic disorder. The MEB recommended that Mellberg be
discharged from the Air Force promptly, and suggested he be
"return[ed] to duty for appropriate administrative disposi-
tion." On January 10, 1994, without apparent explanation, the
Air Force Military Personnel Center validated Mellberg for
return to duty.
Mellberg reported to Cannon Air Force Base in New Mex-
ico on March 1, 1994. On April 4, 1994, he was found riding
a bicycle on the base's golf course and was detained by base
security. Because he was uncooperative and unresponsive,
Mellberg was taken to the hospital for a urinalysis. It was dis-
covered that Mellberg had checked out his medical file on
false pretenses. Some of the records were eventually found in
Mellberg's room but the records related to his evaluations at
Lowry Air Force Base were not with them.
On April 20, 1994, Mellberg was referred to still another
commander-directed evaluation. He was diagnosed with
autism and paranoid personality disorder by psychiatrist Cap-
tain Lisa Snow, who recommended discharge after reviewing
a report prepared by a clinical psychologist, Tracy Dillinger,
who had examined Mellberg. The Cannon Air Force Base
commander adopted this recommendation, and on May 11,
1994, notified Mellberg of her intent to discharge him for
conditions that interfere with military service.
Mellberg was honorably discharged pursuant to AFR 39-10
on May 23, 1994, and was given 60 days of medical care to
be performed at his option and two years of base exchange
and commissary privileges. After being observed on the base
at odd hours, Mellberg was barred from entering Cannon Air
Force Base (except for medical treatment, and only if accom-
panied by military police) on May 25, 1994. Cannon did not
notify or warn Fairchild Air Force Base or any other base
where Mellberg had been stationed.
Mellberg then traveled to Lackland Air Force Base and vis-
ited a psychiatrist who had treated him previously. Thereafter,
he flew to Elmendorf Air Force Base in Alaska, apparently in
search of Drs. London and Brigham. A week later, Mellberg
returned to Washington and purchased a semiautomatic rifle
and 75-round magazine.
On June 20, 1994, Mellberg arrived at Fairchild Air Force
Base by taxicab, unimpeded by base security. He entered the
Fairchild Medical Treatment Facility, sought and killed Drs.
London and Brigham, and fired numerous gunshots through-
out the complex. He was killed by a military policeman after
killing four people and wounding 23 others.
Proceedings Below
The district court evaluated each of the plaintiffs' negli-
gence claims to determine the applicability of the discretion-
ary function exception, ultimately concluding that the
exception barred all of the plaintiffs' claims except for the
"negligent enlistment" and "medical malpractice" claims. It
entered judgment as to the barred claims and certified the case
for immediate review under 28 U.S.C. S 1292(b), noting that
the applicability of the discretionary function exception to
each of the claims represented a controlling issue of law. We
agreed and granted permission for interlocutory appeal. This
appeal by the government and cross-appeal by plaintiffs fol-
lowed.
The Federal Tort Claims Act
[1] Suits against the United States and its agencies are
barred by sovereign immunity unless permitted by an explicit
waiver of immunity from suit. See FDIC v. Meyer , 510 U.S.
471 (1994). Congress waived the United States' immunity
from suits for money damages for traditional tort claims when
it passed the Federal Tort Claims Act (FTCA), 28 U.S.C.
SS 2671-2680, which provides that "[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.S 2674. This
broad waiver of immunity is subject to various limitations.
[2] Only one exception is at issue in this case--the "discre-
tionary function" exception codified at 28 U.S.C.S 2680(a).
That section provides that the FTCA's provisions shall not
apply to:
Any claim based upon 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 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 Gov-
ernment, whether or not the discretion involved be
abused.
28 U.S.C. S 2680(a). The discretionary function exception is
designed to "prevent judicial `second-guessing' of legislative
and administrative decisions grounded in social, economic
and political policy through the medium of an action in tort."
United States v. Gaubert, 499 U.S. 315, 323 (1991). The
Supreme Court has also admonished that "it is the nature of
the conduct, rather than the status of the actor, that governs
whether the discretionary function exception applies in a
given case." United States v. Varig Airlines , 467 U.S. 797,
813 (1984).
