PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2106
LAURIE L. WOOD,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:14-cv-00469-RAJ-TEM)
Argued: October 26, 2016 Decided: January 4, 2017
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Wilkinson and Judge Shedd joined.
ARGUED: Timothy Jon DeMore, DEMORE LAW FIRM, Syracuse, New York,
for Appellant. Kent Pendleton Porter, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF:
Matthew D. Green, Gibson S. Wright, MORRIS & MORRIS, P.C.,
Richmond, Virginia; Brittany E. Aungier, HISCOCK & BARCLAY, LLP,
Syracuse, New York, for Appellant. Dana J. Boente, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
NIEMEYER, Circuit Judge:
Laurie Wood, a City of Norfolk (Virginia) Sheriff’s Deputy,
was seriously injured during a training session on a Navy base
when she jumped from a training structure onto a set of mats,
landing in a gap between them. She commenced this action
against the United States under the Federal Tort Claims Act
(“FTCA”), alleging that Navy officers negligently allowed the
structure, particularly the mats placed adjacent to it, to
remain in a dangerous condition and failed to warn her of the
dangerous gap between the mats. The district court granted the
government’s motion to dismiss, concluding that the challenged
Navy conduct fell within the FTCA’s “discretionary function
exception” and therefore that Congress had not waived sovereign
immunity for Wood’s claim.
On appeal, Wood contends that her complaint alleged a
straightforward negligence claim under Virginia law, for which
the United States waived sovereign immunity in the FTCA.
Specifically, she argues that the Navy’s conduct was “not
discretionary in nature” so as to be excluded from the waiver of
sovereign immunity because it was not the sort of conduct that
the discretionary function exception was intended to protect.
Because we conclude that the Navy’s decisions regarding the
maintenance of its military bases for use by civilian law
2
enforcement involved policy judgments that Congress sought to
shield from tort liability under the FTCA, we affirm.
I
Wood was injured while using a piece of training equipment
located within the Naval Support Activity Hampton Roads,
Northwest Annex (“Northwest Annex”), a restricted access
military base of some 3,600 acres in Chesapeake, Virginia. The
Northwest Annex, which was owned and operated by the Navy, was
managed by two Navy instrumentalities -- the Marine Corps
Security Force Training Company and the Navy’s Center for
Security Forces.
By statute, the Department of Defense is authorized to make
military facilities such as the Northwest Annex available to
state and local civilian law enforcement officers for training
purposes, 10 U.S.C. § 372, and to train civilian officers to use
those facilities, id. § 373, so long as the civilian training
does not “adversely affect the military preparedness of the
United States,” id. § 376. A Department of Defense directive
and several military orders set forth policies regarding the use
of military facilities by civilian law enforcement generally,
and Standard Operating Procedures set forth procedures governing
law enforcement’s use of the Northwest Annex specifically.
3
Before any civilian law enforcement agency may use
Northwest Annex facilities for training, one of its officers
must qualify under a Marine Corps training program as a Range
Safety Officer. During that training, the civilian officer is
provided with excerpts of the Standard Operating Procedures,
which outline the officer’s duties as a Range Safety Officer.
The officer is instructed on how to schedule the facilities,
coach his fellow officers on the range, respond to accidents,
and perform other “basic duties.” The officer is also shown a
slideshow that admonishes all Range Safety Officers to
“REMEMBER! The [Range Safety Officer] is solely responsible for
the safety and the proper conduct of the training” at the Navy
facility. Once a civilian officer qualifies as a Range Safety
Officer, he may schedule use of the Northwest Annex for his law
enforcement agency by submitting a request form that specifies
the facilities and equipment being requested. This form must
then be approved by a Navy or Marine Corps official, depending
on which branch is responsible for the requested facility.
Sergeant Brad Ward of the City of Norfolk Sheriff’s Office
qualified as a Range Safety Officer in 2011, and in February
2012, he requested use of two facilities at the Northwest Annex
-- “Munro Village,” an outdoor tactical training facility
designed to resemble a city block, and the “Simunition House.”
