To: Jane M. Bolin, Assistant U.S.

Attorney, Civil Division Chief

From: Jarrod Nelson, Assistant U.S. Attorney
Date: November 27, 2018
Re: Kovacs v. United States - Civil Action No. 2:15-CV-0014
Questions Presented

Peter Kovacs and his son allege that the United States Government was negligent through

the actions of drunk Park Rangers and through a Park Manager’s creation of a sign removal plan

remove bear warning signs from Carlsbad Caverns National Park in New Mexico, which

allegedly led to Kovacs’ injury by a bear attack. In the District of New Mexico, will the

government be able to dismiss Count 1 (Negligence of the Park Rangers) by showing that the

Rangers’ actions were outside their scope of employment under New Mexico law, and be able to

dismiss Count II (Negligence of the Park Manager) by arguing that the plan was a “discretionary

function” of the National Park Service under the Federal Tort Claims Act?

Brief Answer

Likely no on the first question, but likely yes on the second. New Mexico law says that

an employee is within their scope of employment when, in relevant part, their action is of the

kind they are employed to perform and when it is done, in part, to serve the employer. Here, the

sign removal was an ordered act that fit the Rangers’ duties and that came about because of the

National Park Service’s interest in sign replacement, making it an action within the Rangers’

scope of employment. However, it is likely Count II will be dismissed, since the plan to replace

bear warning signs within the park was likely a “discretionary function” that exempts the

government from suit. The Supreme Court has ruled that an act is exempt from suit if it is

actually discretionary and comes about due to “political, social or economic policy

considerations.” The Park Manager is given discretion to create plans, and created this one with

social and economic policy considerations in mind, namely the recent bear attack and the park’s

limited resources. Relevantly, other kinds of warnings about bears were also provided.

Statement of Facts

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 On June 1, 2017, Xiujin Wu, a Park Manager at Carlsbad Caverns National Park in New

Mexico, sent an email to all Rangers detailing a plan to replace bear warning signs at all

trailheads and campsites. Ex. A at 1. Wu told each Ranger to remove the old bear signs during

their regular rounds, since new signs would be put up next Friday by contractors. Id. Wu knew

some areas would be without signs for a few days, but noted a lack of recent bear issues and that

the lack of options, since no resources could be used to replace the signs as the contractors took

them down, which Wu preferred but could not afford. Id. Relevantly, Wu’s position requires

picking solutions to problems and developing safety and resource management plans. Ex. C at 6.

The next day, a child was killed in a bear attack 4 miles east of Lewis Campsite in the

park, and the bear was marked for euthanasia. Ex. B at 1. Wu responded by altering the plan

slightly: signs would still come down during rounds, but the Rangers assigned to Lewis

Campsite were to leave the signs up until the night before the contractors arrived. Ex. A at 2.

Rangers were told to warn campers about the attack and to be careful. Id. These orders were sent

out in emails. Ex. A. This plan changed on June 9, when Wu received word that the contractors

would be delayed until June 18. Ex. A at 3. He told all rangers to “take [their] time removing

signs” if they hadn’t done so already. Id. When Wu was informed on June 17 that the signs

around the Lewis Campsite would not be replaced until June 19, he immediately emailed

Rangers John Gillespie and Sarah Vaughn, telling them not to remove the signs there until the

next day. Ex. A at 4. Importantly, the Rangers’ duties require maintenance, patrols, and

following the orders of Park Managers. Ex. C at 4. The Rangers did not see the email until after

removing the signs while drunk though, having chopped them down with a hatchet. Ex A. at 4.

The day after, June 18, there were no signs around Lewis Campsite when Peter Kovacs

and his son A.K. moved in to camp. Ex. A at 4. That night, they were attacked by the Davenport

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bear, sustaining serious injuries, but survived. Compl. ❡ 20–22. The bear was located the

following day and put down. Compl. ❡ 23. Kovacs sued the United States for negligence in both

the removal of the signs (Count I) and the plan to remove the signs (Count II), asking for no less

than $750,000 in damages. Compl. ❡ 33. The complaint has been filed in the United States

District Court for the District of New Mexico, and the government intends to respond to both

counts by asking for 12(b)(1) motions to dismiss for lack of subject matter jurisdiction.