[3] To determine whether the discretionary function excep-
tion is applicable, courts typically determine first whether the
challenged action involves an element of choice or judgment.
See United States v. Berkovitz, 486 U.S. 531, 536 (1988). The
exception does not apply when "a federal statute, regulation,
or policy specifically prescribes a course of action for an
employee to follow." Id. Second, assuming an action does
involve an element of choice or judgment, courts must decide
whether that choice or judgment is of the type that Congress
intended the discretionary function exception to shield. Id.
Only those exercises of judgment which involve consider-
ations of social, economic, and political policy are excepted
from the FTCA by the discretionary function doctrine. See
Varig Airlines, 467 U.S. at 814. The United States has the
burden of proving that the discretionary function exception
applies. See Prescott v. United States, 973 F.2d 696, 702 (9th
Cir. 1992). In cases in which the exception does apply, the
court lacks subject matter jurisdiction over the action. See
Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir. 1994);
Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996).
Mellberg's Enlistment
At the time of his enlistment, Mellberg completed Form SF
93, a Report of Medical History. On the form, Mellberg
answered that he had been treated for a mental condition,
describing the treatment as "family counseling " some five
years earlier. The issue that divides the parties here is whether
government regulations required it to obtain follow-up infor-
mation or whether, as the government maintains, there were
no regulations regarding further exploration by the examining
physician or the reviewing officer once prior physical or men-
tal illnesses were disclosed. It is undisputed that neither the
examining physician nor the senior liaison non-commissioned
officer required by regulation to review the report, see AFR
33-3, did any followup questioning about the mental illness.
Mellberg was thus permitted to enlist in the Air Force without
the Air Force having obtained any information as to the nature
of his prior mental illness or medical treatment for it.
The district court held that Army Regulation (AR) 40-501
applied to the enlistment. It is undisputed that Chapter 8 of
that voluminous regulation, pertaining to various standards of
medical fitness, requires that the examining physician at
enlistment obtain clarification and a full description whenever
the prospective enlistee responded affirmatively to any of the
questions regarding existence of prior treatment for a physical
or mental condition.
The physician will summarize and elaborate upon
the examinee's medical history as revealed in items
8 through 24 . . . cross-referencing his or her com-
ments by item number. All items checked in the
affirmative will be clarified and the examiner will
fully describe all abnormalities including those of a
nondisqualifying nature. This information is needed
to assist in evaluating the examinee's background
and to protect the individual and the government in
the event of future claims for disability or aggrava-
tion of disability.
AR 40-501, Chapter 8-14(d)(1).
The government maintains that Chapter 8 of AR 40-501 did
not apply to Mellberg's enlistment because it occurred at a
Military Entrance Processing Station (MEPS). For that rea-
son, the government argues, the court should have looked
only to AFR 33-7, a regulation that generally pertains to the
operation of a MEPS, and Chapter 8 of that regulation, which
relates to the medical examination. Chapter 8 of AFR 33-7
expressly incorporates the medical fitness standards for enlist-
ment in AR 40-501, Chapter 2. The Air Force stresses that the
Air Force MEPS regulation does not expressly incorporate the
requirements of AR 40-501, Chapter 8. It urges us to conclude
that there were therefore no applicable controlling procedures.
According to the government, the manner in which the exami-
nation was conducted, no matter how negligent, was commit-
ted by Air Force policy to the discretion of the examining
physician and reviewing officer.
[4] It is hard for us to believe the Air Force would adopt
standards for medical fitness, but refuse to adopt procedures
for implementing the standards. Nor is that position supported
by the record. Mellberg's examination was conducted by
using the very SF 93 form prescribed in AR 40-501, Chapter
8. The form itself calls for follow-up in the event of an affir-
mative answer to the question about prior treatment of a men-
tal condition. AFR 33-7, relied on by the government, does
expressly refer to Chapter 10 of AR 40-501; Chapter 10, enti-
tled "Medical Examination Techniques," prescribes, inter alia,
the procedures to be followed for a full medical examination.
