dissenting.
Because the majority applies the discretionary function exception in a way that drains the Federal Tort Claims Act of all meaning, I must respectfully dissent.
I.
The Federal Tort Claims Act specifically authorizes suits against the United States for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment,” when the United States, “if a private person, would be liable.” 28 U.S.C.A. § 1346(b)(1) (West 1993 & Supp. 2004). Thus, by enacting this legislation, Congress determined that “the United States should waive its historic defense of sovereign immunity and accept liability for the negligent conduct of government employees who are acting within the scope of their official duties.” 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3658, at 529 (1998) (footnotes omitted).
To “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy,” United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), the Act provides an exception to this waiver of sovereign immunity when government employees exercise a “discretionary function.” 28 U.S.C.A. § 2680(a) (West 1994). The statute does not define what constitutes a discretionary function. But, the Supreme Court has established a two-step inquiry to discern whether the discretionary function exception applies. See Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).1
As the first step, the court must determine whether the challenged conduct of a government employee “involves an element of judgment or choice” or whether “a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Id. (citation omitted). The parties agree that no statute, regulation, or policy mandated the course of action taken here; thus the challenged acts involve some “matter of choice.” See id.
Therefore, we must move to the second step of the Berkovitz inquiry, i.e., the determination of whether the challenged conduct is “of the kind that the discretionary function exception was designed to shield.” Id. The exception “protects only governmental actions and decisions based on considerations of public policy.” Id. at 537, 108 S.Ct. 1954 (citation omitted). Moreover, in order to obtain the discretionary function shield, discretionary acts must further a public policy that the particular “regulatory regime seeks to accomplish.” United States v. Gaubert, 499 U.S. 315, 325 *223n. 7, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).
With these principles in mind, I turn to the case at hand.
II.
In this case, Rawls R. Hawes alleges that he suffered severe and permanent injuries because, as a result of the negligence of government employee Staff Sergeant Raventos, the Scale of Integrity’s wooden plank was not firmly secured to its posts and there was inadequate warning of the danger. Hawes challenges SSgt. Rav-entos’ decisions to: (1) place the heavy plank on, but unsecured to, posts ten feet above ground, even though the bolts he had ordered were too short; (2) dismiss the work crew at noon without remedying this situation, leaving the plank in an unreasonably “unsafe and hazardous condition” over a long holiday weekend; and (3) fail to provide “adequate and reasonable warnings” of this hazardous condition. See Am. Compl. ¶¶ 11-16.2
Rather than argue that these allegedly negligent decisions of SSgt. Raventos were grounded in regulatory policy, the Government asserts that “the decisions made by the Marine Corps” were grounded in policy. Brief of Appellee at 22 (emphasis added). According to the Government, the proper focus is not “on the actions performed by one individual,” id. at 36, but on the “broader framework” of the Marine Corps’ decisions, id. at 46, which, it claims, involved “(1) the creation and implementation of safety protocols for the use and maintenance of military unique equipment, operations and systems; and (2) the development and administration of a recreational program on base.” Id. at 22.
Thus, the Government seeks to recast this case, focusing on the purportedly broad economic and political implications of the Marine Corps’ decision to repair the NATO obstacle course rather than on the specific conduct of the person doing the repairs. Perhaps the Government has adopted this strategy because it recognizes the weakness of its argument that the discretionary function exception applies to SSgt. Raventos’ decisions. In any event, the Supreme Court has rejected the Government’s approach. The Court has explained that the “basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee — whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability.” Varig Airlines, 467 U.S. at 813, 104 S.Ct. 2755 (emphasis added).
Accordingly, as the majority recognizes, the proper focus is not on the Marine Corps’ decision to repair the Scale of Integrity but on SSgt. Raventos’ specific conduct. See ante at 219 (explaining that “we focus on SSgt. Raventos’s decisions to cease the repair of the Scale of Integrity until after the weekend holiday and the alleged failure to warn adequately”).3 The *224majority, however, going beyond even what the Government was willing to argue, holds that SSgt. Raventos’ conduct “involves the allocation and management of scarce military resources,” thereby “impli-catfing] economic policy” and triggering the exception. Ante at 220. In other words, incredibly, the majority concludes that SSgt. Raventos’ decision to leave a large heavy plank used for exercise unbolted to its posts ten feet above the ground without an adequate warning over a long weekend was “grounded in regulatory policy.” See Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267.
