2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-10-2012

S.R.P. v. USA

Precedential or Non-Precedential: Precedential

Docket No. 10-4011

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 10-4011

______

S.R.P. (a minor),

by and through Maria Rivera Abunabba 

(as mother and next of kin)

S.R.P.,

 Appellant

v.

UNITED STATES OF AMERICA; 

NATIONAL PARK SERVICE, 

U.S. DEPARTMENT OF INTERIOR

______

On Appeal from the District Court

of the Virgin Islands – Appellate Division

Division of St. Croix

(D.C. No. 1-06-cv-00080)

District Judge: Honorable Raymond L. Finch

______

Argued December 5, 2011

Before: FISHER, GREENAWAY, JR. and

ROTH, Circuit Judges.
2

(Filed: April 10, 2012)

Pamela L. Colon (Argued)

27 & 28 King Cross Street

Phoenix Court Business Complex

Christiansted, St. Croix, USVI 00820

Counsel for Appellant

Thomas M. Bondy

Lowell V. Sturgill, Jr. (Argued)

United States Department of Justice

Civil Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Angela P. Tyson-Floyd

Office of United States Attorney

1108 King Street, Suite 201

Christiansted, VI 00820

Counsel for Appellees

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

S.R.P., a minor, appeals from an order of the District 

Court dismissing his claims for lack of subject matter 

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). 
3

The action arose out of a 2004 incident in which S.R.P. was 

bitten by a barracuda while playing near the shore of Buck 

Island Reef National Monument (“Buck Island Monument” or 

“the Monument”). S.R.P., through his mother, filed suit 

against the United States under the Federal Tort Claims Act 

(“FTCA”), 28 U.S.C. § 2671 et seq., alleging that the 

Government negligently failed to warn of the danger posed by 

barracudas to shallow water bathers. The District Court 

dismissed the case on the basis that the discretionary function 

exception to the FTCA deprived it of jurisdiction, and thus 

immunized the Government from suit. For the reasons set 

forth below, we will affirm.

I. Facts and Procedural History

On May 9, 2004, while sitting on the beach at Buck 

Island (“Buck Island” or “the Island”) with his feet in shallow 

water, then 12-year-old S.R.P. was bitten by a barracuda and 

suffered a severe laceration to his foot. His third and fourth 

toes were nearly severed and surgery was required to repair 

the damage. Buck Island is located 1.25 miles off the 

northeast side of the island of St. Croix in the U.S. Virgin 

Islands. It is a unit of the National Park System under the 

control and management of the National Park Service (“the 

NPS”). Prior to 2001, Buck Island Monument included Buck 

Island itself and 704 marine acres surrounding the island. In 

2001, President Clinton issued an executive proclamation 

expanding the boundaries of the Monument, designating the 

surrounding 18,869 marine acres as a protected area, and 

directing the Secretary of the Interior to “prohibit all 

extractive uses.” Proclamation No. 7392, 66 Fed. Reg. 7336 
4

(Jan. 17, 2001). Pursuant to this directive, in 2003, Buck 

Island and its surrounding waters were closed to fishing.

Buck Island is accessible only by watercraft, and is 

open to the public for recreational activities, such as 

swimming, picnicking, hiking, snorkeling, and scuba diving. 

Approximately 55,000 to 60,000 people visit each year. Most 

tourists travel to the Island via private concessionaries, which 

offer half-day or full-day trips. Visitors may also access 

Buck Island by private boat, but any owner of a vessel who 

wishes to visit must apply for an anchoring permit. At the 

time of application, boat owners receive a packet of 

information, including the Buck Island Reef Brochure (“the 

Buck Island brochure”), which provides general information 

about Buck Island, including natural hazards in the area. A 

portion of the brochure labeled “Safety Tips for Sea and 

Shore” states:

Reef and marine hazards: Shallows and reefs 

near shore contain sharp corals, stingrays, spiny 

sea urchins, fire coral, fire worms, and barbed 

snails. Cuts from marine organisms infect 

quickly, so clean and medicate them. 

Portuguese man-o-war and sea wasps, both 

stinging jellyfish, are rarely found here. 

Barracuda and sharks, if encountered, should be 

treated with caution but are not usually 

aggressive toward snorkelers.

The same information is posted, in both English and Spanish, 

on signs located at the picnic areas on the Island.
5

Barracuda is a species of fish indigenous to the 

Caribbean Sea and the waters around Buck Island. Although 

barracudas are not generally aggressive toward humans, it is 

believed that they may attack humans if they mistake a limb 

or other body appendage for prey. Prior to the attack at issue 

in this case, NPS officials were aware of only one other 

incident in the previous twenty-two years in which a 

barracuda had bitten a human at or around Buck Island. In 

that attack, which occurred sometime before 1999, a boat 

captain was bitten while sitting on the side of his boat with 

his feet dangling in the water. The NPS attributed the attack 

to the boat captain’s pouring fish oil in the water around his 

feet. At the time he was bitten, there were several snorkelers 

in the water nearby, none of whom were attacked.

On June 16, 2006, S.R.P., through his mother, brought 

a tort action against the United States under the FTCA, 

alleging that the NPS failed to adequately warn visitors about 

the dangers posed by barracudas, and that the NPS failed to 

properly staff Buck Island.1

 1 S.R.P. does not appeal the District Court’s dismissal 

of his negligent staffing claim.

 On October 27, 2009, the 

Government moved to dismiss the case for lack of subject 

matter jurisdiction under Federal Rule of Civil Procedure 

12(b)(1) on the basis that the FTCA’s discretionary function 

exception applied. After allowing discovery on the 

jurisdictional question, the District Court of the Virgin Islands 

granted the motion to dismiss on October 1, 2010, concluding 

that the discretionary function exception barred S.R.P.’s 

claims because NPS policies gave local NPS officials 
6

discretion to craft appropriate warnings regarding potential 

safety hazards, and the question of whether and to what extent 

to warn involved significant policy considerations. Perez v. 

United States, No. 06-0080, 2010 WL 3927628 (D.V.I. 

Oct. 1, 2010).

S.R.P. filed a timely notice of appeal. His primary 

contention on appeal is that the District Court erred in 

concluding that the discretionary function exception barred 

his claims because the NPS was aware that barracudas posed 

a danger to swimmers, and thus had a non-discretionary duty 

to warn. He also argues that the District Court failed to apply 

the relaxed standard required for factual challenges to subject 

matter jurisdiction under Rule 12(b)(1), and that the District 

Court improperly shifted to him the burden of proving the 

non-applicability of the discretionary function exception.

II. Jurisdiction and Standard of Review

S.R.P.’s complaint invoked the District Court’s 

jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), 

1367(a), and the FTCA, 28 U.S.C. §§ 2674 and 1346(b). We 

have appellate jurisdiction over an appeal from a dismissal for 

lack of subject matter jurisdiction under 28 U.S.C. § 1291. 

Because the Government’s motion presented a factual 

challenge to subject matter jurisdiction, the District Court was 

not confined to the allegations in S.R.P.’s complaint, and was 

entitled to independently evaluate the evidence to resolve 

disputes over jurisdictional facts. Turicentro, S.A. v. Am. 

Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002) (overruled 

on other grounds by Animal Sci. Prods., Inc. v. China 

Minmetals Corp., 654 F.3d 462 (3d Cir. 2011)); Mortensen v. 
7

First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 

1977). We exercise plenary review over the applicability of

the discretionary function exception. Merando v. United 

States, 517 F.3d 160, 163-64 (3d Cir. 2008). We review the 

District Court’s findings of fact related to jurisdiction for 

clear error. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 

2008). We exercise plenary review in determining whether 

the District Court applied the correct standard in evaluating a 

motion to dismiss under Federal Rule of Civil Procedure 

12(b)(1) and whether it placed the burden of proof on the 

proper party. See id.

III. Discussion

A. The Federal Tort Claims Act Framework

The United States, “as a sovereign, is immune from 

suit unless it consents to be sued.” Merando, 517 F.3d at 164 

(citing United States v. Mitchell, 445 U.S. 535, 538 (1980)). 

The FTCA is a “partial abrogation” of that immunity, Gotha 

v. United States, 115 F.3d 176, 179 (3d Cir. 1997), and 

permits suits against the United States for torts committed by 

“any employee of the Government while acting within the 

scope of his office or employment, under circumstances 

where the United States, if a private person, would be liable 

to the claimant in accordance with the law of the place where 

the act or omission occurred,” 28 U.S.C. § 1346(b)(1). The 

FTCA, however, “imposes a significant limitation,” Gotha, 

115 F.3d at 179, by providing that the provisions of 28 U.S.C. 

§ 1346 shall not apply to:
8

[a]ny claim based upon an act or omission of an 

employee of the Government, exercising due 

care, in the execution of a statute or regulation, 

whether or not such statute or regulation be 

valid, or 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).

This discretionary function 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.” United States v. S.A. Empresa de Viacao 

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

(1984). The exception “does not apply to every situation in 

which there is an actual option to choose between courses of 

action or inaction.” Gotha, 115 F.3d at 179. Rather, it 

immunizes from second-guessing “legislative and 

administrative decisions grounded in social, economic, and 

political policy.” Id. (citing Varig Airlines, 467 U.S. at 814).

As a threshold matter, before determining whether the 

discretionary function exception applies, a court must identify 

the conduct at issue. Merando, 517 F.3d at 165. The court 

must then follow a two-step inquiry to determine whether the 

discretionary function exception immunizes the government 

from a suit arising out of such conduct. Id. at 164. “First, a 
9

court must determine whether the act giving rise to the 

alleged injury and thus the suit involve[d] an ‘element of

judgment or choice.’” Id. (citing United States v. Gaubert, 

499 U.S. 315, 322 (1991)). If a “federal statute, regulation, or 

policy specifically prescribes a course of action for an 

employee to follow,” the exception does not apply because 

“the employee has no rightful option but to adhere to the 

directive.” Berkovitz v. United States, 486 U.S. 531, 536 

(1988). However, where a specific course of action is not 

prescribed, we proceed to the second step, which requires us 

to determine “whether the challenged action or inaction ‘is of 

the kind that the discretionary function exception was 

designed to shield.’” Gotha, 115 F.3d at 179 (quoting 

Berkovitz, 486 U.S. at 536). “Because the purpose of the 

exception is to prevent judicial ‘second-guessing’ of 

legislative and administrative decisions grounded in social, 

economic, and political policy . . . the exception protects only 

governmental actions and decisions based on considerations 

of public policy.” Gaubert, 499 U.S. at 323 (internal marks 

and citations omitted). 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. at 

325.

Although a plaintiff bears the burden of establishing 

that his claims fall within the scope of the FTCA’s waiver of 

the federal government’s sovereign immunity (i.e., that the 

requirements of 28 U.S.C. § 1346(b)(1) are met), the 
10

Government has the burden of proving the applicability of the 

discretionary function exception.2

 2 We recognize that at least one of our sister circuits 

holds that where the Government raises the discretionary 

function exception, the plaintiff bears the burden to prove that 

the exception does not apply. See Aragon v. United States, 

146 F.3d 819, 823 (10th Cir. 1998). Several other courts of 

appeals have declined to decide the issue. See St. Tammany 

Parish v. FEMA, 556 F.3d 307, 315 n.3 (5th Cir. 2009) 

(collecting cases). We acknowledge that the Supreme Court’s 

statement in United States v. Gaubert, 499 U.S. 315, 324-25 

(1991), that “[f]or a complaint to survive a motion to dismiss, 

it must allege facts which would support a finding that the 

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

to be grounded in the policy of the regulatory regime” creates 

some uncertainty as to where the Court intended to place the 

burden.

 Merando, 517 F.3d at 164.
11

B. The Applicability of the Discretionary 

Function Exception

We turn now to S.R.P.’s contention that the District 

Court erred in concluding that the challenged conduct is 

protected by the discretionary function exception.

1.

Before engaging in the two-part discretionary function 

analysis, we must identify the challenged conduct. Merando, 

517 F.3d at 165. S.R.P.’s complaint states:

 

However, absent an explicit statement from the 

Supreme Court that the plaintiff bears the ultimate burden, we 

continue to believe that the burden of proving the 

applicability of the discretionary function exception is most 

appropriately placed on the Government. Although the 

discretionary function exception is jurisdictional on its face, it 

is analogous to an affirmative defense. Therefore, just as a 

plaintiff cannot be expected to disprove every affirmative 

defense that a defendant could potentially raise, so too should 

a plaintiff not be expected to disprove every exception to the 

FTCA. Moreover, the Government will generally be in the 

best position to prove facts relevant to the applicability of the 

discretionary function exception. Our view is in accord with 

that of the U.S. Courts of Appeals for the Sixth, Seventh, and 

Ninth Circuits. See Prescott v. United States, 973 F.2d 696, 

702 (9th Cir. 1992); Carlyle v. United States, 674 F.2d 554, 

556 (6th Cir. 1982); Stewart v. United States, 199 F.2d 517, 

520 (7th Cir. 1952).
12

Defendant NPS created and or maintained a 

dangerous condition on Buck Island in that 

there were no signs on the premises of Buck 

Island warning visitors of the existence of 

barracudas and/or large predatory fish on or 

near the premises of Buck Island. . . . At all 

times relevant herein, Defendant NPS knew or 

should have known of the dangerous conditions 

it created on Buck Island.

Despite the broad language of his complaint, S.R.P. does not 

allege that the NPS provided no warnings at all regarding the 

presence of barracudas in the waters surrounding Buck Island. 

He acknowledges that the Buck Island Reef Brochure states 

that “[b]arracuda and sharks, if encountered, should be treated 

with caution but are not usually aggressive toward 

snorkelers.” Instead, he claims that such warnings, by their 

terms, apply only to snorkelers, and are therefore inadequate 

to advise shallow water bathers of the risk of a barracuda 

attack. Thus, he alleges that the NPS was negligent in failing 

to adequately warn visitors about the possibility of a shoreline 

barracuda attack.

A key dispute in this case is the extent of the NPS’s 

knowledge regarding the dangers posed by barracudas. 

S.R.P. argues that the NPS was aware that barracudas might 

attack shoreline swimmers. The Government, however, 

maintains that although NPS officials were aware in the most 

general sense that barracudas could be dangerous to humans, 

they had no information to suggest that barracudas posed a 
13

risk to shoreline swimmers specifically.3

2.

 Accordingly, the 

conduct at issue is the NPS’s judgment regarding whether to 

provide warnings and the extent of any such warnings, in 

light of the information available.

We must first determine whether a statute, regulation, 

or other policy required the NPS to warn of hazardous 

conditions in a specific manner, or whether the NPS’s actions 

were discretionary because they involved an “element of 

judgment or choice.” Gaubert, 499 U.S. at 322. After 

reviewing the applicable policies, we are convinced that NPS 

officials are explicitly vested with broad discretion regarding 

the manner in which to warn the public of dangerous 

conditions in national parks.

