United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2013 Decided December 13, 2013

Reissued January 15, 2014

No. 12-5287

DIANNE D. SLEDGE, CO-PERSONAL REPRESENTATIVE OF THE

ESTATE OF RICO WOODLAND, ET AL.,

APPELLANTS

v.

FEDERAL BUREAU OF PRISONS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:06-cv-00742)

Stephen V. Carey argued the cause for appellants. With him

on the briefs were David P. Donovan and Philip R. Seybold.

Heather Graham-Oliver, Assistant U.S. Attorney, argued

the cause for appellee. With her on the brief were Ronald C.

Machen, Jr., U.S. Attorney, and R. Craig Lawrence and

Michelle Lo, Assistant U.S. Attorneys.
2

Before: KAVANAUGH, Circuit Judge, and SENTELLE and

RANDOLPH, Senior Circuit Judges.

Opinion for the court filed by Senior Circuit Judge

RANDOLPH.

I

RANDOLPH, Senior Circuit Judge: This case arises from an

altercation between Rico Woodland, an inmate at the Federal

Correctional Institution in Allenwood, Pennsylvania, and a

fellow inmate, Jesse Sparks. At 12:37 p.m. on October 15, 2002,

Woodland and Sparks entered their cell. The two began to fight

and were initially evenly matched, but Woodland became unable

to defend himself (possibly because of an asthma attack).1

Woodland was discovered at 1:05 p.m. with severe injuries, and

was taken to a nearby hospital. He remained in a coma for

several months, suffered brain damage, lost the use of his limbs,

and eventually passed away on January 29, 2006.

Officer Richard Sweithelm was the corrections officer

assigned to Woodland’s housing unit on the afternoon of the

assault. Officer Sweithelm assumed his post at about noon. At

12:37 p.m., just before Woodland and Sparks began their fight,

Officer Sweithelm left the housing unit, and the prison began a

“controlled movement.” Controlled movements are regular tenminute periods during which inmates can move from one part of

the institution to another (for example, from housing units to a

recreation facility or the dining hall). Officer Sweithelm

remained outside the housing unit throughout this controlled

movement. He smoked a cigarette, chatted with a fellow

corrections officer, and watched inmate traffic entering and

1

 Sparks was charged with and pled guilty to the assault.
3

leaving the housing unit. He did not go back inside until 12:48

p.m., after the controlled movement was complete.

Woodland, and later his family and estate, claimed that the

government was liable for Woodland’s injuries because Officer

Sweithelm acted negligently by standing outside and failing to

monitor the interior of the housing unit during the assault. After

exhausting administrative remedies, Teresa Sledge, the personal

representative of Woodland’s estate, sued the government in the

district court.2

 Invoking the Federal Tort Claims Act, 28 U.S.C.

§§ 2671-2680, Sledge argued that the government was liable for

personal injury and wrongful death under Pennsylvania law.3

The government moved to dismiss the complaint. It argued

that Officer Sweithelm’s conduct was protected by the

discretionary function exception to the Federal Tort Claims Act,

28 U.S.C. § 2680(a), and that Sledge’s claims were therefore

outside the district court’s subject-matter jurisdiction. The

district court granted Sledge limited jurisdictional discovery

and, after a hearing, dismissed the complaint. The opinion of the

district court is reported at Sledge v. United States, 883 F. Supp.

2d 71 (D.D.C. 2012). Sledge timely appealed.

2

 The suit was originally filed by Steven Sledge as personal

representative of Woodland’s estate. Steven Sledge passed away after

the case was filed, and the district court granted a motion to substitute

party.

3

 The complaint also challenged Woodland’s medical treatment

after the assault. Those claims are not the subject of this appeal.

Liability under the Federal Tort Claims Act is determined “in

accordance with the law of the place where the act or omission

occurred,” 28 U.S.C. § 1346(b)(1); see id. § 2674, here, Pennsylvania. 
4

II

The Federal Tort Claims Act grants district courts exclusive

jurisdiction to hear certain tort claims against the United States,

including claims for “personal injury or death” based on the

“negligent or wrongful act[s] or omission[s]” of government

employees on the job. 28 U.S.C. § 1346(b)(1); see id. § 2674.

