1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-28-1997

Gotha v. United States

Precedential or Non-Precedential:

Docket 96-7442

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Gotha v. United States" (1997). 1997 Decisions. Paper 112.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/112
Filed May 28, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-7442 

SHEILA GOTHA, 

Appellant

v. 

UNITED STATES OF AMERICA, 

Appellee

APPEAL FROM THE 

DISTRICT COURT OF THE VIRGIN ISLANDS 

DIVISION OF ST. CROIX 

(D.C. Civ. No. 95-cv-00002) 

Argued April 7, 1997 

Before: BECKER, ROTH and WEIS, Circuit Judges

Filed May 28, 1997 

Diane M. Russell, Esquire (ARGUED) 

Holt & Russell 

2132 Company Street, Suite 2 

Christiansted, St. Croix 

U.S.A. Virgin Islands 00820 

Counsel for Appellant
Frank W. Hunger, Esquire 

Assistant Attorney General 

Robert S. Greenspan, Esquire 

Steve Frank, Esquire (ARGUED) 

United States Department of Justice 

Civil Division, Appellate Staff 

10th & Pennsylvania Avenue, NW 

Washington, D.C. 20530-0001 

James A. Hurd, Jr., Esquire 

United States Attorney 

Michael A. Humphreys, Esquire 

Office of United States Attorney 

1108 King Street, Suite 201 

Christiansted, St. Croix 

U.S.A. Virgin Islands 00820 

Counsel for Appellee

OPINION OF THE COURT 

WEIS, Circuit Judge. 

In this appeal we conclude that the United States Navy's 

failure to provide routine safeguards on a footpath leading 

to a structure under its control does not implicate the 

discretionary function exception to the Federal Tort Claims 

Act. See 28 U.S.C. § 2680(a). Therefore, the claim of 

personal injury based on the plaintiff's fall on the path 

satisfies the jurisdictional facet of the Act and the judgment 

dismissing the complaint will be reversed. 

At the time of the accident, plaintiff, Sheila Gotha, was 

an employee of the Martin-Marietta Company, which was 

performing work for the Navy at the land base of the 

Underwater Tracking Range located on St. Croix, Virgin 

Islands. The facility consists of upper and lower sites 

separated by a public road. 

On February 20, 1994, at approximately 5:00 a.m., 

plaintiff was walking from the upper portion of the facility 

to the lower sector to deliver material to an office trailer. 

 2 
She and a co-employee took the unpaved path that led 

directly to the trailer. The path was approximately fifteen to 

twenty feet in length and dropped downward at an angle of 

approximately fifty-four degrees. There was no lighting in 

the area, and as plaintiff descended the path in the 

darkness, she fell and injured her ankle. 

Plaintiff sued the United States under the Federal Tort 

Claims Act, 28 U.S.C. §§ 2671-80, alleging negligence on 

the part of the government in failing to provide a safe 

access to the trailer. Specifically, her complaint alleged that 

the government was negligent in failing to provide a 

stairway with handrails and for neglecting to provide 

sufficient lighting at the scene. The district court, however, 

dismissed the action based on lack of subject-matter 

jurisdiction, concluding that the government was protected 

by sovereign immunity because the conduct alleged came 

within the discretionary function exception to liability 

under the Federal Tort Claims Act, 28 U.S.C. § 2680(a). 

Based on testimony of Navy personnel, the court rejected 

the government's first defense of delegation of responsibility 

to Martin-Marietta for the condition of the premises. After 

analyzing the discretionary function exception, the court 

decided that no statute or regulation mandated the Navy to 

make the repairs or undertake the construction measures 

that plaintiff alleged were necessary. 

The court, however, determined that the exception 

applied because the Navy had based its decision not to 

improve the path on "a complex set of policy imperatives." 

These factors included "the effect of any construction on 

existing military hardware," as well as "budgetary 

constraints and safety concerns." In conclusion, the court 

stated: "A policy decision was made concerning the 

installation of steps on the [Underwater Tracking Range] 

premises and that decision is protected by the discretionary 

function exception." 

I. 

The government's motion to dismiss was based on 

Federal Rule of Civil Procedure 12(b)(1), lack of subjectmatter jurisdiction. Because the Navy's motion was not 

 3 
merely a facial challenge to the district court's jurisdiction, 

the court was not confined to allegations in the plaintiff's 

complaint, but could consider affidavits, depositions, and 

testimony to resolve factual issues bearing on jurisdiction. 

