## Facts

- Ben Johnson and three companions climbed Buck Mountain in Grand Teton National Park on June 28, 1987, after obtaining a required climbing permit.
- The group had mixed experience; Johnson was the least experienced and had no technical climbing experience.
- The ascent and planned descent routes were regarded as nontechnical, but Johnson became separated during descent, strayed off route, fell, and suffered injury.
- After Johnson did not return, companions sought ranger assistance; the Park Service initiated a search, and Johnson’s body was located by helicopter the next morning; he died of hypothermia.
- The estate sued the United States under the Federal Tort Claims Act (FTCA), alleging negligence in (1) conducting the search-and-rescue effort and (2) failing to adequately regulate mountain climbing in the park.
- The record reflected no specific federal statute, regulation, or written park policy dictating how to regulate climbing or how to conduct rescue operations; the superintendent cited resource limits, feasibility, visitor expectations, and the inherently dangerous nature of climbing as reasons for minimal regulation.

## Issues

1. Whether FTCA claims challenging the National Park Service’s decisions about climbing regulation and the conduct of search-and-rescue operations are barred by the discretionary function exception, 28 U.S.C. § 2680(a).
2. Whether the challenged acts involved judgment or choice grounded in social, economic, or political policy, placing them within § 2680(a).

## Decision

- The Tenth Circuit affirmed judgment for the United States on the ground that the discretionary function exception applied, depriving the court of subject-matter jurisdiction.
- The court held that decisions about whether and how to regulate mountain climbing were discretionary and reflected policy considerations such as resource allocation, feasibility of competence testing, and preservation of an unregulated wilderness experience.
- The court held that decisions concerning the timing, scope, and manner of rescue operations likewise required discretionary judgments involving safety, resource allocation, terrain, weather, and operational prioritization.
- Because both negligence theories targeted protected discretionary choices, the complaint had to be dismissed for lack of jurisdiction; the court affirmed on this jurisdictional basis rather than the district court’s negligence-element analysis.

## Legal Principles

- The FTCA’s waiver of sovereign immunity does not extend to claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty.” 28 U.S.C. § 2680(a).
- Discretionary function analysis applies a two-step inquiry: (1) whether the conduct involves judgment or choice rather than a mandatory directive, and (2) whether the judgment is of the kind § 2680(a) shields because it is grounded in social, economic, or political policy.
- When no specific statute, regulation, or binding policy prescribes a course of action, agency decisions about regulating hazardous recreation and deploying rescue resources typically satisfy the “judgment or choice” requirement.
- Policy-based decisions about allocating limited personnel and funds, balancing safety and feasibility, and shaping visitor experience fall within the discretionary function exception and are not subject to tort liability under the FTCA.
- If the discretionary function exception applies, federal courts lack subject-matter jurisdiction and must dismiss the action without reaching duty, breach, or causation under state tort law.

## Conclusion

The court held that both the Park Service’s approach to mountain-climbing regulation and its rescue-related decisions were discretionary, policy-based choices protected by 28 U.S.C. § 2680(a), so the FTCA did not waive sovereign immunity and the wrongful-death action was dismissed for lack of subject-matter jurisdiction.


Johnson v. United States, 949 F.2d 332 (10th Cir. 1991)