In so holding, the majority allows the discretionary function exception to swallow the Federal Tort Claims Act’s waiver of sovereign immunity. This holding, of course, is at odds with the judgment of Congress, reflected in the Act, that the government will generally accept responsibility for the negligence of its employees when they act within the scope of their employment.
Moreover, the Supreme Court has expressly disavowed such a holding. The Court has instructed that “[tjhere are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function exception.” Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. These are acts that “cannot be said to be based on the purposes that the regulatory regime seeks to accomplish.” Id. For example, the Gaubert Court noted that if one of the federal bank regulators in the case before it, while on official business, drove his car negligently and thereby caused an accident, the discretionary function exception “would not apply.” Id. This is so, the Court explained, because even though “driving requires the constant exercise of discretion, the official’s decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.” Id.
So it is here. Certainly, deciding to leave a heavy wooden exercise plank unbolted to ten-foot high posts over a long weekend without adequate warning calls for the exercise of discretion. But the exercise of that discretion “can hardly be said to be grounded in” public policy. See id. SSgt. Raventos’ decisions may have tangentially “involve[d]” the allocation and management of military resources, ante at 220, just as the Gaubert driver’s negligent acts may have tangentially “involve[d]” the allocation and management of federal bank regulatory resources; but SSgt. Raventos’ decisions were no more “grounded in” military policy than the decisions of the negligent driver in Gaubert were “grounded in” banking regulatory policy. See Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. SSgt. Raventos’ decisions, like those of the negligent driver, were simply not judgments “of the kind that the discretionary function exception was designed to shield.” Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954.
The majority attempts to distinguish Gaubert (and other precedent) from the case at hand seemingly on the basis of its own determination that SSgt. Raventos was repairing “military equipment” somehow unique and “integral” to “train[ing] Marines for combat.” See ante at 219-20 n. 4, 220 & n. 5, 220-21. But, although the Government does contend that the obstacle constituted “military unique equipment,” the district court never resolved this question. See Hawes v. United States, 322 F.Supp.2d 638, 644 n. 9, 645 (E.D.Va.2004). Thus, to the extent that the majority resolves this factual issue in *225the first instance, it commits basic and fundamental error. See, e.g., 5B Wright & Miller, Federal Practice and Procedure: Civil 3d, § 1350, at 255-264 (2004) (and cases cited therein).
Furthermore, even if an appellate court had the power to make this factual finding, it would be impossible to do so fairly at this juncture. Whether the obstacle actually did constitute “military unique equipment” that was “integral” to “train[ing] Marines for combat” is so fiercely contested at present that further evidentiary development is necessary. The Marine Corps manual on which the Government relies defines “military-unique equipment” as “[equipment and systems that are unique to the national defense mission,” such as “military weapons, aircraft, ships, submarines, missiles and missile sites, early warning systems and sites, military space systems, ordnance, tanks, and tactical vehicles,” without mention of obstacles or exercise equipment. J.A. 652. Moreover, the record evidence of wide public access to the obstacle suggests that it was not “unique to the national defense mission”: in response to Hawes’ interrogatory asking the Government to identify all relevant restrictions on civilian access to the obstacle, the Government conceded that at the time of the accident, Camp Barrett, where the obstacle is located, was an “open base” that “anyone [could] drive on or off without passing an armed sentry post.” J.A. 1004.4
Finally, even if the majority could resolve in the first instance a hotly disputed factual question and could, fairly find on the present record that the obstacle constituted “military unique equipment,” it would make no difference in this case. The discretionary function exception would not shield SSgt. Raventos’ assertedly negligent repair decisions even if the obstacle he was ' repairing was “military unique equipment” any more than the exception would shield the Gaubert bank regulator’s negligent driving decisions even if the car he was driving was outfitted with “banking unique equipment” (for example, special computers). Like the Gaubert driver, SSgt. Raventos’ decision to leave a heavy exercise plank — even one “military unique” —-unbolted ten feet above the ground over a long weekend in the course of making ordinary repairs to it “can hardly be said to be grounded in” any public policy. Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. The majority’s utter failure to provide any legitimate basis for distinguishing SSgt. Raventos’ alleged negligence from that of the driver in Gaubert confirms its misguided approach to this case.