It assumes the completion of a Form SF 93 relating to a psy-
chiatric interview by stating, "The psychiatric interview will
be conducted subsequent to the completion of all items on SF
88 and 93." Therefore applicable regulations appear to sup-
port plaintiffs' position that when the Air Force in Mellberg's
enlistment examination failed to follow up on his prior treat-
ment for a mental condition, the Air Force violated mandated
procedures.
The government also contends that the district court erred
when it did not defer to a particular declaration by the Medi-
cal Standards Officer of the United States Military Entrance
Processing Command, Dr. Charles Arrants. His declaration
stated that in 1992 there were no regulations or guidelines
specifically addressing what action should be taken when a
MEPS examining physician confronts an enlistment candidate
who reports a history of family counseling. The government
asks us to rely on this declaration as an authoritative agency
interpretation of its own regulations. See, e.g. , City and
County of San Francisco v. United States, 130 F.3d 873, 877
(9th Cir. 1997).
This affidavit appears to have been prepared for this litiga-
tion and does not appear to have been followed by the agency
itself. The district court cited subsequent memoranda written
by Dr. Arrants and a colleague that conflicted with Dr.
Arrants' declaration. In an August 10, 1994, memorandum to
MEPS commanders, intended "to reemphasize proper proce-
dure for evaluation of applicants with a history of past psychi-
atric treatment," Dr. Arrants advised that where prior
counseling is disclosed, the actual counseling records must be
obtained:
Whenever any psychiatric/counseling history is
noted, the MEPS physician must obtain all relevant
civilian medical counseling records in order to eval-
uate the actual nature of the problem. If those
records reveal that a disqualifying condition existed
in the past, the applicant must be found disqualified
regardless of his or her present state. (Emphasis in
original).
This advice was echoed in a followup memo by a subordinate,
Colonel Wanda Wood, which stated again that the "long-
standing policy on psychiatric history . . . has been to require
review of civilian medical health records for all positive histo-
ry" and "to include any counseling of a mental health nature."
These memoranda prepared for agency use are more persua-
sive than the declaration of Dr. Arrants prepared for litigation.
[5] Also at enlistment, the senior liaison non-commissioned
officer was required to review Mellberg's enlistment forms
for disqualifying or questionable information, and to resolve
questionable information before continuing Mellberg's enlist-
ment. See ATCR 33-2, S 1-3(b)(4). His review was not com-
mitted to unbridled discretion either. He was required to see
that full disclosures were made.
[6] We therefore affirm the district court's holding that
plaintiffs are entitled to proceed on their claim that the gov-
ernment negligently processed Mellberg's enlistment by fail-
ing to undertake further mental or psychiatric review that
would have disclosed the existence of a serious mental condi-
tion. The government's threshold claim of sovereign immu-
nity on the ground of discretionary function must fail because
the applicable regulations and internal directives denied the
treating physician and reviewing officer the discretion to qual-
ify Mellberg for enlistment without following up on Mell-
berg's admission of prior treatment for mental illness.
Subsequent Failures to Diagnose and Treat Mellberg
for Serious Mental Disorders
Plaintiffs raise various claims under the FTCA for subse-
quent failures to diagnose, treat, and control Mellberg, despite
repeated referrals to physicians for evaluations. The district
court denied the government's motion to dismiss these claims
on immunity grounds, holding that they amounted to claims
of medical malpractice, and were therefore not covered by the
discretionary function exception. It relied upon Fang v.
United States, 140 F.3d 1238 (9th Cir. 1998); Lather v. Bea-
dle County, 879 F.2d 365 (8th Cir. 1989); and Collazo v.
United States, 850 F.2d 1 (1st Cir. 1988). These cases are all
examples of the now well-established principle that the dis-
cretionary function exception is intended to shield the govern-
ment from liability for the exercise of governmental
discretion, not to shield the government from claims of
garden-variety medical malpractice.