Discussion

Count 1 is unlikely to be dismissed, but Count II is likely to be dismissed. As

background, the United States is not subject to suit unless it consents. Price v. United States, 174

U.S. 373, 375 (1899). This “sovereign immunity” is waived in some instances listed in the

Federal Tort Claims Act (FTCA). 28 U.S.C. § 2674 (2012). Plaintiffs can only sue the

government for its employees’ actions when the employees are “within the scope of [their] office

or employment.” 28 U.S.C. § 2672 (1990). Even if the acts are within that scope, the government

is not liable for “any 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...whether or not the

discretion involved be abused,” a rule known as the “discretionary function exemption.” 28

U.S.C. § 2680(a) (2006). When analyzing if an employee was within their scope, state law in the

forum state is controlling. Fowler v. United States, 647 F.3d 1232, 1237 (10th Cir. 2011). When

deciding if an act falls within the exemption, the FTCA is controlling, and in 12(b)(1) motions

like the government plans to pursue, the plaintiff carries the burden of proof in showing that

subject matter jurisdiction exists. Celli v. Shoell, 40 F.3d 324, 327 (10th Cir. 1994). With this in

mind, the court will consider each count individually. The court is unlikely to dismiss Count I.

Under New Mexico law, the Rangers would be within their scope of employment when, in

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relevant part, their actions are of the kind they are employed to perform and when they are done,

in part, to serve the employer. Narvey v. Daniels, 846 P.2d 347, 355 (N.M. Ct. App. 1992). The

removal was likely within the Rangers’ scope of employment, since it was the kind of act they

were employed to do based on their orders and duties and because it was done, at least in part, to

benefit their employer’s sign removal plan. However, Count II is likely to be dismissed. The

Supreme Court finds actions within the exemption if they are actually discretionary and come

about due to public policy considerations. United States v. Gaubert, 499 U.S. 315, 322–323

(1991). The Park Manager’s sign removal plan was an actually discretionary action based on his

duties and was grounded in public policy considerations like safety and resource allocation.

1. The rangers were likely operating within the scope of their employment.

New Mexico law utilizes the four-part test from Narney v. Daniels to decide if an action

is within an employee’s scope of employment. See generally Rivera v. N.M Highway & Transp.

Dept’, 855 P.2d 136 (N.M. Ct. App 1993). The test says that if an act “is the kind the employee

is employed to perform,” happens in a time and place reasonably connected to the employment,

and “is actuated at least in part, by a purpose to serve the employer,” then it is within the scope

of employment. Narney, 846 P.2d at 355. Narney is clarified by the New Mexico Uniform Jury

Instructions, which state that an act is within the scope of employment if it is “fairly and

naturally incidental to the employer’s business assigned to the employee,” and “was done while

the employee was engaged in the employer’s business with the view of furthering the employer’s

interest and did not arise entirely from some external, independent and personal motive on the

part of the employee.” Lessard v. Coronado Paint and Decorating Company, Inc. 168 P.3d 155,

160 (N.M. Ct. App. 2007). The time and place prongs of the Narney test are not disputed, as the

Rangers were on patrol in the park when they removed the signs. The Tenth Circuit has said that

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“a court has wide discretion to allow affidavits” and “other documents...to resolve disputed

jurisdictional facts under Rule 12(b)(1).” Holt v. United States, 46 F.3d 1000, 1003 (10th Cir.

1995). The District of New Mexico has used an employee’s job description as evidence of duties

they were employed to perform. Allender v. Scott, 379 F.Supp.2d 1206, 1219 (D.N.M. 2005).

The sign removal is likely the kind of act the Rangers were employed to perform. As

their guidelines state, they are to “inspect facilities” and “perform building and park security

patrol.” Ex. C at 4. Rangers “service and maintain…equipment,” Ex. C at 1, which was the point

of removing the signs, Ex. A at 1. Rangers also receive work orders from Park Managers, Ex. C

at 1, like how the Rangers received this order from Wu, Ex. A at 1–2. Previously, the District of

New Mexico used police duty guidelines to help define what types of actions that police officers

accused of exceeding their authority were employed to perform, and the Rangers’ Position

Classification Standard (PCS) will likely serve a similar purpose here. Allender, 379 F.Supp.2d

at 1219. The court is likely to find that the sign removal is likely the kind of act the Rangers were

employed to perform, and that they satisfy the first prong of the Narney test.

The rangers’ acts were also “actuated at least in part by a purpose to serve the employer.”

Narney, 846 P.2d at 355. New Mexico courts have read this as extending scope of employment

to any act that “did not arise wholly from some external, independent, and personal motive on

the part of the servant.” Childers v. Southern Pacific Company, 149 P. 307, 308 (N.M. 1915).