III.
Nor, contrary to the majority’s suggestion, does circuit precedent support its holding. In this circuit, we may have “interpreted the phrase ‘public policy’ broadly,” ante at 219, but we have never held that garden-variety housekeeping decisions like those at issue here are “grounded in”, public policy and protected by the discretionary function exception.
Indeed, examination of our precedent reveals that in every instance in which we have held the discretionary function exception to apply, the challenged government conduct constituted acts truly rooted in public policy. See, e.g., Minns v. United States, 155 F.3d 445, 452 (4th Cir.1998) (inoculation of military servicemen against potential biological and chemical attack); *226Baum, 986 F.2d at 723 n. 3, 724 (“design and construction” of guardrails over Baltimore-Washington Parkway); Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.1987) (“design and use” of guardrails and signs along Blue Ridge Parkway); see also Smith v. WMATA, 290 F.3d 201, 208-09 (4th Cir.2002) (utilization of escalator during “emergency situation” at METRO station). The challenged acts in these cases provide a striking contrast , to the acts at issue here. In fact, in Baum, we recognized this difference, noting that “not ... every maintenance decision of every government actor is so policy-based as to fall within the discretionary function exception.” 986 F.2d at 724. Today’s decision renders those words hollow.
In the case most similar factually to the one at hand, the Second Circuit concluded after careful analysis that a challenge to a government employee’s asserted negligence in ordinary maintenance of prison weight equipment was not barred by the discretionary function exception. See Coulthurst v. United States, 214 F.3d 106 (2d Cir.2000). In Coulthurst an inmate sued the government for serious injuries he sustained while exercising on a lateral pull-down machine when the “cable con-' necting, the steel pull-down ' bar to the weights snapped, bringing the bar down onto his shoulders and neck with approximately 270 pounds of force.” Id. at 107. The court held that “[ujnder various fair readings of the complaint,” the prisoner’s claim “involves negligence unrelated to any plausible policy objectives.” Id. at 111. The court explained that a government inspector’s laziness in failing to inspect the machine or “to notify the appropriate authorities upon noticing the damaged cable, are examples of negligence ... that do not involve ‘considerations of public policy.’ ” Id. (quoting Gaubert, 499 U.S. at 323, 111 S.Ct. 1267). “Such actions do not reflect the kind of considered judgment ‘grounded in social, economic, and political policy’” that the discretionary function exception shields “from ‘judicial “second guessing.”’” Id. (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755).
The same must be said with respect to SSgt. Raventos’ alleged negligence. It simply goes too far to hold that his decisions to hoist the obstacle’s plank onto its posts even though the bolts he had ordered were too short, to dismiss his crew at noon without remedying the situation, and to leave the plank unbolted' ten feet above ground over a long weekend without posting a prominent warning, reflect judgments “grounded in social, economic, and political policy” and shielded by the discretionary function exception.
Our sister circuits have recognized this, concluding that similar non-policy-based government acts are not protected by the discretionary function exception. Indeed, as one court has noted, a holding that “torts stemming from garden variety decisions fall outside the discretionary function exception is consistent with a primary motive behind the [Federal Tort Claims Act].” Cestonaro v. United States, 211 F.3d 749, 755 (3d Cir.2000) (holding asserted negligence in failure to provide adequate lighting or warning in federally controlled parking lot not shielded by discretionary function exception). Since “[tjhe question” as to whether the discretionary function exception applies “is not whether there is any discretion at all, but whether the discretion is grounded in the policy of the regulatory regime,” the proper analysis looks to “whether the decision is fraught with economic, political, or social judgments.” Cope v. Scott, 45 F.3d 445, 449-50 (D.C.Cir.1995) (internal quotation marks and citation omitted) (holding that asserted failure to post adequate warning signs along commuter road not shielded by discretionary function exception); see also *227Boyd v. United States, 881 F.2d 895, 898 (10th Cir.1989) (holding that asserted failure to warn of danger in offshore swimming area “does not implicate any social, economic, or political policy judgments with which the discretionary function exception properly is concerned”). The decisions of SSgt. Raventos challenged here are no more “fraught with economic, political, or social judgments,” Cope, 45 F.3d at 450 (internal quotation marks omitted), than were those at issue in Coulthurst, Cestonaro, Cope, or Boyd.