Sergeant Ward’s request form did not include a request for use
4
of the “Ship Mockup,” although the form also listed that
facility as available. His request was approved by an officer
of the Marine Corps, which managed Munro Village.
The “Ship Mockup,” which is managed by the Navy and on
which Wood was injured, is located near Munro Village and is
within the same general area. That equipment, which the Navy
referred to as the “Ship in a Box” or the “mock-ship,” was a
prismatic, three-story structure designed to resemble a foreign
merchant ship. The Navy used the equipment to simulate ship-
boarding by having soldiers -- clad in armor and strapped into
safety harnesses -- climb a ladder onto the mock-ship’s third
deck. Several mats were placed beneath the ladder both to
recreate the difficulty of beginning a climb from an inflatable
boat and to provide additional fall protection if a soldier’s
harness were to fail.
On April 20, 2012, Wood and other officers, who shared
responsibility for training the Sheriff’s Office’s deputies,
arrived at the Northwest Annex in preparation for the training
exercises. As Wood and the other Sheriff’s Office instructors
walked through the Munro Village training facility, they
discussed using the mock-ship to create a “bail-out” scenario
for trainees to practice exiting a building at an elevated
height. They contemplated that the trainees would jump from the
mock-ship onto the mats below from the second story, a height of
5
some 20 feet. One instructor, seeking to demonstrate the
exercise, climbed up onto the mock-ship’s first story and jumped
out onto the mats without incident. Wood then climbed onto the
second story and jumped off. When she landed, however, two of
the mats separated, and she fell through the gap onto the
ground. The fall caused a burst fracture of her twelfth
thoratic vertebra, rendering her a paraplegic.
After Wood’s administrative claim for damages was denied by
the Navy, she commenced this action under the FTCA against the
United States. She alleged that the United States negligently
maintained the mock-ship in a dangerous condition by (1) failing
to secure a “top pad” to the mock-ship’s mats to prevent them
from separating; (2) failing adequately to inspect the condition
of the mock-ship and its mats; and (3) failing to warn her, as a
lawful invitee, of the dangerous condition created by the
possibility of mat separation. The government filed a motion to
dismiss Wood’s complaint, contending that the Navy’s challenged
conduct -- consisting of safety-related decisions regarding its
training facilities when used by civilian law enforcement
agencies -- fell within the FTCA’s discretionary function
exception and that therefore the United States could not be
sued. The district court agreed and entered an order dismissing
Wood’s complaint for a lack of subject matter jurisdiction.
6
After the court entered its order of dismissal, Wood filed
a motion to alter or amend the judgment under Federal Rule of
Civil Procedure 59(e), claiming that the district court’s
dismissal of her complaint without allowing for discovery
contravened our decision in Kerns v. United States, 585 F.3d 187
(4th Cir. 2009). The district court, however, found that Kerns
was inapplicable because “jurisdictional facts” regarding the
applicability of the discretionary function exception were not
“‘inextricably intertwined’ with the merits of Plaintiff’s
claim.” Accordingly, it denied Wood’s motion.
From the district court’s May 14, 2015 order dismissing her
complaint and its August 31, 2015 order denying her motion to
alter or amend the judgment, Wood filed this appeal.
II
“[N]o action lies against the United States unless the
legislature has authorized it.” Dalehite v. United States, 346
U.S. 15, 30 (1953).
In the FTCA, Congress waived sovereign immunity for claims
brought against the United States based on the negligence or
wrongful acts or omissions of its employees committed within the
scope of employment, accepting liability in the same manner and
to the same extent as a private individual would have under like
circumstances. 28 U.S.C. §§ 1346(b)(1), 2671-2680. This
7
waiver, however, is circumscribed by numerous exceptions,
including an exception for claims “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 Government, whether or not the discretion
involved be abused.” Id. § 2680(a) (emphasis added). Because
waivers of sovereign immunity must be strictly construed, the
plaintiff bears the burden of demonstrating jurisdiction and
showing that none of the FTCA’s exceptions apply. See Welch v.
United States, 409 F.3d 646, 651 (4th Cir. 2005).