See Mortensen v. First Fed. Sav. & Loan Ass'n., 549 F.2d 

884, 891-92 (3d Cir. 1977) (because a trial court's very 

power to hear a case is at issue in a factual 12(b)(1) motion, 

a court is free to weigh evidence beyond the plaintiff's 

allegations). We exercise plenary review over the 

applicability of the discretionary function exception. Fisher

Bros. Sales, Inc. v. United States, 46 F.3d 279, 282 (3d Cir. 

1995) (en banc). 

II. 

The Federal Torts Claims Act is a partial abrogation of 

the federal government's sovereign immunity that permits 

suits for torts against the United States. The Act, however, 

imposes a significant limitation by providing that no 

liability may be asserted for a claim "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." 28 U.S.C. § 2680(a). 

The statute does not define "discretionary function or 

duty" and these terms have led to extensive litigation over 

the scope of the government's liability to tort claimants. It 

is clear that if the word "discretionary" is given a broad 

construction, it could almost completely nullify the goal of 

the Act. United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 808 (1984) 

(exception "marks the boundary between Congress' 

willingness to impose tort liability upon the United States 

and its desire to protect certain governmental activities 

from exposure to suit by private individuals."). 

The statutory language does not apply to every situation 

in which there is an actual option to choose between 

courses of action or inaction. Rather, as the Supreme Court 

has stated, the discretion that is immunized from "secondguessing" in the tort suit context applies to "legislative and 

administrative decisions grounded in social, economic, and 

political policy." Id. at 814. 

 4 
In Berkovitz v. United States, 486 U.S. 531, 537 (1988), 

the Court explained: "The exception, properly construed . . . 

protects only governmental actions and decisions based on 

consideration of public policy." The reason for "fashioning 

an exception for discretionary governmental functions" was 

to "protect the government from liability that would 

seriously handicap efficient government operations." Varig

Airlines, 467 U.S. at 814. 

In Berkovitz, the Court adopted a two-stage inquiry: First, 

a court must consider if "a federal statute, regulation or 

policy specifically prescribes a course of action for an 

employee to follow." 486 U.S. at 536. If so, "the employee 

has no rightful option but to adhere to the directive." Id. 

Consequently, there can be no lawful discretionary act. 

If circumstances imposing compulsion do not exist, a 

court must then consider whether the challenged action or 

inaction "is of the kind that the discretionary function 

exception was designed to shield." Berkovitz, 486 U.S. at 

536. Again, the Court emphasized that the "discretionary 

function exception insulates the Government from liability 

if the action . . . involves the permissible exercise of policy 

judgment." Id. at 537. 

In United States v. Gaubert, 499 U.S. 315, 325 (1991), 

the Court explained that for a plaintiff's claim to survive, 

the challenged actions cannot "be grounded in the policy of 

the regulatory regime." The Court stressed that the "focus 

of the inquiry is not on the agent's subjective intent in 

exercising the discretion conferred by statute or regulation, 

but on the nature of the actions taken and on whether they 

are susceptible to policy analysis." Id. 

Gaubert noted another limitation on the exception, citing 

the hypothetical situation where an agency employee

negligently drives an automobile in the course of his 

employment. Such action, although within the scope of 

employment, "cannot be said to be based on the purposes 

that the regulatory regime seeks to accomplish." 499 U.S. 

at 325 n.7. 

An examination of some of the situations where the 

discretionary function exception was applied may be helpful 

in understanding its scope. A federal agency decision to use 

 5 
a spot-checking process in inspecting aircraft was an 

exercise of policy discretion. Varig Airlines, 467 U.S. at 814- 

16. The supervision of day-to-day activities of a failing thrift 

institution was based on the public policy considerations of 

protecting the federal savings and loan insurance fund and 

federal oversight of the thrift industry. Gaubert, 499 U.S. at 

332. The decision of the Food and Drug Administration to 

refuse entry to suspected contaminated fruit was a 

discretionary action. Fisher Bros., 46 F.3d at 285. See also

Sea Land Servs. v. United States, 919 F.2d 888 (3d Cir. 

1990) (decision to use asbestos in construction of ships was 

a discretionary decision); General Public Utils. v. United

States, 745 F.2d 239 (3d Cir. 1984) (action of Nuclear 

Regulatory Commission in not reporting safety information 

was discretionary).1 

Against the background of this brief survey of the general 

principles governing the discretionary function exception, 

we move to the consideration of the circumstances present 

here. 