The Act’s broad jurisdictional grant is subject to exceptions. See

id. § 2680. Among those, the discretionary function exception

bars courts from hearing claims “based upon the exercise . . . or

the failure to exercise . . . a discretionary function or duty on the

part of . . . an employee of the Government, whether or not the

discretion involved [was] abused.” Id. § 2680(a). 

We have treated the exception as jurisdictional: if it applies

to the conduct of which a plaintiff complains, then “the district

court lacks subject matter jurisdiction over the case.” Sloan v.

U.S. Dep’t of Hous. & Urban Dev., 236 F.3d 756, 759 (D.C. Cir.

2001); see Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995). We

review de novo a district court’s decision whether the exception

applies. Loughlin v. United States, 393 F.3d 155, 162-63 (D.C.

Cir. 2004).

Courts apply the exception using the two-part

Gaubert/Berkovitz test. See United States v. Gaubert, 499 U.S.

315 (1991); Berkovitz v. United States, 486 U.S. 531 (1988);

Sloan, 236 F.3d at 759-60; Cope, 45 F.3d at 448-49. First, a

court must ask whether a “statute, regulation, or policy” directs

a government employee to conduct himself in a particular way.

Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536).

If so, then the employee’s conduct is not discretionary and the

exception does not protect him. Id. at 322, 324. In that case, the

court proceeds under the first clause of 28 U.S.C. § 2680(a), and

the government is immune from suit if and only if the employee

followed the directive. Cope, 45 F.3d at 448. If a written

directive is unambiguous then oral testimony cannot contradict
5

it. See Shansky v. United States, 164 F.3d 688, 691-92 (1st Cir.

1999). The testimony of government officials may be used to

clarify or establish a directive. See, e.g., Macharia v. United

States, 334 F.3d 61, 65-66 (D.C. Cir. 2003). 

If there is no “statute, regulation, or policy” on point, then

the employee’s conduct is discretionary and the inquiry moves

to step two. At step two the court must decide whether that

discretion is the type “that the discretionary function exception

was designed to shield.” Gaubert, 499 U.S. at 322-23 (quoting

Berkovitz, 486 U.S. at 536). The precise contours of this test are

difficult to pin down. Cope, 45 F.3d at 448-49. The paradigmatic

example of step two in action is negligent driving by a

government employee on the job. Gaubert, 499 U.S. at 325 n.7.

Although “driving requires the constant exercise of discretion,”

negligent driving is unprotected because it “can hardly be said

to be grounded in regulatory policy.” Id. Otherwise, we are left

with the Supreme Court’s statement that conduct is protected

only if it is “based on considerations of public policy” such as

“social, economic, [or] political” concerns. Id. at 323 (internal

quotation marks omitted). In that calculus, the nature of the

conduct, rather than the subjective intent of the actor, is what

matters. The court must ask whether the challenged actions are

amenable to public policy analysis, even if the actor was not

acting out of public-policy motives. Id. at 325. 
6

III

Sledge argues that Officer Sweithelm violated a mandatory

directive by failing to monitor the inside of the housing unit.

That directive is contained in what prison officials refer to as a

post order. Post orders are adopted by individual correctional

institutions,4

 and govern the conduct of corrections officers

while they serve at a particular post within the institution. Post

orders constitute government policy within a prison. See, e.g.,

Garza v. United States, 161 F. App’x 341, 345 (5th Cir. 2005).

The post order Sledge identifies requires all housing unit

officers to “continuously monitor inmate traffic within and

outside of the units” during controlled movements. Sledge

asserts that this post order is unambiguous in at least one

respect: whatever discretion Officer Sweithelm had, he was

required to visually inspect the interior of the housing unit

during the movement, which he altogether failed to do.