The government argues that because the Air Force psychia-
trists and psychologists who evaluated Mellberg were in each
instance carrying out a directive ordered by a commander
who was concerned less about Mellberg's well-being than his
fitness to serve in the military, the physicians were perform-
ing a discretionary policy-based function and are shielded
from liability under the FTCA. It relies on Foster v. United
States, 923 F.2d 765 (9th Cir. 1991), in which we held that the
alleged negligence of an FAA physician in issuing a medical
certificate for a commercial pilot, who later had a heart attack
during flight, was within the discretionary function exception.
Foster, and other cases upon which the government relies,
however, involve the evaluation of individuals or programs
for specialized governmental requirements, such as the FAA
certification requirements at issue in Foster . See 14 C.F.R.
SS 61.3(c) et seq. Analogously, in Consolidated Atmospheric
Testing v. Livermore Labs, 820 F.2d 982, 993-95 (9th Cir.
1987), we considered claims for radiation injuries resulting
from the Department of Defense's atomic weapon testing pro-
gram, and held they fell within the exception. In General
Dynamics Corp. v. United States, 139 F.3d 1280 (9th Cir.
1998), we dealt with prosecutorial discretion, an inherently
governmental function.
[7] In this case, by contrast, the claim is for negligence in
performing a function that is analogous to functions per-
formed by professionals in the private sphere every day: the
diagnosis and treatment of mentally ill individuals. The gov-
ernmental discretion exception should not apply.
The distinction we draw is not new, although this is the first
case of which we are aware involving mental fitness examina-
tions of members of the military. It exemplifies the distinction
between the exercise of governmental discretion and non-
governmental discretion. Professor Davis summarized it
cogently:
The discretionary function exception is limited to the
exercise of governmental discretion and does not
apply to the exercise of nongovernmental discretion
such as professional or occupational discretion. The
driver of a mail truck makes many discretionary
decisions but they are not within the exception
because they involve driving discretion, not govern-
mental discretion. The physician at the veterans'
hospital exercises professional discretion in deciding
whether or not to operate; . . . he combines profes-
sional discretion with governmental discretion when
he decides that budgetary restrictions require nonuse
of an especially expensive treatment in absence of
specified conditions.
K. Davis, Administrative Law Treatise S 25.08 at 403-04
(Supp. 1982).
We drew this distinction quite explicitly in Fang, where
plaintiff challenged the medical treatment administered at the
remote scene of an automobile crash in a national park. See
Fang, 140 F.3d 1238. We held that the government exercised
a discretionary function when it decided the amount and qual-
ity of medical equipment it needed to maintain to respond to
accidents in infrequently visited areas of the park. See id. at
1243. Once emergency technicians arrived at the scene, how-
ever, the manner in which they conducted ordinary medical
procedures, such as administering splints and transporting the
patient, had nothing to do with policy considerations and
hence were not immune. Id. at 1242. "[T]he United States is
not immune from claims which challenge the actual adminis-
tration of medical care by its employees when the claims do
not concern actions which are the product of judgment driven
by the consideration of competing policy-based choices." Id.
at 1241-42.
[8] In this case, plaintiffs' claims arising out of the failure
of Air Force physicians to properly diagnose Mellberg's con-
dition do not involve any competing policy considerations.
They involve performance of duties by professionals both
inside and outside the military. They do not relate to any spe-
cial functions reserved to governmental policy and expertise
and exempted from the FTCA's waiver of immunity. The dis-
trict court correctly held the claims should proceed.
Failure to Warn Employees of Fairchild Air Force Base
[9] The district court dismissed plaintiffs' claims that the
Air Force was negligent in failing to warn medical personnel
at Fairchild Air Force Base of Mellberg's release from the
military. The plaintiffs contend that the court erred by relying
upon cases involving the application of allegedly mandatory
directives to issue warnings of potential hazards in national
parks. See, e.g., Blackburn v. United States, 100 F.3d 1426
(9th Cir. 1996); Valdez v. United States, 56 F.3d 1177 (9th
Cir. 1995); Childers v. United States, 40 F.3d 973 (9th Cir.
