[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-15411

Non-Argument Calendar

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D.C. Docket No. 1:11-cv-00093-WLS

AMANDA DELOACH SLAPPEY,

Individually and as Administratrix of the 

Estate of John Mark Slappey and as 

Mother and Next Friend of SAS, a minor child., 

 Plaintiff - Appellant,

versus

UNITED STATES ARMY CORPS OF 

ENGINEERS,

 Defendant, 

UNITED STATES OF AMERICA, 

 Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Georgia

________________________

(July 9, 2014)

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Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM: 

Plaintiff-Appellant Amanda Slappey appeals from the district court’s 

dismissal of her complaint against the United States raising negligence claims 

under the Federal Torts Claims Act (“FTCA”) and the Suits in Admiralty Act 

(“SIAA”). Slappey filed suit after her husband, John Mark Slappey, tragically 

drowned while duck hunting near the Jim Woodruff Lock and Dam in Lake 

Seminole, a reservoir owned and operated by the United States Army Corp of 

Engineers (“the Corps”). She says the Corps was negligent for failing to warn her 

husband of the hazards of hunting near the dam; for failing to keep the lake near

the dam reasonably safe for visitors; and for failing to inspect, maintain, and repair 

a warning sign, buoys, and a life ring. The district court dismissed the complaint, 

concluding that sovereign immunity protected the United States from suit under the 

FTCA and the SIAA because the maintenance and placement of safety features 

near the dam involved an exercise of discretion. On appeal, Slappey argues that: 

(1) the United States’s acts and omissions causing her husband’s death were not 

committed in the exercise of a discretionary function; and (2) the United States’s 

acts and omissions were not the kind of conduct that Congress intended to shield 

from liability as a discretionary function. After careful review, we affirm.

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We “review de novo factual attacks on the existence of subject matter

jurisdiction,” United States Aviation Underwriters, Inc. v. United States, 562 F.3d 

1297, 1299 (11th Cir. 2009), as well as the district court’s interpretation and 

application of the discretionary function exception, Hughes v. United States, 110 

F.3d 765, 767 (11th Cir. 1997). In a factual challenge to subject matter jurisdiction

-- as opposed to a facial challenge based merely on the allegations in the complaint

-- “the district court is not obligated to take the allegations in the complaint as 

true,” but “may consider extrinsic evidence such as deposition testimony and 

affidavits.” Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 

657 F.3d 1159, 1169 (11th Cir. 2011) (quotation omitted), cert. denied, 132 S. Ct. 

2379 (2012). In such a case, the plaintiff bears the burden of proving that 

jurisdiction exists, i.e., that the discretionary function exception does not apply. 

OSI, Inc. v. United States, 285 F.3d 947, 951 (11th Cir. 2002).

“The United States, as a sovereign entity, is immune from suit unless it 

consents to be sued.” Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 

1188 (11th Cir. 2011). The FTCA waives that immunity for the torts of 

government employees “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). But suits premised 

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on a government employee’s exercise of discretion are excepted from the FTCA’s 

waiver of immunity. 28 U.S.C. § 2680(a). The statute provides:

The provisions [of the FTCA] shall not apply to . . . [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.

Id. The 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). We’ve said the discretionary function doctrine applies 

to the SIAA too. Cranford v. United States, 466 F.3d 955, 958 (11th Cir. 2006).

The Supreme Court has created a two-part test for assessing whether a 

government employee’s actions constitute a discretionary function: (1) that the 

action must involve an element of “judgment or choice”; and (2) if it does, 

“whether that judgment is of the kind that the discretionary function exception was 

designed to shield.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). Here, 

Slappey challenges how the Corps dealt with heavy flooding and resulting issues in 

the Jim Woodruff Dam area. Specifically, she says that in response to the heavy 

flooding, the Corps had raised the spillway gates at the dam to allow more water to 

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be discharged from the upstream pool to the lower pool. In so doing, says Slappey, 

the Corps created an extremely hazardous and powerful current, and that current

carried her husband through the dam’s raised gates. Slappey also claims that for 

ten days before her husband’s death, the Corps failed to repair the buoy line in 

front of the dam that was down and no longer served as a physically restrictive 

barrier. Thus, as Slappey concedes, the conduct at issue involves whether any

controlling statute, regulation, or policy mandated that the Corps warn of hazards 

and maintain the area adjacent to the dam in a particular fashion. 

Under step one of the discretionary function test, we must assess whether the 

Corps’s conduct violated a specific nondiscretionary mandate that allowed no 

judgment or choice. Autery v. United States, 992 F.2d 1523, 1526-28 (11th Cir. 

1993). “The requirement of judgment or choice is not satisfied if a federal statute, 

regulation, or policy specifically prescribes a course of action for an employee to 

follow, because the employee has no rightful option but to adhere to the directive.” 

United States v. Gaubert, 499 U.S. 315, 322 (1991) (quotation omitted). 

Here, Slappey identifies no statute requiring particular upkeep or safety 

features at the dam. Rather, Congress has given the Corps broad authority over it. 