In this case, the government challenged the district
court’s jurisdiction based on the discretionary function
exception set forth in § 2680(a), and therefore Wood had the
burden of demonstrating that that exception did not apply. To
carry her burden, she alleged that the United States’ creation
and maintenance of an unsafe condition at the mock-ship and its
failure to warn her of the condition were “not discretionary in
nature and therefore [were] not excepted as discretionary acts
from the government’s waiver of sovereign immunity.”
Acting on the government’s motion, the district court
dismissed Wood’s complaint, concluding that Wood did not carry
her burden. In reaching its conclusion, the district court read
Wood’s complaint to challenge the government’s conduct in “the
military’s maintenance decisions regarding the [mock-ship] as an
8
unauthorized military facility, as opposed to a military
facility that has been approved for civilian use.” It concluded
that
the government’s maintenance of the [mock-ship] when
it has not been approved for civilian use falls under
the [discretionary function exception] because it
implicates financial and staffing considerations.
Equipment and facility maintenance considerations, as
well as calculations balancing the benefit of
increased safety measures and increased costs,
objectively fall into the category of decisions that
are susceptible to policy analysis.
On appeal, Wood contends that her claim for premises
liability is a “garden variety” negligence claim that involves
the failure to make premises safe for invitees or to give them
warning of a known danger. She asserts that Congress did not
intend for these “run of the mill” acts to be shielded by the
discretionary function exception. She adds that the
government’s focus on the training facility’s purposes and the
Navy’s mission in maintaining the premises is “merely a
distraction.” She also argues that its focus is too broad and
general and, moreover, that the district court’s description of
her use of the mock-ship as “unauthorized” is not supported by
her allegations, which must be accepted at this stage in the
proceedings.
The government contends, on the other hand, that Wood’s
characterization of the conduct at issue is too narrow,
collapsing the discretionary function inquiry into the question
9
of negligence on the merits. The government asserts that Wood’s
complaint actually challenges government decisions regarding the
maintenance and inspection of, or the issuance of warnings
relating to, military training facilities used by civilian law
enforcement. Such decisions, it argues, are within the
discretionary function exception for which the government has
not waived immunity in the FTCA.
The determination of whether the discretionary function
exception applies requires application of a two-step analysis.
First, a court must determine whether the conduct in question
“involves an element of judgment or choice.” Berkovitz ex rel.
Berkovitz v. United States, 486 U.S. 531, 536 (1988). When a
statute, regulation, or policy prescribes the employee’s
conduct, the conduct cannot be discretionary and thus is
unprotected by the discretionary function exception. Id.; see
also United States v. Gaubert, 499 U.S. 315, 322 (1991); Seaside
Farm, Inc. v. United States, No. 15-2562, ___ F.3d ___, 2016 WL
7030629, at *3 (4th Cir. 2016). Second, when the challenged
conduct is the product of judgment or choice, the court must
still determine whether the decision made was “based on
considerations of public policy.” Berkovitz, 486 U.S. at 537.
This second step of the analysis is designed to prohibit courts
from “second guessing” decisions “grounded in social, economic,
and political policy through the medium of an action in tort.”
10
Gaubert, 499 U.S. at 323 (quoting United States v. S.A. Empresa
de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,
814 (1984)). And in this same vein, “when established
government policy, as expressed or implied by statute,
regulation, or agency guidelines, allows a Government agent to
exercise discretion, it must be presumed that the agent’s acts
are grounded in policy when exercising that discretion.” Id. at
324 (emphasis added). In short, the discretionary function
exception is driven by separation of powers concerns, shielding
decisions of a government entity made within the scope of any
regulatory policy expressed in statute, regulation, or policy
guidance, even when made negligently.
The analysis of whether the discretionary function
exception applies does not depend on whether the government
employee had subjective knowledge of his discretion or
subjectively intended to exercise it; the analysis must focus
objectively on “the nature of the actions taken and on whether
they are susceptible to policy analysis.” Gaubert, 499 U.S. at
325; see also Seaside Farm, 2016 WL 7030629, at *3; Baum v.
United States, 986 F.2d 716, 721 (4th Cir. 1993).