Under the NPS Organic Act, 16 U.S.C. § 1, the NPS is 

charged with

promot[ing] and regulat[ing] the use of . . . 

national parks . . . by such means and measures 

as conform to the fundamental purpose of the 

said parks, . . . which purpose is to conserve the

scenery and the natural and historic objects and 

 3 We review the District Court’s findings of fact 

related to jurisdiction for clear error. CNA v. United States, 

535 F.3d 132, 139 (3d Cir. 2008). The District Court agreed 

with the Government’s position and as we will explain later, 

the District Court’s finding was not clearly erroneous.
14

the wild life therein and to provide for the 

enjoyment of the same in such manner and by 

such means as will leave them unimpaired for 

the enjoyment of future generations.

To implement this statutory directive, the NPS has adopted 

various policies and internal operating procedures, including 

those related to public safety and signage. The 2001 NPS 

Management Policies (“Management Policies” or “the 

Policies”) provides:

While recognizing that there are limitations on 

its capability to totally eliminate all hazards, the 

Service . . . will seek to provide a safe and 

healthful environment for visitors and 

employees. . . . The Service will strive to 

identify recognizable threats to the safety and 

health of persons and to the protection of 

property. . . . When practicable, and consistent 

with congressionally designated purposes and 

mandates, the Service will reduce or remove 

known hazards and apply other appropriate 

measures, including closures, guarding, signing, 

or other forms of education. In doing so, the 

Service’s preferred actions will be those that 

have the least impact on park resources and 

values.

National Park Service, 2001 Management Policies, at 

¶ 8.2.5.1 (2001) (emphasis added).
15

The Management Policies thus clearly envision a 

system in which NPS officials will attempt to strike a balance 

between preservation of a park’s scenery and natural 

resources and public safety. However, the Policies do not 

specifically dictate the way in which park officials should 

balance these concerns or the specific actions that must be 

taken in response to particular problems. In fact, the Policies 

provides:

These management policies do not impose parkspecific visitor safety prescriptions. The means 

by which public safety concerns are to be 

addressed is left to the discretion of 

superintendents and other decision-makers at 

the park level, who must work within the limits 

of funding and staffing. Examples include 

decisions about whether to install warning signs

or artificial lighting; distribute weather 

warnings or advisories; . . . eliminate potentially 

dangerous animals; close roads and trails; or 

install guardrails and fences[.]

Id. (emphasis added).

These policy statements clearly vest local NPS 

officials with broad discretion to develop appropriate 

responses to natural hazards, including the posting of signs, 

based on a weighing of the applicable policy interests.

The NPS Sign Manual provides: “the individual park 

manager . . . has the responsibility for determining whether or 

not a sign is necessary or appropriate at a given location. The 
16

decision to utilize a particular sign at a particular location 

requires the professional judgment of the park manager[.]” 

National Park Service Sign Manual, at ¶ 1-1 (Jan. 1988). In 

making such decisions, park officials are to “bear in mind 

long standing NPS policy to minimally intrude upon the 

natural or historic setting in National Park System areas, and 

to avoid an unnecessary proliferation of signs, while striving 

to ensure for the safety of park visitors.” Id. The 

Management Policies further provides that “[s]igns will be 

held to the minimum number, size, and wording required to 

serve their intended functions.” Management Policies, at 

¶ 9.3.1.1. As these policies make evident, local NPS officials 

are afforded discretion both as to whether to post warning 

signs and as to the content of such signs. Accordingly, we 

hold that no statute, regulation, or policy mandated any 

particular method for warning about marine hazards at Buck 

Island.4

Our conclusion is in accord with those of other courts 

that have addressed the issue. As the U.S. Court of Appeals 

for the Ninth Circuit explained in Blackburn v. United States, 

“the [NPS] policy manuals’ broad mandate to warn the public 

of and protect it from special hazards involves the exercise of 

discretion in identifying such hazards, in determining which 

 The NPS’s “decisions as to the precise manner in 

which to do so, and its execution of those decisions,” 

Merando, 517 F.3d at 168, were discretionary because they 

involved an “element of judgment or choice,” see Gaubert, 

499 U.S. at 322.

 4 S.R.P. has not identified any Buck Island-specific 

policies or regulations that would dictate a different result.
17

hazards require an explicit warning and in determining the 

precise manner in which to warn it of those hazards.” 100 

F.3d 1426, 1431 (9th Cir. 1996) (citations omitted). “Because 

the NPS cannot apprise the public of every potential danger 

posed by every feature of [a national park], a degree of 

judgment is required in order to determine which hazards 

require an explicit warning and which hazards speak for 

themselves.” Valdez v. United States, 56 F.3d 1177, 1180 

(9th Cir. 1995); see also Terbush v. United States, 516 F.3d 

1125, 1128, 1140 (9th Cir. 2008) (finding that the decision 

not to post warning signs regarding a recent rockfall at 

Yosemite National Park was discretionary); Elder v. United 

States, 312 F.3d 1172, 1176-80 (10th Cir. 2002) (concluding 

that the decision whether to post additional signs warning of 

the danger of algae in streams at Zion National Park was 

discretionary); Shanksy v. United States, 164 F.3d 688, 690, 

692 (1st Cir. 1999) (holding that the NPS’s decision as to 

whether to post warning signs at the exit of a historical 

building was discretionary).

3.

Having concluded that no statute, regulation, or policy 

mandates specific action by NPS officials with respect to 

warning signs on Buck Island, we must now determine 

whether the discretionary judgment afforded to NPS is “of the 

kind that the discretionary function exception was designed to 

shield.” Berkovitz, 486 U.S. at 536. Only those decisions 

“susceptible to policy analysis” are protected by the 

exception. Gaubert, 499 U.S. at 325. We begin by noting 

that “[w]hen established governmental policy, as expressed or 

implied by statute, regulation, or agency guidelines, allows a 
18

Government agent to exercise discretion, it must be presumed 

that the agent’s acts are grounded in policy when exercising 

that discretion.” Id. at 324. That presumption, however, can 

be rebutted. Cestonaro v. United States, 211 F.3d 749, 755 

n.4 (3d Cir. 2000). In fact, we have made clear that 

“susceptibility analysis is not a toothless standard that the 

[G]overnment can satisfy merely by associating a decision 

with a regulatory concern.” Id. at 755 (internal marks and 

citation omitted). Rather, the Government must establish that 

the challenged conduct is “grounded in the policy of the 

regulatory regime,” and “based on the purposes that the . . . 

regime seeks to accomplish,” Gaubert, 499 U.S. at 325 & n.7. 

In other words, there must be a “rational nexus” between the 

Government’s decision and “social, economic, and political 

concerns.” Cestonaro, 211 F.3d at 759.

We conclude that the NPS’s decision not to post 

additional warning signs or add language to existing warning 

signs regarding the danger of a shoreline barracuda attack is 

susceptible to policy analysis because in determining the 

number, size, and content of warning signs, the NPS had to 

weigh the potential benefits of additional warnings against the 

costs of such warnings, including the risk of numbing Buck 

Island visitors to all warnings. Such a determination is 

directly related to the NPS’s mission of preserving national 

parks while ensuring public safety and is thus firmly 

“grounded in the policy of the regulatory regime.” See 

Gaubert, 499 U.S. at 325.