Tenth Circuit cases that apply New Mexico law also endorse this standard. See generally White

Auto Stores v. Reyes, 223 F.2d 298, 302 (10th Cir. 1955). The Tenth Circuit has used orders to

establish a purpose to serve an employer while acting, as in the case of United States v. Mraz,

255 F.2d 115, 116 (10th Cir. 1958). There, an Army officer ordered to transfer bases was found

to be furthering his employer’s interest during a car wreck, since he was only driving because of

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the order. Id. at 117. Similarly, the Rangers would not have gotten rid of the signs without Wu’s

orders, as they say in an email. Ex. A at 5. Their motive was not wholly personal. It is likely the

court will find they were furthering the employer’s interest and meet the last prong of Narney.

The government may argue that the Rangers’ drinking was not authorized, and thus

removed them from their scope of employment. But the Tenth Circuit, when applying New

Mexico law, has ruled that inebriation or intoxication is not enough by itself to remove one from

their scope of employment. See Nichols v. United States, 796 F.2d 361, 365 (10th Cir. 1986)

(finding that a security guard drunkenly biting off a civilian’s finger was not enough to say he

was removed from the scope of his employment). In one case, a truck driver consumed

methamphetamine and caused a severe car accident, but because the driver was engaged in her

duties at the time, she was found to be within the scope of her employment. Frederick v. Swift

Transp. Co., 616 F.3d 1074, 1080 (10th Cir. 2010). Here, the rangers consumed alcohol but were

engaged in their duties by patrolling and removing the signs, much like how the driver was high

but still driving her assigned route. Truly severe intoxication can remove one from their scope of

employment, but if one continues their duties, like in Fredericks, 616 F.3d 1074, and this case, it

is likely they are still in their scope of employment. Id.

The government could also contend that the Rangers left their scope of employment by

going beyond their authority through chopping down the signs. However, the Tenth Circuit has

said an employee’s unauthorized actions can still be within their scope of employment if they

“are of the same general nature of and incidental to the conduct authorized.” Reyes, 223 F.2d at

302. In Reyes, a gas repairman was not authorized to install stoves but did anyway in the course

of a housecall, causing burns to a customer after it was improperly installed. Id. Here, the

Rangers were not authorized to chop down the signs but did so during their assigned patrol,

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similar to how the repairman was not authorized to install the stove during an assigned housecall.

Id. The court found the repairman within his scope of employment, and would likely find the

Rangers were as well, since the unauthorized acts arose incidentally during authorized acts. Id.

Last, the government may contend that because the Rangers chopped the signs down for

fun, Ex. A at 5, that they were not furthering their employer’s interest and were thus removed

from their scope of employment. However, New Mexico law has been strict in finding that an

action must be done for solely personal reasons while on the job to not meet this prong. In the

case of Rivera, Rivera had a bucket of water thrown on him by a state worker, seemingly out of a

desire for “horseplay.” Id. at 139. The Court of Appeals of New Mexico found nothing to show

“that the Defendant’s business was being served” and noted that the employer’s desire must just

in part be furthered. Id. Here the chopping down, even though “horseplay,” was done in part to

further the employer’s interest in sign removal, unlike in Rivera where the action served no

purpose beyond the employee’s own desires. Thus, it is likely the Rangers’ acts meet all four

prongs of Narney, and that the court would find them within their scope of employment.

2. The sign removal plan was likely an exempted discretionary function under the FTCA

The FTCA allows the government immunity from any claim based on an action or

omission by an employee that itself is based on the exercise or non-exercise of some type of

discretionary function that employee is granted by law. 28 U.S.C. § 2680(a). In Gaubert, 499

U.S. at 322–323, the Supreme Court ruled that such an action must be actually discretionary and

implicate some type of public policy consideration. These considerations must be grounded in

either social, economic, or political policy. United States v. Varig Airlines, 467 U.S. 797, 814

(1984). When a policy or regulation allows discretionary actions, or actions with an element of

judgement or choice, the exercise of that discretion is presumably founded in policy, and that

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presumption must be overcome by plaintiffs for their complaint to survive. Gaubert, 499 U.S. at

324. Overcoming that presumption would require showing that the acts at issue “are not the kind

of conduct that can be said to be grounded in the policy of the regulatory regime.” Id. at 325.

When examining the conduct at issue, the focus is not on the actor’s subjective intent, but instead

on the kind of action they took, and if those acts are “susceptible to policy analysis.” Id.

The first prong of the test is not at issue. There is no dispute that Wu had the

discretionary authority to institute the sign removal plan, based on his authority contained in the

Position Classification Standard for Park Rangers. Ex. C at 6. As the Court makes clear, “an

agency may rely on internal guidelines rather than on publishing regulations” when establishing

policy and discretionary actions. Gaubert, 499 U.S. at 324 Thus, the exemption is presumed to

apply. Id. The evidence in this case will make overcoming it difficult. The Tenth Circuit has

ruled considerations like Wu’s can ground a decision in policy considerations, like in Kiehn v.

