UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELLEN HIBBLE, Mrs.,

Plaintiff-Appellant,

v. No. 96-2180

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-96-465-A)

Argued: October 27, 1997

Decided: January 7, 1998

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,

and MERHIGE, Senior United States District Judge for the

Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion. Judge Hamilton wrote

a dissenting opinion.

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COUNSEL

ARGUED: Karl George Feissner, FEISSNER & SLATKIN, Washington, D.C.; Paul Howard Zukerberg, Washington, D.C., for Appellant. Thomas Mercer Ray, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen

F. Fahey, United States Attorney, James E. Macklin, Special Assistant

United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Ellen R. Hibble appeals the district court's dismissal of her Federal

Tort Claims Act suit for lack of subject matter jurisdiction pursuant

to Fed. R. Civ. P. 12(b)(1). Finding no error, we affirm.

I.

During a visit to Arlington National Cemetery, Ellen R. Hibble

("Ms. Hibble") fell down a set of stairs on the "Custis Walk," fracturing both ankles and breaking her right leg. The location on Custis

Walk where Ms. Hibble fell was covered with leaves which concealed

broken concrete and round concrete stones that had broken off from

the walkway. No signs or barriers were erected to warn the public of

any potential hazard.

Ms. Hibble subsequently filed suit for her injuries under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq.

Prior to trial, the government moved to dismiss her complaint for lack

of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1),

arguing that the action was barred under the discretionary function

exception to the FTCA, 28 U.S.C. § 2680(a). The district court

granted the government's motion, holding that the discretionary function exception applied in the instant case because (1) no federal statute, regulation, or policy specifically prescribed a course of action for

the Superintendent of Arlington National Cemetery, thus leaving the

operations of the cemetery to his discretion; and (2) the Superintendent's discretionary decisions were based on considerations of public

policy.

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II.

The FTCA provides a limited waiver of federal sovereign immunity for tort claims. United States v. Orleans , 425 U.S. 807 (1976);

Baum v. United States, 986 F.2d 716 (4th Cir. 1993). There are several enumerated exceptions to this waiver, however, the most relevant

for purposes of this appeal being the discretionary function exception.

28 U.S.C. § 2680(a).1 Pursuant to the discretionary function exception, a court lacks subject matter jurisdiction over any suit concerning

government conduct that (1) involves an element of judgment or

choice, and (2) is an action or decision based on considerations of

public policy. Berkovitz v. United States, 486 U.S. 531, 537 (1988);

United States v. Gaubert, 499 U.S. 315, 323 (1991). The requirement

of judgment or choice is not satisfied, however, if"`a federal statute,

regulation, or policy specifically proscribes a course of action for an

employee to follow,' because `the employee has no rightful option but

to adhere to the directive.'" Gaubert, 499 U.S. at 322 (quoting

Berkovitz, 486 U.S. at 536). In fact, if a regulation mandates particular

conduct and the government employee violates that regulation, "there

will be no shelter from liability because there is no room for choice

and the action will be contrary to policy." Id. at 324.

Ms. Hibble argues that with respect to her situation, there was an

applicable regulation or policy, namely Army Pamphlet ("AP") 290-

5, which required either the immediate repair of the hazardous conditions on Custis Walk, or the erection of barriers or warning signs.

Although it states in the introduction to AP 290-5 that "[t]his pamphlet describes the procedures and policies for the administration,

operation, and maintenance of Arlington National Cemetery," it also

explicitly states that AP 290-5 is merely "a guide" and not a mandatory directive. AP 290-5. Furthermore, Army Regulation ("AR") 25-

30 makes clear that pamphlets2 such as AP 290-5 are not included

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1 Under 28 U.S.C. § 2680(a), federal sovereign immunity is not waived

for:

[a]ny claim . . . based upon the exercise or performance or the

failure to exercise or perform a discretionary function or duty on

the part of the federal agency or an employee of the Government,

whether or not the discretion involved be abused.

2 AR 25-30 defines a Department of the Army Pamphlet as "[a] permanent instructional or informational publication." AR 25-30, ch. 2, § 2 at

111 (emphasis added).