Buck Island is an offshore island in a “wild open ocean 

circumstance,” in which virtually unlimited natural hazards 

are present, and the NPS must make a policy determination as 
19

to which dangers are significant enough to merit specific 

attention on a warning sign. We have previously held that 

assessments of the respective degrees of risk presented by 

natural hazards and decisions regarding appropriate responses 

to such risks are susceptible to policy analysis. For example, 

in Merando v. United States, the plaintiffs challenged the 

manner in which the NPS located and removed hazardous 

trees. 517 F.3d at 162. In finding the discretionary function 

exception applicable, we stated that “knowing that it could 

not inspect every tree in the Park, the Park Service decided to 

expend the bulk of its resources on high-visitor use areas.”

Id. at 174. Likewise, in Mitchell v. United States, 225 F.3d 

361, 363, 366 (3d Cir. 2000), we held that the NPS’s choice 

not to repair or improve a drainage ditch and concrete headwall located near a paved roadway was susceptible to policy 

analysis because the NPS “was forced to determine priorities 

among the desirable improvements” and “repair the most 

urgent problems first.” We explained that, compared to other 

problems with the roadway, the defect complained of by the 

plaintiff presented only a “low risk of accident.” Id. at 366.

Similarly, here, knowing that it could not warn of 

every potential hazard at Buck Island, the NPS decided to 

focus on those it reasonably believed posed the most 

significant threat to visitors. Moreover, too many warning 

signs and brochures “would inevitably reduce the impact of 

the individual warnings on the public,” Valdez, 56 F.3d at 

1180, as would excessive warnings on any individual sign. 

Once an agency identifies a hazard, it “must then balance that 

risk against the cost of warning about that hazard and the 

possibility of overloading visitors with unnecessary 
20

warnings.” Perez, 2010 WL 3927628, at *12 (citations 

omitted). Such a judgment represents precisely the type of 

policy choice that the discretionary function exception 

prohibits us from second-guessing. Accordingly, we reject 

S.R.P.’s contention that once the Government decides to 

warn, it is no longer protected by the discretionary function

exception. The exception protects both the decision whether 

to warn and decisions regarding the scope and content of such 

warnings. We agree with the District Court that “Congress 

[did not] create[] the discretionary function exception only to 

force the NPS into the Catch-22 of choosing between issuing 

no warnings at all and posting warnings about every 

conceivable danger, no matter how remote or hypothetical.” 

Id. at *14; see Shanksy, 164 F.3d at 694 (rejecting the 

plaintiff’s argument that once the Government “decided to 

effectuate some modern safety measures, it became obliged to 

take all feasible safety measures”). Even if S.R.P. is 

advocating only for the incorporation of additional language 

regarding barracudas into existing warning signs, “such a 

change would necessitate a chain of further decisions,” Elder, 

312 F.3d at 1183, including whether to explain how to 

identify barracudas, and whether to offer detailed advice 

about what someone should do if he or she encounters a 

barracuda. Indeed, in his brief, S.R.P. argues that the Buck 

Island brochure should have explained in greater detail what 

it means to treat barracudas with “caution.”5

 5 At her deposition, Zandy Hillis-Starr, the local NPS 

official responsible for overseeing marine research in St. 

Croix, testified that she understood the warning to mean “to 
21

The Government draws our attention to the U.S. Court 

of Appeals for the Tenth Circuit’s decision in Elder v. United 

States, 312 F.3d 1172 (10th Cir. 2002), which is instructive 

because it presents a factual scenario strikingly similar to that 

in our case. The suit in Elder arose out of a 1997 incident, in 

which a twelve-year-old boy died while attempting to cross a 

stream at the Middle Emerald Pools in Zion National Park. 

Id. at 1174. As he stepped into the stream, the boy slipped on 

slick algae, slid downstream, fell over a ledge, and plunged 

more than 100 feet onto the rocks below. Id. Along the trail 

to the Middle Emerald Pools, there were numerous signs 

warning visitors of various hazards and cautioning visitors to 

stay on the trail. Id. at 1174-75. No signs specifically 

mentioned the danger of algae in the streams. Id. at 1175. 

Nor were there any barriers preventing visitors from leaving 

the trail and walking into the stream. Id. After the accident, 

the plaintiffs brought suit against the United States under the 

FTCA, alleging that the NPS was negligent for failing to 

specifically warn of the algae hazard and for failing to 

provide adequate barriers to prevent visitors from falling over 

the ledge. Id. at 1176. In response to the Government’s 

 

not approach [a wild animal], to not threaten it, to not be 

aggressive toward it . . . [t]o observe it quietly, and to move 

away if you feel at all threatened.” S.R.P. apparently wants 

this common sense definition included in the Buck Island 

brochure. Although the adequacy of the language in the 

brochure relates more directly to S.R.P.’s underlying 

negligence claim, we note that a warning brochure cannot be 

expected to include a definition of every term therein.
22

motion to dismiss based on the discretionary function 

exception, the plaintiffs argued that decisions regarding 

barriers and signs at the Middle Emerald Pools involved no 

policy considerations because park officials’ sole 

consideration should have been park safety. Id. at 1181. The 

Tenth Circuit disagreed, reasoning that “park officials must 

weigh the cost of safety measures against the additional safety 

that will be achieved. Even inexpensive signs may not be 

worth their cost.” Id. Additionally, “in a national park whose 

purpose is to preserve nature and display beauty to the public, 

any safety measure must be weighed against damage to 

natural resources and aesthetic values.” Id.

We acknowledge that if the discretionary function 

exception is given an overly broad construction, it could 

easily swallow the FTCA’s general waiver of sovereign 

immunity and frustrate the purpose of the statute. 

Accordingly, we have held that where the Government is 

aware of a specific risk and responding to that risk would 

only require the Government to take garden-variety remedial 

steps, the discretionary function exception does not apply. 

Finding that such cases are outside the scope of the 

discretionary function exception is consistent with the 

primary purpose of the FTCA. Cestonaro, 211 F.3d at 755. 

As the Supreme Court has explained, “[u]ppermost in the 

collective mind of Congress [when it passed the FTCA] were 

the ordinary common-law torts.” Dalehite v. United States, 

346 U.S. 15, 28 (1953) (partially overruled on other grounds

by Rayonier, Inc. v. United States, 352 U.S. 315 (1957)). 

“[C]ongressional thought was centered on granting relief for 

the run-of-the-[mill] accidents,” id. at 28 n.19, which 
23

occurred due to the Government’s failure to take basic steps 

to alleviate specific safety concerns. In such a situation, the 

Government’s conduct is analogous to that of a private citizen 

who fails to take appropriate action to ensure the safety of 

visitors on his or her property, and thus no broad public 

policy concerns are implicated.

In arguing that the NPS’s decision regarding warning 

signage at Buck Island was analogous to an “ordinary 

common law-tort[],” id. at 28, and thus not susceptible to 

policy analysis, S.R.P. relies on our decisions in Gotha v. 

United States, 115 F.3d 176 (3d Cir. 1997), and Cestonaro v. 

United States, 211 F.3d 749 (3d Cir. 2000). Because the key

distinctions between those cases and our case are factual, we 

will review them in some detail. In Gotha, we addressed 

whether the United States Navy’s failure to install a handrail 

or lighting on a steep pathway at a Navy facility in the Virgin 

Islands was protected by the discretionary function exception. 