1994). The plaintiffs suggest that the court should have found
this case analogous to an ordinary state law negligence claim
not involving the exercise of discretionary, policy-based deci-
sionmaking. See Jablonski v. United States, 712 F.2d 391 (9th
Cir. 1983) (doctors' failure to warn mental patient's girl-
friend, who was later killed, of patient's dangerousness not
discretionary function), overruled on other grounds, Matter of
McLinn, 739 F.2d 1395 (9th Cir. 1984).
[10] This case, however, unlike Jablonski, does not involve
a failure to warn about any easily foreseeable physical hazard
to particular individuals. The danger in this case was not so
easily predictable, and the risks of causing unfounded alarm
were real. In addition, Mellberg's own privacy interests had
to be taken into account. We agree with the district court that
the Air Force's decision not to warn Fairchild Air Force Base
of Mellberg's release, though ill advised, brought into play
sensitive and competing policy considerations of protecting
safety while preserving resources and preventing unwarranted
alarm for military employees.
Base Security at Fairchild
[11] The district court also properly rejected plaintiffs'
claims that the security measures in place at Fairchild Air
Force Base were negligently inadequate. Decisions by base
commanders regarding base security involve discretion and
the balancing of numerous policy considerations. See, e.g.,
Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 970
(4th Cir. 1992); cf. United States v. Albertini , 783 F.2d 1484,
1487 (9th Cir. 1986).
Plaintiffs argue that Fairchild was in violation of "manda-
tory minimum" controls set forth in AFR 125-37. These
included perimeter fencing around Air Force installations, the
posting of warning signs, and barring taxis unless the person-
nel transported possessed DOD credentials. The medical facil-
ity was not within the fenced and gated area, and Mellberg
arrived there by taxi without credentials.
[12] There is no regulation, however, that requires a medi-
cal facility to be within the fenced installation. From this
record it does not appear that the medical facility at Fairchild
Air Force Base was considered part of the "installation" for
purposes of AFR 125-37. Air Force regulations are extremely
deferential in granting the base commander discretion regard-
ing security:
The installation commander, with the advice of the
RPEC, determines the degree of control required
over personnel entering or leaving the base . . . .
[The base commander,] in determining the strin-
gency of the controls [over base entry] used, must
consider the local environment; the security priority
of assigned resources (AFR 207-1); the threat to the
base; pilferage problems; and base features that
might present significant hazards to public safety.
AFR 125-37, 6-2.
[13] Finally, a regulation specific to Air Force medical
facilities provides that such facilities are unique and that stan-
dard protection principles must be adapted to fit the needs of
the specific unit, as they must be open 24 hours a day "with
an entire cross-section of military and non-military personnel
flowing in and out at various times." AFR 125-37, 12-2c. The
decision to locate the medical installation outside the area
subject to more intensive security requirements was consistent
with these considerations. The plaintiffs' claims of negligent
security at Fairchild Air Force Base are therefore barred by
the discretionary function exception to the FTCA.
Mellberg's Return to Duty with a "Non-Worldwide
Qualified" Rating & Eventual Discharge
The facts surrounding Mellberg's treatment at Lackland
and Cannon Air Force Bases and his eventual honorable dis-
charge without medical treatment are rather confused. They
appear to form the basis of at least three claims (apart from
claims of medical malpractice) that present sufficient allega-
tions that the government violated applicable regulations to
survive the government's motion to dismiss.
[14] At Lackland, Mellberg had a Medical Evaluation
Board (MEB) evaluation that resulted in his being rated "non-
worldwide qualified," yet he was retained on active duty.
Plaintiffs claim the applicable regulation, AFR 168-4, was
violated because it provides that a patient cannot be returned
to duty unless the patient is medically qualified for "world-
wide military service." AFR 168-4, Chapter 13-22. Also, AFR
168-4, Chapter 13-32 provides that a medical treatment facil-
ity must communicate a member's medical status and duty
limitations when returning an Air Force member to duty fol-
lowing an MEB examination.2 The regulations do not vest dis-
cretion in the MEB to recommend a return to duty if a
member receives a non-worldwide qualified rating. See AFR
168-4, Ch. 13-22. Hence the government cannot rely on the
discretionary function exception to defeat plaintiffs' claim
that the government negligently violated this mandatory duty.