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among the list of "publications that will be used to issue departmental

policy." AR 25-30, ch. 2, § 1, 2-2b. Thus, contrary to Ms. Hibble's

assertion, we find that AP 290-5 does not qualify as the sort of "federal statute, regulation, or policy" which would preclude the application of the discretionary function exception. There being no

mandatory statute, regulation, or policy specifically prescribing a

course of action for the Superintendent of Arlington National Cemetery, we find that the first prong of the Berkovitz-Gaubert test is satisfied.

As to the second prong--that the discretionary decisions be based

on public policy considerations--we concur with the district court's

findings. Decisions regarding leaf removal, the maintenance and

repair of grounds and walkways, the posting of warning signs, and the

closure of portions of the cemetery are inextricably tied to a variety

of public policy considerations--including balancing public access

with public safety, historical and cultural preservation, fostering a

somber and reflective atmosphere, and conserving natural as well as

fiscal resources.

Accordingly, we find that the district court correctly determined

that the discretionary function exception applies in the instant case

and properly granted the government's Motion to Dismiss.

AFFIRMED

HAMILTON, Circuit Judge, dissenting:

The government knew as far back as 1991 that Custis Walk presented a known danger to pedestrians using the walk. 1 Despite its

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1 The evidence on this point is indisputable. After performing a detailed

site inspection of Custis Walk at the request of the Superintendent of the

Cemetery, Hank Masser, an engineer with the Army Corps of Engineers,

concluded that "[d]ue to its deteriorated condition and heavy volume of

tourist traffic, the walk is a potential safety hazard to the public." (J.A.

176). Furthermore, just one month after Ms. Hibble fell, the Cemetery's

chief engineer, the Chief of the Army Corps of Engineers, the Chief of

the Army Contracting Division, and the Chief of the Army Construction

Operations Division all agreed to a written restoration plan for Custis

Walk. Specifically, that plan states: "Due to the deteriorated condition of

the walk it has become a safety hazard to the public." (J.A. 283).

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knowledge of the danger, the government failed to warn the public of

its existence, even though leaves covering Custis Walk in the fall and

winter months obscured the danger. As a consequence, Ms. Hibble,

who was at the Arlington National Cemetery visiting the graves of

some family members in December 1994, slipped and fell on the leaf

covered Custis Walk, the only pathway back to her car, breaking both

ankles and her right leg. As a result of her injuries, Ms. Hibble is disabled.

The majority concludes that the government met the second prong

of the Berkovitz-Gaubert analysis2 because "[d]ecisions regarding leaf

removal, the maintenance and repair of grounds and walkways, the

posting of warning signs, and the closure of portions of the cemetery

are inextricably tied to a variety of public policy considerations--

including balancing public access with public safety, historical and

cultural preservation, fostering a somber and reflective atmosphere,

and conserving natural as well as fiscal resources." Ante at 4. Critically, the majority ignores that this case involves a failure to warn.

FTCA failure-to-warn cases involve "considerations of safety, not

public policy." Faber v. United States, 56 F.3d 1122, 1125 (9th Cir.

1995). Accordingly, in FTCA failure-to-warn cases, the discretionary

function exception is limited "to those unusual situations where the

government was required to engage in broad, policy-making activities

or to consider unique social, economic, and political circumstances in

the course of making judgments related to safety." Id.

In this case, the government was not called upon to make broad

policy-based decisions and no unique circumstances are present. This

case is about the government's failure to warn Ms. Hibble of the danger that Custis Walk presented to pedestrians. The circumstances of

this case are no different than a tort claim against a private individual

who has failed to warn of a known danger on his or her property.

When, as in this case, the governmental negligence is essentially identical to that performed by a private citizen, no broad policy decision

or unique circumstances are present. Accordingly, the government

failed to meet the second prong of the Berkovitz-Gaubert analysis. I,

therefore, respectfully dissent.

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2 I agree with the majority that the government met the first prong of

the Berkovitz-Gaubert analysis.

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