115 F.3d at 178. In that case, the plaintiff fell and injured her 

ankle while walking on an unlit, unpaved path approximately 

fifteen to twenty feet in length, which dropped downward at a 

steep angle. Id. She brought suit against the Government

under the FTCA, alleging that the Navy was negligent for 

failing to provide a stairway with handrails and for neglecting 

to provide sufficient lighting on the pathway. Id. 

Significantly, there was evidence that the Navy was aware of 

the risk because it had been asked on several previous 

occasions to build a stairway or install handrails. Id. at 180. 

The Government moved to dismiss under the discretionary 

function exception, claiming that the Navy’s actions were 

motivated by “military, social, and economic considerations.” 
24

Id. at 181. The Government claimed that the Navy’s decision 

was informed by the need to train in a “realistic warfare

environment,” as well as economic factors, such as budgetary 

constraints, procurement regulations, and the anticipated 

service life of the facility. Id. In rejecting the Government’s 

argument and holding that the challenged conduct fell outside 

the scope of the discretionary function exception, we 

observed that the case was “not about a national security 

concern, but rather a mundane, administrative, gardenvariety, housekeeping problem that [was] about as far 

removed from the policies applicable to the Navy’s mission 

as . . . possible.” Id. We opined that “it [was] difficult to 

conceive of a case more likely to have been within the 

contemplation of Congress when it abrogated sovereign 

immunity than the case before us.” Id. at 182. Accordingly, 

we concluded that “the challenged actions [were] not the kind 

of conduct that [could] be said to be grounded in the policy of 

the regulatory regime.” Id. at 181-82 (quoting Gaubert, 499 

U.S. at 325).

In Cestonaro, while vacationing with his family, 

Daniele Cestonaro was shot and killed in a parking lot in 

Christiansted on the island of St. Croix. 211 F.3d at 751. The 

parking lot fell within the boundaries of the Christiansted 

National Historic Site, which was owned and controlled by 

the National Park Service. Id. The plaintiff (Cestonaro’s 

wife) brought suit under the FTCA, alleging that the NPS was 

negligent for failing to provide adequate lighting and warning 

signs in the lot. Id. at 752. The district court dismissed the 

action based on the discretionary function exception, finding 

that the NPS’s challenged decisions were grounded in its 
25

mission to “safeguard the natural and historic integrity of 

national parks” while “minimally intrud[ing] upon the setting 

of such parks.” Id. at 752 (citation omitted). We reversed, 

reasoning that the NPS’s decision was not related to any of 

the overarching policies cited by the district court. Id. at 756. 

Rather, the case involved a tort stemming from a garden 

variety decision not to implement safety measures, even 

though the NPS was aware that crimes had occurred in the 

lot, and had received regular complaints from local business 

owners about the safety of the lot. Id. at 751, 755. We stated 

that a suit based on such actions was precisely the type of 

case Congress contemplated when it abrogated sovereign 

immunity by passing the FTCA, id. at 755-56, and thus, we 

held that the Government could not “seek shelter under the 

discretionary function exception,” id. at 759.

Decisions from other courts support our view that 

where the Government is aware of a specific risk of harm, 

and eliminating the danger would not implicate policy but 

would involve only garden-variety remedial measures, the 

discretionary function exception does not apply. For 

example, in Boyd v. United States, 881 F.2d 895, 896, 898 

(10th Cir. 1989), the U.S. Court of Appeals for the Tenth 

Circuit held that the discretionary function exception did not 

apply where the Army Corps of Engineers created a reservoir, 

but failed to warn swimmers who regularly used a section of 

the lake that motorboats also used the area. The court 

reasoned that the alleged failure to warn swimmers of a 

dangerous condition in a popular swimming area did not 

implicate any social, economic, or political policy judgments. 

Id. at 898. Similarly, in Oberson v. U.S. Dep’t of Agric., 514 
26

F.3d 989, 998 (9th Cir. 2008), the U.S. Court of Appeals for 

the Ninth Circuit held that where the Forest Service was 

aware that two snowmobiles had recently collided on a steep 

portion of a snowmobile track, the Forest Service’s failure to 

post a warning or otherwise remedy the hazard was not 

protected by the discretionary function exception. Likewise, 

in George v. United States, 735 F. Supp. 1524, 1528, 1533 

(M.D. Ala. 1990), the U.S. District Court for the Middle 

District of Alabama concluded that where at least six 

incidents of “aggressive alligator behavior” in a swimming 

area had been reported to various park officials, the Forest 

Service was on specific notice of the danger and its failure to 

take remedial measures was not within the ambit of the 

discretionary function exception. See also Fabend v. 

Rosewood Hotels & Resorts, L.L.C., 174 F. Supp. 2d 356, 

360, n.10 (D.V.I. 2001) (noting that the hazard in that case 

was “well-defined and specific, not a nebulous or hidden 

danger” and stating that “[w]here the danger is specific rather 

than merely potential, the discretionary function exception 

may not protect a government agency’s failure to warn”) 

(citations omitted).
27

In our case, unlike Gotha, Cestonaro, and the other 

cases cited above, the NPS was not aware of a specific risk.

6

The District Court explained that although NPS 

officials recognized that shoreline swimmers might encounter 

a barracuda, there was no evidence that the presence of 

barracudas near the shore was a danger to the public. The 

District Court noted that “out of hundreds of thousands of 

 

Thus, S.R.P.’s reliance on those cases is misplaced. The 

District Court found that although the NPS was aware in a 

general sense that barracudas were potentially dangerous, 

there was no evidence that NPS officials were or should have 

been specifically aware of the risk of a shallow-water attack. 

We review this finding for clear error. CNA, 535 F.3d at 139. 

Under the clearly erroneous standard, we may not substitute

our findings for those of the trial court. Scully v. US WATS, 

Inc., 238 F.3d 497, 506 (3d Cir. 2001). Rather, we are limited 

to assessing whether there is enough evidence on the record 

to support those findings. Id. “That a different set of 

inferences could be drawn from the record is not 

determinative. It is sufficient that the District Court findings 

of fact could be reasonably inferred from the entire [] record.” 

Id. (citations omitted).

 6 Although NPS decisions regarding whether and to 

what extent to warn the public of the dangers posed by 

wildlife will generally be susceptible to policy analysis, it is 

possible that the NPS could be aware of a safety hazard so 

blatant that its failure to warn the public could not reasonably 

be said to involve policy considerations. Therefore, we will 

review the extent of the NPS’s knowledge in this case.
28

Buck Island visitors over the last several decades, [S.R.P.] 

was the first close-to-shore bather bitten by a barracuda.” 

Perez, 2010 WL 3927628, at *6. Zandy Hillis-Starr, the local 

NPS official in charge of overseeing marine research in St. 

Croix, testified in her deposition that she was unaware of any 

prior barracuda attack on the Buck Island shoreline. The only 

barracuda attack of which the NPS was aware was an attack 

that occurred in deeper water and involved a boat captain 

dumping fish oil into the water while dangling his feet over 

the edge of a boat.

S.R.P. argues, however, that the District Court ignored

substantial evidence indicating that the NPS knew that 

barracudas posed a serious risk to shallow-water swimmers. 

First, S.R.P. notes that the Secretary of the Interior’s decision 

to prohibit fishing in the waters surrounding Buck Island was 

expected to increase the barracuda population in the area, thus 

making an attack more likely. Second, he asserts that the 

Buck Island brochure’s and beach signage’s advisory to 

snorkelers to treat barracudas “with caution” indicates that 

NPS officials were aware that barracudas were potentially 

dangerous to humans. Third, he finds fault with the NPS’s 

decision, after the attack on the boat captain, to warn 

concessionaires not to feed the fish or put leftover food in the 

water, but not to issue a similar warning to beachgoers. 