The plaintiff's complaint focuses on the lack of a 

stairway, railing, and lighting that made the steep path an 

unsafe means of access to the trailer in the lower lot. 

Although the district court referred to the Navy's "decision" 

not to provide such improvements, it is not clear from that 

court's opinion whether there had been an actual decision 

to forego those measures, or whether the "decision" was 

simply inaction. In a deposition, an employee of MartinMarietta stated that several years before plaintiff fell, the 

Navy had been asked on two or three occasions to build a 

stairway or install a handrail to ease travel down the path, 

but that these requests had been rejected. The government 

_________________________________________________________________ 

1. For a post-Gaubert commentary of the Federal Tort Claims Act, see

Harold J. Krent, Preserving Discretion Without Sacrificing Deterrence:

Federal Governmental Liability in Tort, 38 UCLA L. Rev. 871, 898 (1991) 

("The discretionary function exception should insulate all agency actions 

that, like congressional enactments themselves, reflect national policy"); 

William P. Kratzke, The Supreme Court's Recent Overhaul of the

Discretionary Function Exception to the Federal Tort Claims Act, 7 Admin. 

L.J. Am. U. 1, 32 (1993) ("The discretionary function exception should 

immunize government decisions only when cases present policy 

questions that do not lend themselves to resolution by adjudication"). 

 6 
produced testimony that no records of such requests were 

found in its files. 

The government submitted affidavits of several Navy

personnel, pointing out what considerations would be 

germane in "a decision" to construct a stairway or handrail. 

The use of the article "a" appears to be deliberate and 

indicates some uncertainty in the record. We gather that 

there is thus a disavowal of a "decision in fact," or perhaps 

merely a lack of knowledge, on whether the Navy actually 

did decide not to take measures to reduce the hazardous 

conditions in the pathway. 

It would appear that in any event, the action or inaction 

goes more to the issue of negligence rather than whether 

the issue of policy discretion is implicated. "The test is not 

whether the government actually considered each possible 

alternative in the universe of options, but whether the 

conduct was of the type associated with the exercise of 

official discretion." Smith v. Johns Manville Corp., 795 F.2d 

301, 308-09 (3d Cir. 1986); see also Fisher Bros., 46 F.3d 

at 284 (we ask only if the nature of the action taken, or not 

taken, is susceptible to policy analysis). 

A. 

The plaintiff's first line of attack is that the discretionary 

function exception is not really at issue because the Navy 

was bound to provide a stairway under the terms of the 

OSHA regulations. Under Berkovitz, regulations that give no 

options to a government agency take away the exercise of 

discretion. 486 U.S. at 536. If the OSHA regulations did 

apply, then the Navy could not rely on the discretionary 

function exception absent a statutory exemption. The 

district court held that by their own terms, however, the 

regulations cited by plaintiff applied to construction sites 

and not to an established facility like the Underwater 

Tracking Range. On the record before us, the district 

court's ruling was not erroneous. 

The district court also reviewed the evidence on the 

Navy's alternative theory that, by contract, Martin-Marietta 

was the entity responsible for the condition of the path to 

the trailer. The testimony of the Navy personnel did not 

 7 
support the government's theory of delegation to an

independent contractor. Based on that evidence, the district 

court properly rejected the delegation defense. We therefore 

proceed to the discretionary decision issue. 

B. 

In concluding that policy considerations were present in 

the Navy's action (or inaction), the district court relied on 

an affidavit submitted by the Navy's technical director for 

the Atlantic Fleet Weapons Training Facility. The affidavit 

stated that "[i]n evaluating a decision of whether to install 

an outdoor staircase and artificial lighting there are 

military, social and economic considerations involved." 

The pertinent factors were described as "a policy of 

insuring that United States Navy and allied forces can 

safely train with weapons in a realistic warfare 

environment." It was also alleged that sophisticated weapon 

systems could be damaged by construction near cables and 

conduits forming part of those systems. Social 

considerations included the safety of personnel using the 

facility and economic factors included budgetary 

constraints, procurement regulations, and the anticipated 

service life of the facility. 

The latter two categories in the affidavit are a 

compendium of considerations that conceivably could go to 

any decision by the Navy, from contracting for highly 

complex missiles to patching a hole in the floor of an office 

building. They are hardly the stuff that implicates the 

Navy's mission to provide a defense to the Nation or to 

enforce its diplomatic efforts. Consideration of tenets that 

sweep so broadly is of little use in the application of the 

discretionary function exception here. 

