* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Thomas M. Reavley, United States Senior C ircuit Judge for the Fifth Circuit, sitting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 27 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
ROSALIE GROTHAUS; SALLY K. TAYLOR, Plaintiff - Appellant, No. 00-7045

v. (E. District of Oklahoma) UNITED STATES OF AMERICA,

Defendant - Appellee. (D.C. No. 99-CV-80-P)

ORDER AND JUDGMENT *
Before KELLY , McWILLIAMS , and REAVLEY ** , Circuit Judges. Native Americans Rosalie Grothaus and Sally Taylor appeal from dismissal for lack of subject matter jurisdiction of their ac tion against the federal government. Below, they alleged that a Department of the Interior attorney committed malpractice by taking a litigating positi on contrary to their interests in a pleading he filed for the Department in a garnish ment proceeding. On appeal,1 28 U.S.C. § 2680(a).
2 34 F.3d 968, 972-73 (10th Cir. 1994).
3 Id. at 972.
4 Id. at 973 (quoting Berkovitz v. United States , 486 U.S. 531, 537 (1988)).
5 Ch. 458, 61 Stat. 732 (also known as the Stigler A ct). -2- they claim that the district court erroneously appl ied the discretionary function exception of the Federal Torts Claims Act (FTCA) 1 in dismissing their action. We agree with the district court that the discretio nary function exception applies in this case. In Black Hills Aviation, Inc. v. United States , 2 we explained that the discretionary function exception involves a two-pro nged analysis. Under the first prong, the court “must determine whether a specific and mandatory regulation, statute or policy requires a particular course of a ction.” 3 If so, the exception does not apply. If there is no such mandate, the court must proceed to the second prong and “determine whether the discretion involve d in the governmental act . . . [was] ‘based upon considerations of public policy.’ ” 4 Under the first prong of the analysis, Grothaus andTaylor argue that the Act of August 4, 1947 (1947 Act), 5 and the federal government’s general trust obligations mandated that the government represent their interests in the garnishment proceeding. But we agree with the district court that the garnishment6 Ch. 115, 44 Stat. 239.
7499 U.S. 315, 324 (1991).
8 25 C.F.R. § 16.6 authorizes attorneys appearing in state court under § 16.3 to take such actions as the Secretary of the Interi or could take were he appearing personally. -3- proceeding did not constitute the type of conveyanc e of land contemplated by the 1947 Act and that nothing in the government’s trustobligations required it to represent Grothaus or Taylor’s interests in the pro ceeding. Rather, the government’s appearance in the proceeding was discr etionary under section 3 of the Act of April 12, 1926 (1926 Act), 6 and under 25 C.F.R. § 16.3. Furthermore, no claim can be made that any regulation, statute o r policy required the government to take any specific position in the pro ceeding. Thus, we proceed to the second prong of the analysis. Under the second prong, Grothaus and Taylor argue that the position the Department took in the garnishment proceeding did n ot implicate public policy. But in United States v. Gaubert , 7the Supreme Court concluded that the existence of a regulation conferring discretion on a governme nt employee creates a “strong presumption” that the exercise of that discretion i s grounded in policy. 25 C.F.R. § 16.3 confers such discretion here. 8 Grothaus and Taylor cannot overcome this presumption. Accordingly, the judgment of the district court is AFFIRMED.-4- ENTERED FOR THE COURT Thomas M. Reavley Senior Circuit Judge