The analysis also does not depend on whether the conduct
was that of a high-level agency official making policy or a low-
level employee implementing policy. See Dalehite, 346 U.S. at
35-36. Rather, the analysis must focus solely on whether the
11
government conduct involved choice implicating policy. Gaubert,
499 U.S. at 323. Indeed, relying on a distinction between “day-
to-day” actions and “policymaking or planning functions” would
be inappropriate in light of the principle that “[d]iscretionary
conduct is not confined to policy or planning level. ‘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.’” Id. at 325 (alteration omitted) (quoting Varig
Airlines, 467 U.S. at 813).
Thus, in Baum v. United States, 986 F.2d 716 (4th Cir.
1993), we ordered dismissal of a suit alleging, in relevant
part, that the National Park Service negligently failed to
replace a deteriorating guardrail system that broke when the
plaintiffs’ car struck it. 986 F.2d at 718. We concluded that,
just as a statute gave the Park Service discretion to construct
the bridge without fear that courts would second-guess its
design choices, the FTCA shielded the agency’s “decision of how
and when to replace a major element of [that] substantial public
facility.” Id. at 724; see also Bowman v. United States, 820
F.2d 1393, 1395 (4th Cir. 1987) (holding, on similar facts, that
“[w]hether [the] decision grew out of a lack of financial
resources, a desire to preserve the natural beauty of the vista,
a judgment that the hazard was insufficient to warrant a
12
guardrail, or a combination of all three, . . . [it] is obvious
that the decision was the result of a policy judgment”).
Therefore, taking the facts alleged by Wood in this case as
defining the challenged government actions, see Gaubert, 499
U.S. at 325, and applying the two-step analysis to them, we must
determine, on an objective basis, whether the challenged
government conduct involved decisions based on considerations of
public policy.
Wood alleges, in essence, that pursuant to a request made
by the Norfolk Sheriff’s Office, the Navy authorized that Office
to conduct training exercises on the Navy base in April 2012.
She alleges that the Navy was negligent in failing to maintain
in a safe configuration the mats on which she was injured, by
failing to inspect the mats for the dangerous condition, and by
failing to warn invitees, such as Wood, about the dangerous
condition. In short, she makes a premises liability claim as an
invitee to a Navy military base, and we must decide therefore
whether these actions that she challenges are protected by the
discretionary function exception.
Applying the two-step analysis to this conduct, we
determine first whether the government conduct involved an
element of choice, which in turn requires the determination of
whether any federal statute, regulation, or policy prescribed
the conduct. See Berkovitz, 486 U.S. at 536. On this aspect of
13
the analysis, the parties apparently agree that there was no
mandate contained in any statute, regulation, or policy
regarding the maintenance, inspection, and warning with regard
to either the mats or the mock-ship. In responding to the
government’s motion to dismiss, Wood conceded that she was
unable to find any such statute, regulation, or military policy,
and she does not argue otherwise on appeal. In addition, the
government presented affidavits from a Navy captain, a Marine
Corps colonel, and the Range Manager at Northwest Annex, stating
that there is no policy directly governing such maintenance,
inspection, and warning procedures when the facilities are used
by a civilian law enforcement agency. Further, the Marine Corps
order governing range safety does not require the military to
take any specific safety precautions with respect to facilities
that are to be used by civilians. Instead, it requires only
that civilian agencies, who “may use [military] ranges at the
discretion of the installation commander,” must “comply with the
provisions of this regulation/order.” See Range Safety, Army
Reg. 385-63, MCO 3570.1C (2012). And the Standard Operating
Procedures that apply specifically to the Northwest Annex
prescribe no actions with respect to base safety. As a
consequence, the government conduct involving the safety of the
mock-ship and the mats required Navy personnel to make choices
or exercise judgment.
14
Even so, for the discretionary function exception to apply,
those choices or judgments must also have been “based on
considerations of public policy” and thus “of the kind that the
discretionary function exception was designed to shield.”
Berkovitz, 486 U.S. at 537. In addressing this second step of
the analysis, we look to the “objective,” “general” nature of
the challenged actions and decide whether they inherently
involved protected policy judgments. Baum, 986 F.2d at 720-21.