Therefore, Sledge concludes, Officer Sweithelm’s conduct is

unprotected at Gaubert/Berkovitz step one. 

Sledge’s position finds some support in the case law. Courts

have held that corrections-officer conduct is not protected when

it contravenes specific and unambiguous directives, such as

“account[] for and dispose[] of” “all razors” “at the end of the

shower,” Gray v. United States, 486 F. App’x 975, 978 (3d Cir.

2012), or “patrol the recreation yard” “[d]uring closed

movement[s],” Garza, 161 F. App’x at 344-45. But courts reach

a different conclusion when directives are phrased in more

general terms or when the terms themselves are ambiguous, such

as directives to “take disciplinary action at such times and to the

4

 Corrections officers are also subject to directives contained in

program statements, which are adopted by the Bureau of Prisons, and

institutional supplements, which apply program statements to

particular institutions.
7

degree necessary to regulate an inmate’s behavior,” Calderon v.

United States, 123 F.3d 947, 949 (7th Cir. 1997) (emphasis

omitted) (citing 28 C.F.R. § 541.10(b)(2)), or “[do] not . . .

allow[ inmates] to gather in large groups,” Garza, 161 F. App’x

at 345. Those directives provide discretion about how and when

a corrections officer should act, even if they have a readily

discernable objective. See Garza, 161 F. App’x at 345-46;

Calderon, 123 F.3d at 949-50. 

Although the question is close, we think the post order to

“continuously monitor inmate traffic within . . . the unit[]” falls

into the discretionary category. Sledge argues that the order

obligated Officer Sweithelm to look inside the housing unit.

That interpretation is plausible, though not required, when the

particular phrase is read in isolation. But read in context, the

order confers discretion on Officer Sweithelm to act as he did.

It directs him to monitor the flow of inmates into and out of the

housing unit without telling him precisely how to do so or where

to stand.

First, the order requires “continuous[]” monitoring of

inmate traffic both “within and outside of the units” (emphasis

added). Sledge’s interpretation, that “within” designates inmates

already inside the housing unit, appears to require the

impossible. A unit officer cannot continuously observe two

different locations, separated by a wall, at the same time. See

Sledge, 883 F. Supp. 2d at 85. We are not inclined to accept

Sledge’s “tortured reading” of the order. Id.

Second, the order refers to “inmate traffic.” In the context

of controlled movements, during which inmates can move from

one area of the institution to another, “inmate traffic” likely

refers to ingress, egress, and travel between buildings, rather

than inmates moving about the interior of housing units. If the

post order required Officer Sweithelm to monitor the inside of

the housing unit, it is difficult to see why it would be confined
8

to monitoring “traffic.” Inmates inside a housing unit could pose

a security risk whether or not they were moving around. If the

prison wanted to adopt Sledge’s interpretation, it would make

more sense to speak of “inmates within and outside of the units”

rather than “inmate traffic.”

Third, the remainder of the order undermines Sledge’s

interpretation. The penultimate sentence of the disputed

paragraph directs unit offers to “[m]aintain[] high visibility” in

order to “disrupt inmate chances of bringing contraband into the

unit.” That directive is not easily reconciled with Sledge’s

suggestion that Officer Sweithelm stand in the sallyport, an

approximately seven-foot-by-nine-foot room between the inner

and outer doors to the housing unit. Standing there would

minimize his visibility, according to the deposition testimony of

several prison officials.

 That same testimony generally approved of Officer

Sweithelm’s conduct and rejected Sledge’s interpretation of the

post order. Robert Womeldorf, the Operations Lieutenant,

explained that during a controlled movement “there’s no need to

monitor your inmates . . . inside your housing unit because

they’re not moving anywhere. You’re watching the inmates go

from point A to point B.” Other officials were more emphatic.

Stanley Yates, the Allenwood Warden at the time of the assault,

stated that housing offers were “directed” to “stand[] in the front

of the housing unit, . . . controlling th[e] compound,” and that to

do otherwise would have been irresponsible. “[I]f [a unit officer]

went back in and stayed in” there would be no “officer paying

attention to the flow of traffic.” To Warden Yates this would

constitute a dereliction of the officer’s duty.