Certainly there is a distinction between contracting for 

the delivery of a weapons system costing millions or billions 

of dollars, and the material and labor costs of a few 

hundred dollars to construct a set of wooden steps, or even 

the lesser expenditures of erecting a barricade and directing 

personnel to use alternate routes. The safety of personnel 

cited by the Navy actually cuts against its position. Again, 

the Navy's proffered reasons are of such general application 

 8 
as to provide no assistance in determining whether the 

discretionary function exception fits the situation here. 

The third factor -- that of possible damage to cables that 

are integral to the monitoring devices in the weapons range 

-- could be a factor affecting the Navy's mission. The 

difficulty with the Navy's position is that there is no 

evidence that cables are under or near the path, and 

potential damage to them from construction of a stairway is 

highly speculative. Based on this record, there is no 

indication that any cables would be endangered by the 

minor improvements involved here. Moreover, location of 

the cables would have no relevance at all to placing a 

barricade and diverting pedestrian traffic to an alternate 

route. The Navy's contention is undermined further by the 

apparent use of the path by personnel for many years 

without hazard to the cables. 

In emphasizing matters so remote from the 

circumstances of this case as to be useless, the affidavit 

employs the fire power of a sixteen-inch gun to attack an 

irritating gnat. This case is not about a national security 

concern, but rather a mundane, administrative, gardenvariety, housekeeping problem that is about as far removed 

from the policies applicable to the Navy's mission as it is 

possible to get. In the words of the Supreme Court, the 

"challenged actions are not the kind of conduct that can be 

said to be grounded in the policy of the regulatory regime." 

Gaubert, 499 U.S. at 325. It is 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 us. 

The government cites a number of cases that it believes 

supports its position. We find them quite distinguishable 

from the matter at hand. In Ayer v. United States, 902 F.2d 

1038 (1st Cir. 1990), a civilian visitor was injured allegedly 

as a result of the Air Force's failure to attach a railing to a 

floor forming part of a missile launch site. The decision to 

omit railings was a deliberate choice to provide maximum 

flexibility in the event of a nuclear attack and, in addition, 

to maintain consistency of configuration with sites at other 

locations. Id. at 1043. The difference between that case and 

the one at hand is obvious. 

 9 
In Baum v. United States, 986 F.2d 716 (4th Cir. 1993), 

the Court concluded that an agency decision as to the 

material used in guardrails alongside a highway came 

within the exception. The Court decided that the choice to 

replace a major element of a substantial public facility was 

a discretionary decision of resource allocation. Id. at 722. 

Notably, the agency's decision affected the construction of 

the entire highway. 

A somewhat similar case is Bowman v. United States, 820 

F.2d 1393 (4th Cir. 1987), where the National Park Service 

decided not to place a guardrail alongside the Blue Ridge 

Parkway. The Court indicated that the agency's decision 

involved a balancing of safety, aesthetic, and environmental 

reasons, as well as available financial resources. Id. at 

1395. Although that case somewhat favors the Navy's

position here, we do not find it so similar in its factual 

background as to be a persuasive precedent for us. 

In Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995), another 

automobile accident case, the plaintiff alleged that the Park 

Service allowed a road surface to become slippery and failed 

to post warning signs. The Court concluded that the

decision to delay resurfacing of that road, in preference to 

others in need of repair, was a policy judgment to be made 

by the agency. Id. at 451. However, the Court decided that 

the government's failure to post warning signs was not a 

decision "fraught with public policy considerations" and, 

hence, was outside the exception. Id. See also Cassens v.

St. Louis River Cruise Lines, Inc., 44 F.3d 508 (7th Cir. 

1995) (coast guard inspectors use discretion when 

conducting inspections); Johns-Manville, 795 F.2d at 307- 

08 (government decision to sell asbestos "as is," without 

warnings, fell within exception). 

The government also relies on Hughes v. United States, 

110 F.3d 765 (11th Cir. 1997), where the plaintiff was shot 

by two assailants in the parking lot of a post office. The 

Court held that the decision of the postal authorities to 

limit security measures during hours when the post office 

was closed fell within the discretionary function exception. 

That case is easily distinguishable on its facts. 

We conclude that the discretionary function exception is 

not applicable in this case. Our holding on the issue of 

 10 
jurisdiction, of course, is not intended to intimate any view 

on the liability of the government on the merits. The 

judgment of the district court will be reversed and the case 

will be remanded for further proceedings. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

 11