We note first that the statutory scheme governing civilian
use of military facilities sets out a basic policy tradeoff
between permissive civilian training and constrained military
resources. See Gaubert, 499 U.S. at 324 (“[T]he general aims
and policies of the controlling statute will [typically] be
evident from its text”). The statutes provide that the
Department of Defense may allow civilian law enforcement
agencies to use Navy facilities, 10 U.S.C. § 372, and may train
civilian officers “in the operation and maintenance of
equipment,” id. § 373. But they also instruct that civilian use
must not interfere with the nation’s “military preparedness.”
Id. § 376. There can be no doubt therefore that the Navy’s
first-order decision of whether to allow civilian use of its
bases at all is shielded by the discretionary function
exception.
15
In allowing civilian use of the Northwest Annex in the
particular circumstances of this case, the Navy also had to make
several additional decisions -- each under the umbrella of its
initial decision to allow civilians to use the base at all --
and these decisions were necessarily informed by the same policy
considerations expressed in the statutes. This is made evident
by the Navy’s internal policy documents covering civilian use of
the facility. See Gaubert, 499 U.S. at 324 (“[A]n agency may
rely on internal guidelines rather than on published
regulations”). For example, in deciding whether to authorize
use of its base by civilian officers, the Navy has chosen to
require that one of those officers qualify as a Range Safety
Officer, who is required to be “solely responsible for the
safety” of their civilian agency while training on the base. A
Navy policy manual also indicates that its officers should
provide assistance to local law enforcement “at the lowest cost
practicable.” Similar documents more generally set forth risk-
management frameworks for all Navy decisionmaking. See Chief of
Naval Operations Instruction 3500.39C (July 2, 2010). The
common thread running through the relevant statutes and policy
documents is a recognition that, whenever the Navy exercises its
statutory discretion to allow civilian agencies to use its
facilities, it must take into account in exercising its judgment
military preparedness, the safety of the civilian agencies, and
16
costs. This complicated balance is well illustrated here.
Given the designed purpose of the mock-ship and the mats, which
were intended only as backup protection for armored soldiers
climbing the ship in harnesses, it could be unjustifiably costly
to protect against and warn civilian trainees of the dangers
arising out of uses for which the facility was not designed.
See Baum, 986 F.2d at 722-24 (economic policy considerations
underlying bridge construction project encompassed subsequent
decisions involving bridge maintenance).
At bottom, the Navy’s decision to leave the mats near the
mock-ship in a certain condition, its allegedly infrequent
inspections of the mock-ship, its decision not to warn civilian
trainees itself about the condition of the ship, and its
decision to qualify the user’s agent as a Range Safety Officer
responsible for safety each fall comfortably within that
overarching policy of balancing open civilian use, civilian
safety, military preparedness, and costs. And “[w]hen
established governmental policy, as expressed or implied by
statute, regulation, or agency guidelines, allows a Government
agent to exercise discretion,” as here, “it must be presumed
that the agent’s acts are grounded in policy when exercising
that discretion.” Gaubert, 499 U.S. at 324 (emphasis added).
Wood argues that if the Navy’s maintenance decisions are
protected here, it is difficult to see how the United States
17
could ever be liable for injuries on government property. She
cites cases from courts in other circuits that have expressed
similar concerns in declining to extend the discretionary
function exception to particular premises-liability claims. In
our view, however, the requirement that shielded conduct be
taken pursuant to specific policies expressed in federal law
explains some of those courts’ reluctance to apply the
discretionary function exception in the particular circumstances
presented. For example, in Gotha v. United States, 115 F.3d
176, 178 (3d Cir. 1997), a Navy contractor’s employee slipped
and fell on a military base footpath. In the absence of any
statutory, regulatory, or internal policy evidence encompassing
the Navy’s decisions with respect to employee safety, the Gotha
court refused to endorse the government’s theory that its
conduct inherently involved balancing national security and
employee safety. Id. at 181-82.