Finally, notwithstanding the majority’s suggestion to the contrary, SSgt. Raven-tos’ status as a military officer does not transform his ordinary workaday decisions into ones of “ ‘military discretion’” due special deference. Ante at 220 (quoting Minns, 155 F.3d at 451 (citing Tiffany v. United States, 931 F.2d 271, 277 (4th Cir.1991))). As the cases relied on by the majority make clear, deference is due only when “discretionary decisions are ones of professional military discretion,” like the determination that inoculation against biological or chemical attack is warranted, Minns, 155 F.3d at 451 (emphasis added), or the determination of what constitutes appropriate “defense of national borders.” Tiffany, 931 F.2d at 278. This case simply does not involve the exercise of “professional military discretion.”
As the Third Circuit held in rejecting the argument that the discretionary function exception barred a negligence claim against the government for the conduct of a Navy employee:
This case is not about a national security concern, but rather a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to the Navy’s mission as it is possible to get.
Gotha v. United States, 115 F.3d 176, 181 (3d Cir.1997) (holding discretionary function exception is no shield to claim of negligence in failing to provide handrails or adequate lighting on footpath). These words are equally applicable here. The Gotha Court found it “difficult to conceive of a case more likely to have been within the contemplation of Congress when it abrogated sovereign immunity” than the one before it. Id. at 182. An appropriate application of the discretionary function exception leads to precisely the same conclusion in this case.
IV.
The discretionary function exception serves the important purpose of protecting the government from tort suits that challenge its policy-making authority. But when the exception is used to shield the government from liability resulting from ordinary garden-variety negligence not “grounded in” any public policy, it subverts the very purpose of the Act. As the Supreme Court has recognized, certain decisions, even though made in connection wdth “official duties” and even though discretionary in nature, are not shielded by the discretionary function exception because “the decisions in exercising that discretion can hardly be said to be grounded in regulatory policy.” Gaubert, 499 U.S. at 325 n. 7, 111 S.Ct. 1267. The acts challenged here involve precisely such non-policy-grounded decisions. The majority’s contrary holding makes it hard to imagine any situation involving a discretionary decision other than one resulting in a traffic accident in which the government would be subject to suit for employee negligence. Clearly, that could not have been Congress’ purpose in enacting the Federal Tort Claims Act.
. We have never squarely considered the question of which party bears the burden of proof in a discretionary function case. I see no reason for us to decide that question here because the outcome of this case does not depend on its answer. But, contrary to the majority's suggestion, "[a]lthough the plaintiff bears the initial burden of proving subject matter jurisdiction under the Federal Tort Claims Act, most courts have concluded that the burden of proving the applicability of the discretionary-function exception falls upon the United States.” Wright, Miller & Cooper, supra, § 3658.1, at 639.
. At this stage of the proceedings, a court need not, and should not, consider whether SSgt. Raventos was in fact negligent. See, e.g., Duke v. Dep’t of Agriculture, 131 F.3d 1407, 1410 (10th Cir.1997) (noting that “in applying the discretionary function exception we do not consider whether the decision or nondecision was negligent or wrong”). For that reason, SSgt. Raventos’ substantive defense of his conduct, which the majority cites, seemingly with approval, see ante at 215 n. 1, is at this juncture irrelevant.
. This does not mean that a court should attempt to discern the "subjective intent” underlying challenged acts. See Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. Rather, we “look to the nature of the challenged decision[s] in an objective, or general sense, and ask whether th[ose] decision[s][are] one[s] *224which we would expect inherently to be grounded in considerations of policy.” Baum v. United States, 986 F.2d 716, 720-21 (4th Cir.1993).
. This evidence also flatly contradicts the testimony of SSgt. Raventos and Major Clarke— which the majority cites approvingly — regarding access to the obstacle course. See ante at 221.