United States, 984 F.2d 1100, 1105 (10th Cir. 1993). There, a hiker fell while climbing and

suffered severe injuries, later suing the government for not posting warning signs about the

dangers of climbing in that area even though it provided other warnings through its employees.

Id. There, the Tenth Circuit found that “the decision not to post warning signs…inherently

requires a balancing of public policy objectives, such as resource allocation, visitor safety, and

scenic preservation,” and found the lack of signs grounded in public policy based on the

balancing of those factors. Id. Similarly, Wu makes clear that the plan considered visitor safety,

given his alteration of the plan in response to the bear attack, Ex. A at 2, and resource allocation,

shown when Wu wrote that he didn’t “have the additional resources available to hire even

temporary employees to help with the sign replacement process,” Ex. A at 1. The NPS in Kiehn

and Wu here were considering safety and resource allocation when creating plans. It is unlikely

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the court would find one grounded in policy and the other not.

The Tenth Circuit has also found providing other warnings to be highly dispositive on

whether an action is grounded in public policy considerations or not, since the decision to warn

is often “subject to policy-based considerations.” Clark v. United States, 695 Fed. Appx. 378,

388 (2017). In Zumwalt v. United States, 928 F.2d 951, 952 (10th Cir. 1991), a hiker fell into a

cave in a park and sued due to a lack of warning signs, but the park had provided warning

pamphlets to ensure visitor safety was balanced with the park’s natural beauty. In this case, Wu

left signs up in the most dangerous area for longer in order to ensure visitor safety and instructed

the Rangers to warn any campers of potential danger from bears, balancing visitor safety with the

resource constraints. Ex. A at 2. The Tenth Circuit found in Zumwalt that the decision to warn in

ways other than signs was a “balancing of social, economic, and political policies” and that “the

exercise of discretion in determining what safety measures to implement also is shielded from

judicial review.” Id. at 955. Thus, the court found the decision grounded in public policy and

within the exemption. Id. Just like in Zumwalt, Wu determined not to eliminate all warnings, but

to pick some and forgo others after balancing resource allocation with visitor safety. Ex. A at 1–

2. Kiehn also saw the NPS delegate warnings to its employees, much like Wu delegated the

warnings to the Rangers, and the court found the lack of signs there grounded in public policy.

Kiehn, 984 F.2d at 1106. The Tenth Circuit has said that when some warnings exist it is better

“to view the failure to provide additional warnings as a policy-based decision than in cases

where the government has failed to provide any warning at all.” Clark, 695 Fed. Appx. at 388.

Kovacs may point to where the Tenth Circuit has found a lack of signs to be outside the

exemption. see e.g. Smith v. United States, 546 F.2d 872, 876 (10th Cir. 1976). However, the

Tenth Circuit has addressed these cases, noting that all involved a separate decision “not

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connected to the policy decision which created the hazard.” Zumwalt, 928 F.2d at 955. In one, a

man was killed by a boat in a non-swimming area of a lake where no warning sides about

hazards were posted. Boyd v. United States, 881 F.2d 895, 897 (10th Cir. 1989). The Tenth

Circuit found the government’s decision not to zone the area for swimming discretionary, but

that the decision to have no warnings about the area did not necessarily follow from it. Id. What

the Tenth Circuit finds dispositive is if “the decision in the instant case not to place warnings...

cannot be divorced from the policy decision” that underlies it. Zumwalt, 928 F.2d at 955. In

Zumwalt, the Management Guidelines of the park emphasized preserving natural beauty, and it

was this policy that the NPS considered when deciding to not place warning signs. Id. The Tenth

Circuit could not find the decision severable from the policy considerations, since evidence

showed they underlay the decision. Similarly, Wu’s sign removal plan is difficult to divorce from

the larger policy scheme in the PCS, which gives Park Managers discretion in making plans for

visitor safety and resource management. Ex. C at 6. Wu’s position requires choosing solutions to

problems, Ex. C at 5, and he created the plan with his duties to “develop plans for the safety of

visitors” and draft “plans for resource management activities” in mind, Ex. C at 6. It is unlikely

the court will find Wu’s decision severable from the discretion the underlying policy grants.

Conclusion

The court is unlikely to dismiss Count I, since the Rangers’ duties establish that they

were within their scope of employment when they drunkenly removed the signs, and because

their intoxication, motive, and unauthorized acts would be unlikely to remove them from it. The

court is likely to dismiss Count II though, since Wu’s duties establish a discretionary ability to

create the plan, and because the considerations of safety and resource management ground the

plan in public policy.

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