The reasoning in Gotha, however, has little application
here, where the Navy’s maintenance decisions with respect to
facilities used by civilian law enforcement fall within the
overarching policies of a regulatory scheme that gives officers
discretion in how to implement that policy. In this case, where
Congress by statute and the Navy by internal policy have
established a regulatory mission of making military bases
available for civilian-law-enforcement training, the Navy’s
18
decisions affecting the safety of its bases for civilian
trainees should not be subjected to judicial second-guessing.
Were we to hold, for example, that Wood could challenge the
Navy’s decision not to place a warning sign near the mock-ship,
it would open the Navy to tort liability for every similar
decision made when allowing civilian law enforcement agencies to
use its facilities. The threat of tort liability would become a
tool to shape Navy policy, which is exactly what the
discretionary function exception seeks to avoid.
Wood also contends that the district court incorrectly
defined the government’s challenged conduct as “maintenance
decisions regarding the [mock-ship] as an unauthorized military
facility” -- a description that assumed, contrary to her claim,
that her use of the mock-ship was not authorized and thereby
dictated the court’s decision. To be sure, while the district
court did repeatedly express its assumption that the mock-ship
was unauthorized, its ultimate decision did not necessarily rest
on that assumption. The district court observed that “the
considerations that apply to this decision are magnified when
the issue is the military’s maintenance of unauthorized
facilities.” Moreover, its holding was grounded centrally on
the fact that the Navy exercised discretion with respect to
public policy. As the court stated:
19
In this case, the military has declined to adopt any
policy to conduct pre-training inspections in order to
ensure that requested facilities are safe for civilian
use. Instead, the responsibility to conduct pre-
training inspections is with the [Range Safety
Officer]. . . . The Court finds that [these matters
are susceptible to policy analysis] because these day-
to-day operational maintenance decisions regarding the
condition in which military facilities are to be left
in when they are not in use, implicate economic policy
in that they involve considerations such as allocation
of military resources.
Thus, while the district court ruled with the assumption that
the mock-ship’s use was unauthorized, its reasoning applied
equally to a situation where use of the mock-ship was
authorized.
In any event, whether use of the mock-ship was authorized
or not does not implicate whether the district court had
jurisdiction under the FTCA. As we have pointed out, the
permissive use of the Navy’s training facilities by civilian law
enforcement is covered by policies announced in statutes,
regulations, and orders, and officers’ implementation of these
policies through decisions with respect to the mock-ship and the
mats is therefore protected by the discretionary function
exception.
At bottom, we conclude that the government’s challenged
conduct here falls within the FTCA’s discretionary function
exception and therefore that the district court correctly
concluded that Congress did not, in the FTCA, waive the
20
sovereign immunity of the United States for Wood’s negligence
claim.
III
Wood also contends that the district court abused its
discretion in denying her motion to amend the judgment under
Federal Rule of Civil Procedure 59(e) to allow her to engage in
jurisdictional discovery, as provided in Kerns, 585 F.3d 187.
She argues in particular that the district court should have
allowed discovery of whether her use of the mock-ship was
unauthorized, which “weighed heavily upon the [District] Court’s
analysis.”
In Kerns, we reversed an order dismissing a plaintiff’s
complaint under Rule 12(b)(1) because the facts supporting FTCA
jurisdiction -- bearing on whether the defendant was driving
within the scope of her employment -- were “inextricably
intertwined” with the merits of the plaintiff’s tort claim. 585
F.3d at 195. The Kerns decision sought to ensure that
plaintiffs facing a motion to dismiss were not unfairly deprived
of the additional “procedural safeguards” in Rule 56 (governing
summary judgment) when the merits of their claims are bound up
with jurisdictional issues. Id. at 195-96.
Kerns, however, does not apply here. As explained above,
the application of the discretionary function exception does not
21
turn on whether Wood was authorized to use the mock-ship. That
fact would indeed be relevant to the merits of Wood’s tort
claim. But it is irrelevant to subject matter jurisdiction.
See Seaside Farm, 2016 WL 7030629, at *3. Accordingly, we
conclude that the district court did not abuse its discretion in
refusing to open discovery to the merits issue in this case.
* * *
For the reasons given, the district court’s order
dismissing Wood’s complaint for lack of subject matter
jurisdiction and its order denying her Rule 59(e) motion are
AFFIRMED.
22