## 1997 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

5-28-1997 

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D ock e t 96-7442

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. e du/thir dc ir c uit_1997/112Filed 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 AppellantFrank 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 N avy'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 Tor t Claims

Act. See 28 U.S.C. § 2680(a). Therefore, the claim of personal injury based on the plaintiff's fall on th e path satisfies the jurisdictional facet of the Act and t he judgment dismissing the complaint will be reversed.

At the time of the accident, plaintiff, Sheila Goth a, was an employee of the Martin-Marietta Company, which w as performing work for the Navy at the land base of th e Underwater Tracking Range located on St. Croix, Vir gin Islands. The facility consists of upper and lower s ites 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 offic e trailer.

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

directly to the trailer. The path was approximately fifteen to twenty feet in length and dropped downward at an an gle of approximately fifty-four degrees. There was no ligh ting in the area, and as plaintiff descended the path in th e 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 negligen ce 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 provi de sufficient lighting at the scene. The district cour t, however, dismissed the action based on lack of subject-matte r jurisdiction, concluding that the government was pr otected by sovereign immunity because the conduct alleged c ame within the discretionary function exception to liab ility under the Federal Tort Claims Act, 28 U.S.C. § 2680 (a).

Based on testimony of Navy personnel, the court rej ected the government's first defense of delegation of res ponsibility to Martin-Marietta for the condition of the premise s. 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 meas ures 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 impera tives." These factors included "the effect of any construct ion on existing military hardware," as well as "budgetary constraints and safety concerns." In conclusion, th e court stated: "A policy decision was made concerning the installation of steps on the [Underwater Tracking R ange] premises and that decision is protected by the disc retionary function exception."

I.

The government's motion to dismiss was based on Federal Rule of Civil Procedure 12(b)(1), lack of s ubjectmatter jurisdiction. Because the Navy's motion was not

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

the court was not confined to allegations in the pl aintiff's complaint, but could consider affidavits, depositio ns, and testimony to resolve factual issues bearing on juri sdiction.

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 plaint iff's allegations). We exercise plenary review over the applicability of the discretionary function excepti on. 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 abrogatio n of the federal government's sovereign immunity that pe rmits 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 t he exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a f ederal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 268 0(a).

The statute does not define "discretionary function or duty" and these terms have led to extensive litigat ion over the scope of the government's liability to tort cla imants. It is clear that if the word "discretionary" is given a broad construction, it could almost completely nullify th e goal of the Act. United States v. S.A. Empresa de Viacao Ae rea Rio Grandense (Varig Airlines) , 467 U.S. 797, 808 (1984) (exception "marks the boundary between Congress' willingness to impose tort liability upon the Unite d States and its desire to protect certain governmental acti vities from exposure to suit by private individuals.").

The statutory language does not apply to every situ ation in which there is an actual option to choose betwee n courses of action or inaction. Rather, as the Supre me Court has stated, the discretion that is immunized from " secondguessing" in the tort suit context applies to "legi slative and administrative decisions grounded in social, econom ic, and political policy." Id . at 814.

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

the Court explained: "The exception, properly const rued . . . protects only governmental actions and decisions ba sed on consideration of public policy." The reason for "fa shioning an exception for discretionary governmental functio ns" was to "protect the government from liability that woul d 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, regula tion or policy specifically prescribes a course of action f or an employee to follow." 486 U.S. at 536. If so, "the e mployee has no rightful option but to adhere to the directi ve." Id

. Consequently, there can be no lawful discretionary act.

If circumstances imposing compulsion do not exist, a court must then consider whether the challenged act ion or inaction "is of the kind that the discretionary fun ction exception was designed to shield." Berkovitz , 486 U.S. at 536. Again, the Court emphasized that the "discreti onary function exception insulates the Government from li ability if the action . . . involves the permissible exerci se 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 p olicy of the regulatory regime." The Court stressed that the "focus of the inquiry is not on the agent's subjective int ent in exercising the discretion conferred by statute or r egulation,

but on the nature of the actions taken and on wheth er 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 h is employment. Such action, although within the scope of employment, "cannot be said to be based on the purp oses that the regulatory regime seeks to accomplish." 49 9 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 decisi on to use

5a 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 f ailing thrift institution was based on the public policy consider ations of protecting the federal savings and loan insurance f und and federal oversight of the thrift industry. Gaubert , 499 U.S. at 332. The decision of the Food and Drug Administrati on 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 infor mation was discretionary).1

Against the background of this brief survey of the general principles governing the discretionary function exc eption, we move to the consideration of the circumstances p resent
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 f rom that court's opinion whether there had been an actual de cision 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 bu ild a stairway or install a handrail to ease travel down the path, but that these requests had been rejected. The gove rnment

___________________________________________________ ______________

1. For a post-Gaubert

commentary of the Federal Tort Claims Act, see Harold J. Krent, Preserving Discretion Without Sacr ificing Deterrence: Federal Governmental Liability in Tort , 38 UCLA L. Rev. 871, 898 (1991) ("The discretionary function exception should insul ate all agency actions that, like congressional enactments themselves, ref lect national policy"); William P. Kratzke, The Supreme Court's Recent Over haul of the Discretionary Function Exception to the Federal Tor t Claims Act , 7 Admin. L.J. Am. U. 1, 32 (1993) ("The discretionary functi on exception should immunize government decisions only when cases prese nt policy questions that do not lend themselves to resolution by adjudication").