Similarly, plaintiffs claim that Lackland's medical facility
was negligent in failing to complete an AF Form 422, an eval-
uation used in connection with the MEB. This claim should
not have been dismissed. Such a form is required by AFR
168-4, Chapter 13-32 ("The servicing medical treatment facil-
ity must provide a proper AF Form 422 . . .) (emphasis
added).
Once transferred to Cannon Air Force Base in March 1994,
Mellberg's bizarre behavior once again prompted his referral
for a mental health examination. An exam conducted in con-
nection with his subsequent discharge proceedings resulted in
Mellberg being found "world-wide qualified," and hence eli-
gible for release without medical restriction. Plaintiffs con-
tend that Mellberg's release should have been pursuant to
AFR 168-4, Chapter 12-98, an outprocessing provision that
requires adequate provision for medical care on release.3
[15] According to the plaintiffs, Mellberg could not prop-
erly have been discharged pursuant to AFR 39-10, 5-11(i)(1),
because his recommendation for discharge was not "sup-
ported by a report of evaluation by a board certified psychia-
trist or clinical psychologist" which "state[d] the disorder is
so severe that the member's ability to function effectively in
the military environment is significantly impaired, " as
required by AFR 39-10, 5-11. We agree. The record fails to
show that the mental health evaluation relied upon by the gov-
ernment to justify Mellberg's separation complied with a
mandatory regulation. Mellberg was examined by Captain
Lisa Snow, a psychiatrist. Snow's May 5, 1994, memorandum
was relied upon in the letter notifying Mellberg of his dis-
charge from the Air Force. However, Snow was not board
certified at the time of Mellberg's evaluation, as mandated by
AFR 39-10, 5-11, and her evaluation was not sufficient to
support the government's discharge of Mellberg under AFR
39-10. Because the duty alleged to have been violated is man-
datory, the Air Force is not entitled to immunity from chal-
lenges to Mellberg's discharge under the discretionary
function exception.
Conclusion
The district court's dismissal of plaintiffs' claims involving
alleged violations of mandatory regulations in connection
with Mellberg's return to duty with a "non-worldwide quali-
fied" rating and his honorable discharge is reversed, and those
claims are remanded to the district court. The district court's
decision, dismissing the remaining claims except those arising
out of Mellberg's enlistment and alleged medical malpractice
by Air Force doctors, is otherwise affirmed. We express no
opinion on the merits of any of plaintiffs' claims, which we
return to the district court for further proceedings. We hold
only that they are not barred by sovereign immunity.
AFFIRMED IN PART AND REVERSED IN PART. Each
party to bear its own costs./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove: not found
_______________________________________________________________
FOOTNOTES
1 Honorable William W Schwarzer, Senior United States District Judge
for the Northern District of California, sitting by designation.
2 AFR 168-4, Chapter 13-32 provides in part:
Physical Profile After MEB. The servicing medical treatment
facility must provide a proper AF Form 422 for members
returned to duty following MEB action . . . . AF Form 422 is a
means for medical authority to communicate a member's medical
status and duty limitations to the member's commander, servic-
ing CBPO and other nonmedical agencies.
3 AFR 168-4, Chapter 12-98 provides in part: a. A patient who does not exhibit suicidal or homicidal tenden-
cies may be released to the custody of the next of kin (at the
patient's request) . . . .
b. A patient who exhibits suicidal or homicidal tendencies is
disposed of as follows:
(1) A member or former member of the Armed Forces who
is entitled to treatment by the VA is:
(A) Moved to a hospital designated by the VA.
(B) Delivered to an acceptable state, municipal, or
civilian hospital. This requires the request of the
next of kin and authorization for admission from
the hospital concerned.
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