## Facts

- Freda Fang was ejected from a vehicle after its brakes failed and it plunged down a steep embankment in Sequoia National Park.
- National Park Service Level IV EMTs promptly responded from a nearby ranger station, bringing medical kits, radio equipment, and a partially filled portable oxygen tank.
- At the scene, the EMTs cleared Fang’s airway and administered oxygen but did not immediately stabilize her spine.
- About fifteen minutes after the crash, Fang stopped breathing and the EMTs began CPR.
- After additional personnel arrived, Fang was placed in a cervical collar and strapped to a backboard; rescuers used ropes to transport her up the mountain while continuing CPR.
- Fang was pronounced dead; the stated cause of death was cervical fracture.
- Fang’s mother brought a wrongful-death action alleging, as to the United States under the FTCA, negligence in (1) spine stabilization, (2) CPR, and (3) bringing necessary equipment to the scene.
- The district court dismissed the FTCA claims for lack of subject-matter jurisdiction under the discretionary function exception and then dismissed remaining state-law claims after declining supplemental jurisdiction.

## Issues

1. Whether the FTCA discretionary function exception barred claims that National Park Service EMTs negligently (a) failed to stabilize Fang’s spine, (b) administered improper CPR, and (c) failed to bring necessary emergency equipment.
2. Whether the district court properly dismissed remaining state-law claims after dismissing all federal claims.

## Decision

- Affirmed the jurisdictional dismissal of the claim challenging emergency equipment allocation and deployment decisions.
- Reversed the jurisdictional dismissal of the claims alleging negligent spine stabilization and negligent CPR at the accident scene.
- Reversed the dismissal of supplemental state-law claims because federal claims remained.
- Remanded for further proceedings.

## Legal Principles

- The FTCA discretionary function exception applies when (1) the challenged conduct involves judgment or choice not controlled by mandatory directives, and (2) the judgment is susceptible to policy analysis of the type Congress intended to shield.
- Decisions about allocation, placement, and transport of emergency equipment and resources in a national park are policy-based discretionary judgments within the exception, even if alleged to be negligent.
- On-scene medical treatment decisions by federal EMTs (including spine stabilization and CPR technique) are operational professional judgments and are not protected merely because they involve discretion; absent policy-based considerations, they fall outside the exception.
- When some claims within the court’s original jurisdiction remain, dismissal of supplemental state-law claims under 28 U.S.C. § 1367(c)(3) must be reconsidered.

## Conclusion

The Ninth Circuit drew a distinction between policy-driven resource allocation (shielded by the FTCA discretionary function exception) and on-scene EMT medical care (not shielded), allowing the CPR and spine-stabilization negligence claims to proceed while barring the equipment-allocation claim and restoring the state-law claims for further consideration on remand.


Fang ex rel. Fang v. United States, 140 F.3d 1238 (9th Cir. 1998)