Finally, S.R.P. claims that NPS officials were aware that 

splashing in the “shallows” was a risk factor which increases 

the likelihood of a barracuda attack.

S.R.P.’s arguments are unpersuasive. Based on the 

evidence before the District Court, its finding that NPS 

officials were unaware of the specific risk of a shoreline 
29

barracuda attack was not clearly erroneous. First, the fact that 

a boat captain in deeper water was attacked years earlier after 

pouring fish oil into the water does not suggest that an 

individual would be attacked while sitting on the beach with 

his feet in the water without any similar substance around 

him. In fact, when the boat captain was attacked, there were 

several snorkelers in the area, none of whom were bitten. 

Thus, the presence of fish oil around the boat captain’s feet 

seems to have been a significant factor in the attack. Second, 

as to S.R.P.’s argument that the fishing ban should have put 

officials on notice that a barracuda attack was more likely, the 

record indicates that local NPS officials actually disagreed as 

to whether the fishing ban would result in an increase in the 

barracuda population. However, even if the ban did lead to 

such an increase, because barracudas were not thought to be 

aggressive toward swimmers, the NPS would have had no 

reason to anticipate an increased likelihood of attack. Third, 

although the Buck Island brochure advised snorkelers to treat 

barracudas “with caution,” the same brochure stated that 

barracudas are not generally aggressive toward humans. 

Finally, S.R.P.’s claim that the NPS was aware that splashing 

in the shallows could lead to a barracuda attack is somewhat 

misleading. Although Hillis-Starr testified in her deposition 

that “splashing in the shallows” was a recognized risk factor 

for barracuda attacks, she made this statement while 

discussing the attack on the boat captain. She did not indicate 

that such behavior could lead to a barracuda attack on the 

shoreline. In fact, she specifically stated that it was the 

combination of pouring fish oil into the water and splashing 

that led to the attack. Hillis-Starr hypothesized that the 

barracuda likely mistook the boat captain’s feet for food.
30

The key question under Gotha and Cestonaro is not 

whether the Government was aware of danger in the most 

general sense, but whether it was on notice of a specific 

hazard. With no shoreline barracuda attacks in the twentytwo years preceding the attack on S.R.P., the District Court 

did not err in finding that NPS officials had no knowledge 

that such an attack was likely.

Assuming, arguendo, that the NPS was aware of the 

risk, a plaintiff proceeding under the FTCA can only invoke 

Gotha and Cestonaro where responding to the known hazard 

would only require the Government to take garden-variety 

action, such as putting up a rail or installing additional 

lighting, which does not implicate any overarching policy 

concerns. As we explained above, the NPS’s determination 

regarding the content of warning signs on Buck Island 

involved significant policy considerations. Thus, under 

Gotha and Cestonaro, neither condition for finding the 

challenged conduct outside the scope of the discretionary 

function exception is present in this case.

C. Burden of Proof and Standards for Rule 

12(b)(1) Motion

Although our review of the District Court’s legal 

conclusions is plenary, Merando, 517 F.3d at 163-64, because 

our analysis – especially under Gotha and Cestonaro – relies 

heavily on the District Court’s factual findings, which we 

review only for clear error, CNA, 535 F.3d at 139, we now 

address S.R.P.’s arguments that, in reaching those findings, 

the District Court improperly shifted the burden of proving 

the applicability of the discretionary function exception and 
31

failed to apply a relaxed standard that we have held is 

required when assessing factual challenges to jurisdiction 

under Rule 12(b)(1).

1.

S.R.P. argues that the District Court improperly 

required him to prove that the discretionary function did not 

apply, rather than requiring the Government to prove that it 

did apply. See Merando, 517 F.3d at 164 (stating that the 

Government bears the burden of proving the applicability of 

the discretionary function exception). We disagree. The 

District Court correctly explained that the burden was on the 

Government, Perez, 2010 WL 3927628, at *4, and held the 

Government to its burden. Cf. Gould Elecs., Inc. v. United 

States, 220 F.3d 169, 179 n.8 (3d Cir. 2000) (explaining that 

failure to identify the governing standard suggests that the 

district court may not have applied that standard).

Pointing to the District Court’s statement that 

“[p]laintiff has presented little evidence that the NPS had 

identified barracuda[s] as posing a serious risk to shallow 

water bathers[,]” Perez, 2010 WL 3927628, at *6, S.R.P. 

contends that rather than requiring the Government to 

establish each prong of the discretionary function exception, 

the District Court assessed the sufficiency of his evidence and 

improperly rejected his claim that the NPS was aware of a 

specific risk of shoreline barracuda attacks. According to 

S.R.P., the District Court should have first determined that the 

Government was mandated to act in the face of a known 

hazard and then required the Government to establish that it 

did not know of the hazard. S.R.P.’s argument glosses over a 
32

critical detail. Before proceeding to the two-prong 

discretionary function analysis, the District Court was 

required to identify the conduct at issue, and in conducting 

this threshold inquiry, it properly looked at all of the evidence 

in the case. The way in which the District Court proceeded 

was entirely consistent with our approach in Merando. See

517 F.3d at 162-69. In that case, the plaintiff argued that the 

Government had negligently pruned a tree, and then failed to 

find and remove the hazardous tree, causing it to fall on his 

wife and daughter, tragically killing them. Id. at 162. We 

found that the plaintiff’s allegation was unsupportable 

because he had “not shown that the Government was in any 

way involved in the [pruning] of the tree.” Id. at 167. We 

thus “eliminate[d]” the plaintiff’s claim that the Government 

negligently pruned the tree and confined our analysis to the 

plaintiff’s challenge to the Government’s alleged failure to 

find and remove the tree. Id. at 168. Similarly, the District 

Court here was required to distinguish between S.R.P.’s claim 

that the NPS was aware of a specific danger and failed to 

warn, and his claim that the NPS failed to identify the danger 

and warn accordingly. As in Merando, this distinction was 

relevant because the nature of the conduct at issue dictates the 

policy considerations that are implicated.

S.R.P. maintains that because the burden of proof was 

on the Government, he was entitled to all reasonable 

inferences that could be drawn from the evidence. This 

argument, however, conflates the placement of the burden of 

proof with the standard of review. The fact that the burden of 

proof is on the Government does not mean that a district court 

is required to apply a summary judgment standard and draw 
33

all inferences in favor of the plaintiff. Cf. Bouriez v. 

Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir. 2009) 

(setting forth summary judgment standard under Federal Rule 

of Civil Procedure 56). In fact, we have explicitly rejected 

such an approach to evaluating factual challenges to 

jurisdiction under Federal Rule of Civil Procedure 12(b)(1). 

See Turicentro, 303 F.3d at 300 n.4. The district court is the 

ultimate finder of fact on the jurisdictional question and is

thus entitled to draw inferences in favor of the defendant if it 

determines that the evidence warrants such inferences. See 

Merando, 517 F.3d at 167-68 (explaining that the evidence 

did not allow us to draw the inference, favorable to the 

plaintiff, that the NPS was involved in pruning the tree). As 

we explained above, the evidence in this case did not warrant 

a finding that the NPS had identified barracudas as posing a 

danger to shoreline bathers.

2.

S.R.P. also argues that the District Court applied the 

incorrect standard in evaluating the Government’s motion to 

dismiss. Specifically, he contends that the District Court was 

required, but failed, to apply a relaxed standard. We disagree; 

the standard S.R.P. alleges was erroneously applied is not 

applicable where, as here, the Government bears the burden 

of proof.