6produced 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 b e 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 act ually

did decide not to take measures to reduce the hazar dous conditions in the pathway.

It would appear that in any event, the action or in action goes more to the issue of negligence rather than wh ether the issue of policy discretion is implicated. "The test is not whether the government actually considered each pos sible alternative in the universe of options, but whether the conduct was of the type associated with the exercis e 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 di scretionary function exception is not really at issue because t he 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 exerci se of discretion. 486 U.S. at 536. If the OSHA regulation s did apply, then the Navy could not rely on the discreti onary function exception absent a statutory exemption. Th e district court held that by their own terms, howeve r, the regulations cited by plaintiff applied to construct ion sites and not to an established facility like the Underwa ter Tracking Range. On the record before us, the distri ct court's ruling was not erroneous.

The district court also reviewed the evidence on th e 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 di d not

7support 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 prese nt in the Navy's action (or inaction), the district court relied on an affidavit submitted by the Navy's technical dire ctor for the Atlantic Fleet Weapons Training Facility. The a ffidavit stated that "[i]n evaluating a decision of whether to install an outdoor staircase and artificial lighting there are military, social and economic considerations involv ed."

The pertinent factors were described as "a policy o f insuring that United States Navy and allied forces can safely train with weapons in a realistic warfare environment." It was also alleged that sophisticate d weapon systems could be damaged by construction near cable s and conduits forming part of those systems. Social considerations included the safety of personnel usi ng the facility and economic factors included budgetary constraints, procurement regulations, and the antic ipated 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 high ly 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 o r to enforce its diplomatic efforts. Consideration of te nets that sweep so broadly is of little use in the applicatio n of the discretionary function exception here.

Certainly there is a distinction between contractin g for the delivery of a weapons system costing millions o r billions of dollars, and the material and labor costs of a f ew 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 pe rsonnel cited by the Navy actually cuts against its positio n. Again, the Navy's proffered reasons are of such general ap plication

8as to provide no assistance in determining whether the

discretionary function exception fits the situation here.

The third factor -- that of possible damage to cabl es that are integral to the monitoring devices in the weapo ns range -- could be a factor affecting the Navy's mission. The difficulty with the Navy's position is that there i s no evidence that cables are under or near the path, an d potential damage to them from construction of a sta irway is highly speculative. Based on this record, there is no indication that any cables would be endangered by t he minor improvements involved here. Moreover, locatio n of the cables would have no relevance at all to placin g a barricade and diverting pedestrian traffic to an al ternate route. The Navy's contention is undermined further by the apparent use of the path by personnel for many year s without hazard to the cables.

In emphasizing matters so remote from the circumstances of this case as to be useless, the af fidavit employs the fire power of a sixteen-inch gun to att ack an irritating gnat. This case is not about a national security concern, but rather a mundane, administrative, gard envariety, 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 tha t 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 o f Congress when it abrogated sovereign immunity than the

one before us.

The government cites a number of cases that it beli eves supports its position. We find them quite distingui shable from the matter at hand. In Ayer v. United States , 902 F.2d 1038 (1st Cir. 1990), a civilian visitor was injure d 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 de cision to omit railings was a deliberate choice to provide ma ximum flexibility in the event of a nuclear attack and, i n 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.

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

the Court concluded that an agency decision as to t he material used in guardrails alongside a highway cam e within the exception. The Court decided that the ch oice to replace a major element of a substantial public fac ility was a discretionary decision of resource allocation. Id . at 722. Notably, the agency's decision affected the constru ction 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 deci sion involved a balancing of safety, aesthetic, and envi ronmental 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 tha t the Park Service allowed a road surface to become slippery a nd failed to post warning signs. The Court concluded that the decision to delay resurfacing of that road, in pref erence 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," w ithout warnings, fell within exception).

The government also relies on Hughes v. United Stat es , 110 F.3d 765 (11th Cir. 1997), where the plaintiff was shot by two assailants in the parking lot of a post offi ce. The Court held that the decision of the postal authorit ies to limit security measures during hours when the post office was closed fell within the discretionary function e xception. That case is easily distinguishable on its facts.

We conclude that the discretionary function excepti on is not applicable in this case. Our holding on the iss ue of

10jurisdiction, of course, is not intended to intimat e any view

on the liability of the government on the merits. T he 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

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