We also reject Sledge’s interpretation of the post order

because it is contrary to sound public policy and prison security.

At the very least, these considerations lead us to conclude that

the order and the discretion it conferred were grounded in public
9

policy. The policy problem is one of resource allocation. In a

prison with 1,300-1,400 inmates it is impossible to keep each

inmate in view at all times. During a controlled movement, 60

to 70 percent of inmates are outside, and prison officials

therefore want more eyes watching inmate movement between

buildings. By standing outside during controlled movements,

unit officers can observe any events on the compound and

respond quickly by closing the doors and securing the housing

units. Monitoring inmate flow from the outside also helps

prevent inmates from moving contraband into the housing units,

which is a stated objective of the post order. Without housing

unit officers observing inmate traffic, the large group of inmates

moving between buildings would lack substantial supervision.

We are thus persuaded that the order provided Officer

Sweithelm with discretion to act as he did.

Sledge also argues that Officer Sweithelm violated orders

that he remain at his post when he left the housing unit and

stood several yards beyond the door. Sledge is correct that

corrections officers may not leave their posts. But the orders do

not identify the boundaries of the housing unit post, and the

record does not support Sledge’s claim that the boundaries are

the walls of the housing unit. When asked directly about the

issue, prison officials stated Officer Sweithelm’s post included

the area closely surrounding the housing unit. Relying on this

testimony, and the absence of any order directing Officer

Sweithelm to stand in a certain location, the district court

correctly found that Officer Sweithelm did not leave his post.

Sledge, 883 F. Supp. 2d at 84-85.

As to Gaubert/Berkovitz step two, Sledge argues that the

exception does not protect Officer Sweithelm because he was 

not actually exercising discretion. Instead, Sledge alleges,

Officer Sweithelm utterly neglected his duties. He stepped

outside to smoke, pace, and talk, but not to monitor inmates.

Sledge relies on other negligent guard cases. In those cases,
10

courts have held (or recognized the possibility in dicta) that the

discretionary function exception does not protect corrections

officers who are totally derelict of duty, for example, by packing

up personal belongings and leaving early, Chess v. United

States, 836 F. Supp. 2d 742, 751 (N.D. Ill. 2011), or by

completely failing to perform required inspections, Coulthurst

v. United States, 214 F.3d 106, 110-11 (2d Cir. 2000).

The validity of the negligent guard theory is an open

question in this court. Even if that theory could ever allow a

plaintiff’s claim to survive the discretionary function exception,

it would not do so here. The Supreme Court stated in

Gaubert that the “focus of the inquiry [at step two] is not on the

agent’s subjective intent in exercising the discretion . . ., but on

the nature of the actions taken and on whether they are

susceptible to policy analysis.” 499 U.S. at 325. We read the

negligent guard cases in light of that statement. The problem

with packing up personal belongings while still on the clock, for

example, is not that a particular corrections officer does so for

purely personal non-policy reasons. The problem is that there

can never be a public-policy reason for doing so. Thus the

decision to pack up early is unprotected.

Aside from subjective intent, the “nature of the actions” that

might give rise to liability in this case is that Officer Sweithelm

stood outside without looking into the housing unit. Even if

Sledge is correct that Officer Sweithelm so acted merely to

satisfy a nicotine craving, that motivation is irrelevant. The

decision to stand outside, as explained above, is “susceptible to

policy analysis.” Id. Prison officials testified to several reasons

why they would permit, or even advise, a housing unit officer to

stand outside and monitor the compound during controlled

movements. Officer Sweithelm’s conduct is therefore protected

at step two, as well as step one. See Sledge, 883 F. Supp. 2d at

86-87.
11

Because the discretionary function exception denies the

district court subject-matter jurisdiction over Sledge’s

complaint, the decision of the district court is

Affirmed.