When a district court considers a factual challenge to 

subject matter jurisdiction, the court “accords the plaintiff’s 

allegations no presumption of truth.” Turicentro, 303 F.3d at 

300 n.4 (citations omitted). “[T]he plaintiff must either prove 

the truth of the [necessary jurisdictional facts] or stand by 
34

while the court evaluates those allegations in the same way a 

jury would evaluate [those facts] as part of [the] plaintiff’s 

case on the merits.” Mortensen, 549 F.2d at 891. “In a 

factual attack, the court must weigh the evidence relating to 

jurisdiction, with discretion to allow affidavits, documents, 

and even limited evidentiary hearings.” Turicentro, 303 F.3d 

at 300 n.4 (citations omitted).

As we have previously observed, in a factual attack 

under the FTCA, “the split between jurisdiction and the 

merits is not always clear.” CNA, 535 F.3d at 141. There 

will frequently be overlapping issues of proof, causing the 

jurisdictional challenge to be “intertwined with the merits.” 

Id. at 143. This case presents precisely such a situation 

because many of the same facts that are relevant to the 

question of whether the discretionary function exception 

applies are also relevant to the merits question of whether the 

NPS was negligent in developing warning signs for Buck 

Island. Recognizing that Rule 12(b)(1) does not provide 

plaintiffs the procedural safeguards of Rule 12(b)(6), such as 

assuming the truth of the plaintiff’s allegations, we have 

articulated a relaxed standard of proof for the jurisdictional 
35

question where jurisdiction is intertwined with the merits.7

 7 We note that several of our sister circuits disagree 

with our approach, and require district courts to treat Rule 

12(b)(1) motions to dismiss where jurisdiction is intertwined 

with the merits as challenges on the merits. See Lawrence v. 

Dunbar, 919 F.2d 1525, 1530 (11th Cir. 1990) (explaining 

that, in such a situation, a district court is constrained by the 

limitations of summary judgment practice); Williamson v. 

Tucker, 645 F.2d 404, 415 (5th Cir. 1981) (“Where the 

defendant’s challenge to the court’s jurisdiction is also a 

challenge to the existence of a federal cause of action, the 

proper course of action for the district court . . . is to find that 

jurisdiction exists and deal with the objection as a direct 

attack on the merits of the plaintiff’s case.”). S.R.P.’s 

reliance on these cases, however, is misplaced because we 

take a different approach to cases where the jurisdictional 

question is intertwined with the merits.

 

See Mortensen, 549 F.2d at 891. In such a case, a district 

court may determine whether jurisdiction exists without 

reaching the merits “so long as the court ‘demands less in the 

way of jurisdictional proof than would be appropriate at a 

trial stage.’” Gould Electronics, 220 F.3d at 178 (quoting 

Mortensen, 549 F.2d at 891). “By requiring less of a factual 

showing than would be required to succeed at trial, [we] 

ensure that [district courts] do not prematurely grant Rule 

12(b)(1) motions to dismiss claims in which jurisdiction is 

intertwined with the merits and could be established, along 

with the merits, given the benefit of discovery.” See CNA, 

535 F.3d at 145.
36

S.R.P. argues that in concluding that the Government 

had not identified barracudas as posing a risk to shallow 

water bathers, the District Court failed to apply this relaxed 

standard.8

Although we have applied that standard to other cases 

brought under the FTCA, those cases are distinguishable 

because they involved threshold requirements under 28 

U.S.C. § 1346(b)(1), for which the plaintiff bears the burden 

 We have never directly addressed the role of this 

standard where, as here, the burden of proving the relevant 

jurisdictional facts is on the defendant. However, there is 

clearly a logical tension between the two rules. Because the 

plaintiff does not have to prove any facts related to the 

applicability of the discretionary function exception, there is 

nothing, at least in terms of facts that the plaintiff is required 

to prove, to which to apply a relaxed standard of proof. And 

applying that standard to the defendant, and thus allowing the 

defendant to defeat jurisdiction more easily, would be 

inconsistent with the policy underlying our creation of the 

relaxed standard in the first place. See CNA, 535 F.3d at 145. 

Accordingly, because the Government bears the burden of 

proving the discretionary function exception, the “less in the 

way of jurisdictional proof” standard does not apply.

 8 It is worth noting that although we hold that the “less 

in the way of jurisdictional proof” standard does not apply 

here because the Government bears the burden of proof, the 

District Court specifically identified the relaxed standard and 

purported to apply it. Thus, assuming, arguendo, that the 

relaxed standard did apply, S.R.P.’s position would be 

difficult to sustain.
37

of proof. For example, in CNA v. United States, we applied 

the relaxed standard to the question of whether a federal 

employee was acting within the scope of his employment, as 

required under § 1346(b)(1). 535 F.3d at 145-46. Similarly, 

in Gould Electronics v. United States, we applied the relaxed 

standard to the question of which state’s substantive law 

controlled the underlying tort action.9

 9 In Gould Electronics v. United States, 220 F.3d 169, 

178 (3d Cir. 2000), we stated that “we s[aw] no principled 

reason to distinguish between a jurisdictional determination 

based on the discretionary function exception and one based 

on a conflict of laws analysis.” We do not see this language 

as a barrier to our conclusion today. In Gould, we were 

referring to the fact that there was no reason to treat a conflict 

of law inquiry under the FTCA as non-jurisdictional where 

other issues under the FTCA, including the applicability of 

the discretionary function exception, are jurisdictional in 

nature. Nowhere did we state that the “less in the way of 

jurisdictional proof” standard applies to discretionary 

function exception cases.

 220 F.3d at 178. Here, 

in contrast to CNA and Gould, the Government bears the 

burden of proving the necessary jurisdictional facts. 

Accordingly, because the relaxed standard of proof did not 

apply to the question before the District Court, S.R.P.’s 

contention that the District Court failed to apply that standard 

is inapposite.
38

IV. Conclusion

For the foregoing reasons, we will affirm the order of 

the District Court granting the Government’s motion to 

dismiss for lack of subject matter jurisdiction.
SRP v. UNITED STATES

No. 10-4011

 

ROTH, Circuit Judge, Concurring:

I join the majority in affirming the District Court’s

dismissal of the claims in this case. I write separately, 

however, because of my concern that the majority’s opinion 

will eviscerate the discretionary function exception by 

inserting an improper element into the analysis of whether 

sovereign immunity has been waived under the FTCA. In my 

view, (1) the NPS’s knowledge of the risk of barracuda 

attacks and (2) our determination of whether the remedial 

steps necessary to warn of that risk are “garden-variety” are

both irrelevant to the question of whether the discretionary 

function exception protects the NPS from claims based on the 

content, configuration, location or number of warning signs 

displayed at Buck Island Reef National Monument. If the 

discretionary function exception applies in a situation in 

which consideration of public policy governs a choice of 

action by a government agency, the “garden-variety” of the 

remedy should not remove the shield of sovereign immunity. 

I fear that the holding of the majority would do just that.

I agree with a great deal of what the majority has 

stated. First, the discretionary function exception shields the 

government only from those claims which challenge actions

that (1) “involve an element of judgment or choice” and that 

(2) are “based on consideration of public policy.” United 

States v. Gaubert, 499 U.S. 315, 322, 323 (1991). I also 

agree that whether an action involves an element of judgment 
2

or choice depends entirely on whether “a federal statute, 

regulation, or policy specifically prescribes a course of action

. . ..” Berkovitz v. United States, 486 U.S. 531, 536 (1988). If 

an action is specifically prescribed, there is no discretion as to 

how to perform it. Finally, I agree that, if there is no precise 

statutory, regulatory, or policy prescription for a course of 

action, the determination whether an action is based on public 

policy considerations focuses on the “nature of the action[] 

taken” and whether it is “susceptible to policy analysis. 

Gaubert, 499 U.S. at 315.

In this case, involving the National Park Service, an 

examination of the applicable statutes, regulations and 

policies reveals no specific prescription for how the NPS 

should configure warning signs. To the contrary, NPS

policies direct that the NPS must exercise discretion in 

deciding why, where, how and when to put up such signs.

The NPS Management Policies and the NPS Sign Manual 

vest the NPS with the discretion to strike a balance between 

economics, aesthetics and risk in determining the appropriate 

response to hazards in the national parks. This discretion to 

decide if and how risks will be warned of includes:

1. The consideration of what 

measures will have the least 

impact on park resources and 

values. 2001 Management 

Policies, ¶ 8.2.5.1.

2. The determination of whether 

to install warning signs. Id.
3

3. The allocation to the individual 

park manager of the decision that 

a sign is necessary or appropriate 

for any given location. Sign 

Manual, ¶ 1-1.

4. The limitation of signs to the 

minimum number, size and 

wording required to service their 

intended function. 2001 

Management Policies, ¶ 9.3.1.1.

Clearly, as provided for in NPS policies, signage in the 

National Parks is based on judgment and choice. The 

selection and location of signage is, therefore, protected by 

the discretionary function exception. As stated by the Ninth 

Circuit Court of Appeals, “the [NPS] policy manuals’ broad 

mandate to warn the public of and protect it from special 

hazards involves the exercise of discretion in identifying such 

hazards, in determining the precise manner in which to warn 

it of those hazards.” Blackburn v. United States, 100 F.3d 

1426, 1431 (9th Cir. 1996) (citations omitted).

In light of this discretion, the extent of the NPS’s

knowledge of a safety hazard is not relevant to the 

consideration of whether the discretionary function exception 

bars a suit challenging the NPS’s response to that hazard. 

The NPS explicitly has the discretion to set up a system to 

identify threats and to determine the proper warning, if any, 

that should be given to the public of an identified threat. The 

discretion to warn of a risk encompasses the discretion not to 

warn. Indeed, the discretion to decide how to define risks 

protects against the possibility of not uncovering a risk. For 
4

instance, in Merando v. United States, 517 F.3d 160 (3d Cir. 

2008), where we found the discretionary function exception 

protected the NPS in the system it chose to determine what 

trees in the park might pose a danger to visitors, we 

concluded that it made “no legal distinction” whether the NPS 

was actually aware of the particular hazardous tree which fell. 

In either case, sovereign immunity was not waived. Id. at 

174. 

Furthermore, even if the NPS were to be negligent in 

its evaluation of the risks that should be warned of, because 

the decision to warn is an exercise of discretion, the 

discretionary function exception applies whether or not the 

discretion has been appropriately exercised. The sovereign 

immunity waiver of the FTCA specifically states that the 

exception applies “whether or not the discretion involved be 

abused.” 28 U.S.C. § 2680(a) (emphasis added).

Under the majority’s theory of this case, however, if 

the government has knowledge of a safety hazard, then its 

response to that hazard is protected by the discretionary 

function exception only if addressing the hazard does not 

require “garden-variety action.” The majority concluded that 

the decision whether and how to further warn of barracuda 

attacks at Buck Island could potentially be based on a 

weighing of “the potential benefits of additional warnings 

against the costs of such warnings, including the risk of 

numbing Buck Island visitors to all warnings. Such a 

determination is directly related to the NPS’s mission of 

preserving national parks while ensuring public safety and is 

thus firmly grounded in the policy of the regulatory regime.” 

Ante ___ [typescript at 16]. 
5

The majority goes on, however, to limit this holding by 

stating that “where the Government is aware of a specific risk 

and responding to that risk would only require the 

Government to take garden-variety remedial steps, the 

discretionary function exception does not apply.” Ante ___. 

[typescript at 19] (emphasis added).

It is this “garden-variety” language which has 

prompted my concurrence. If the determination of the hazard 

is protected by the discretionary function exception but the 

risk of liability depends on whether the remedial steps to 

correct or warn of this risk are “garden-variety,” or not, 

haven’t we eviscerated the exception? Haven’t we protected 

policy choices which require expensive, extensive, or 

complicated remedies, but left the NPS open to liability if the 

remedy is simple or inexpensive? Indeed, how do you 

differentiate a “garden-variety” warning sign from a sign that 

is not “garden-variety?” 

This “garden-variety” language comes from our 

opinions in Gotha v. United States, 115 F.3d 176 (3d Cir. 

1997) and Cestonaro v. United States, 211 F.3d 749 (3d Cir. 

2000). The majority claims that this “garden-variety” 

analysis is necessary because of our holding in these two 

cases. I do not interpret anything in either of those opinions

to establish such a qualification to the discretionary function 

exception. Gotha involved the question of lightning and a 

railing on a steep pathway in a U.S. Navy Base. We held that 

the discretionary function exception did not apply because the 

case was “not about a national security concern, but rather a 

mundane, administrative, garden-variety, housekeeping 

problem that [was] about as far removed from the policies

applicable to the Navy’s mission as . . . possible.” Gotha, 115 
6

F.3d at 181 (emphasis added). There was no showing of any 

U.S. Navy policy directives concerned with this issue. Here, 

on the contrary, we do have NPS policy directives on point.

In Cestonaro, we evaluated whether the discretionary 

function exception barred claims challenging the NPS’s 

response to safety risks in an area on the edge of an NPS park

that was unofficially used as a parking lot for other places of 

business. Plaintiff and his decedent had parked there to go to 

a restaurant, not to visit the park. We stated that “[t]he 

National Park Service’s knowledge, or lack thereof, of the 

dangers in the Hospital Street lot relate more directly to the 

underlying negligence claims than to whether the challenged 

actions . . . were protected by the discretionary function 

exception.” 211 F.3d at 751 n.1. I can only presume that in 

coming to this conclusion, we did not equate risks of crime in 

an unofficial parking area with the discretion necessary for 

the NPS to determine what hazards within the parks should 

warned of, where the warning should be placed, and how the 

warning should be stated – discretionary matters spelled out 

in NPS policy. 

Therefore, for the reasons stated above, I would hold 

that the NPS’s knowledge of a safety hazard is irrelevant to 

the issue of whether the discretionary function exception bars 

claims challenging NPS’s response to that hazard. I would 

also hold that whether the measure taken to warn of that

hazard can be described as a “garden-variety” measure is 

irrelevant. In my view, the applicability of the discretionary 

function exception is contingent only upon (1) whether a 

federal statute, regulation, or policy prescribes a specific 

response and (2) if not, whether the choice of the response is

affected by social, economic, or political considerations. The 
7

nature of the proposed remedy -- “garden-variety” or 

otherwise – does not matter. Because I agree that no statute, 

regulation, or policy explicitly requires the NPS to respond to 

the risk of barracuda attacks in a specific way and that the 

policies of the NPS require discretion in identifying and 

warning of hazards, I would apply the discretionary function 

exception here to bar waiver of sovereign immunity – without 

the “garden-variety” condition imposed by the majority.