In the Rivers and Harbors Act of 1946, Congress provided that “the following 

works of improvement of rivers, harbors, and other waterways,” including the Jim 

Woodruff Dam, “are hereby adopted and authorized to be prosecuted under the 

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direction of the Secretary of War and the supervision of the Chief of Engineers, in 

accordance with the plans and subject to the conditions recommended by the Chief 

of Engineers in the respective reports hereinafter designated.” Pub. L. No. 79-525, 

60 Stat. 634, 634-35 (1946). Congress also has given the Corps broad discretion to 

manage its navigational civil works, including the Lake Seminole Project. See, 

e.g., 33 U.S.C. § 1 (authorizing the Army to “prescribe such regulations for the 

use, administration, and navigation of the navigable waters of the United States as 

in his judgment the public necessity may require for the protection of life and 

property, or of operations of the United States in channel improvement”).

In the absence of a congressional directive, Slappey offers several manuals,

engineering regulations and pamphlets. The Corps’s Sign Standards Manual 

(“SSM”) highlights the discretion that local Corps officials retain in determining 

the site-appropriate combination and placement of warning signs and aids to 

navigation, such as buoys, lights or alarms. The SSM says, for example, that the 

Corps policy is “that restricted areas and other hazards at our locks and dams and 

other waterway facilities may use a combination of buoys and dayboards with the 

USCG ATON symbol as the primary marking system.” It also provides that “[i]t is 

the responsibility of the staff at each project, in coordination with the Sign 

Program Manager and consistent with this manual, to determine the most effective 

mix of buoys, dayboards, and Corps signs.” The SSM says that local officials must 

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determine the appropriateness of an individual sign for a given setting “on a caseby-case basis,” based on “geography, hazards, audience, traffic, and the uses for 

each site.” The SSM also notes that the placement and sizing of water-viewed 

signs, like the one atop the dam, “is extremely difficult,” and depends on factors 

like “[v]arying water flow, fluctuating river widths, structural obstacles, extreme 

light conditions and unpredictable viewing situations.” 

Slappey argues, however, that the Corps’s Operational Management Plan 

(“OMP”) for the Lake Seminole Project contains more specific directives. The 

OMP provides that “[d]angerous situations that will affect visitor movement on the 

project (washouts, low water hazards, etc.) will be barricaded, fenced, or marked 

with the appropriate navigational warning marker as soon as the problem is 

known.” Slappey says the powerful current and “broken buoy line” constituted a

“[d]angerous situation” within the meaning of the plan. But as the district court 

reasoned, OMP § 3.2.1.2.4 separately refers to the areas above and below the dam, 

where the current is the strongest, as “potentially dangerous areas” to be marked at 

all times by buoy lines and signs. Thus, under a plain reading of the entire section,

the “[d]angerous situations” requiring quick action refer to “sudden hazards in

areas for visitors,” like washouts and low water hazards affecting launching and 

navigation, rather than areas that are always “potentially dangerous” to visitors.

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In any event, as Slappey concedes, the OMP left the Corps “with a range of 

choices -- barricades, fences, or ‘appropriate’ warning markers -- as to how to

respond to dangerous situations.” The Corps exercised that discretion by marking 

the dam’s hazards with a combination of safety features: a large, water-viewed sign 

atop the dam, an orange-red buoy line, and dolphins with warning signs and 

symbols.1 The Corps also sounds a warning horn before raising or lowering the 

spillway gates.2 Plus, even if the sign atop the dam does not comply with current 

SSM requirements for, inter alia, typeface and font, the Corps followed proper

SSM procedures to obtain a waiver based on the combination of safety features in 

place. A September 25, 2001 update to the Lake Seminole Sign Plan found these 

safety features to be “compliant with the current waterway signage guidelines” and 

that “[t]he current use of U.S. Coast Guard Aids to Navigation system buoys and

signs, in addition to dolphins, physical barriers and existing dam signage, [met]

current minimum requirements.” See Autery, 992 F.2d at 1530 (“Government 

liability cannot logically be predicated on the failure of [employees] to go beyond 

what the operational plans . . . required them to do.”) (quotation omitted).

 1 A “dolphin” is a cluster of closely driven piles used as a fender for a dock or as a

mooring or guide for boats.

2 Slappey also says that the Corps are required to prepare a water control plan alerting “all 

affected interests to possible hazards from project regulation activities.” 33 C.F.R. § 222.5(f)(7). 

The primary concern of the regulation is “the safety of persons engaged in activity downstream 

of the facility,” not upstream in front of the dam. See id. But to the extent this regulation applies, 

the Corps has instituted an audible alarm that provides specific warning of the imminent release 

of water through the gated spillway.

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As for Slappey’s claim that the local district failed to complete its sign plan, 

or even its project management plan, that does not bear on the discretionary nature 

of the Corps’ selection of this particular combination of safety features, or its 

decision to warn visitors away from the dam structure and spillways instead of 

identifying individual hazards such as currents or undertows, or its judgment of 

when to repair the buoy line. To the extent she claims that the Corps did not 

complete documentation of the signage plan at Lake Seminole in a timely fashion, 

she points to nothing requiring that plan to be completed by any given point. More

importantly, she identifies no provision that required the agency to adopt different

signage and barriers for the site than the ones that it had adopted. Indeed, 

Slappey’s disagreement with the choices the agency made concerning the signage 

plan is not relevant to the question of whether the agency had discretion to make 

the signage decisions that it made. Instead, the question of whether the agency 

exercised its discretion in developing the signage plan negligently is -- like 

Slappey’s suggestion that the signs selected were too small, not sufficiently 

specific, or not visible from a distance -- not relevant to the discretionary function 

inquiry. As we’ve said, “[o]ur concern under the discretionary function exception 

is not whether the allegations of negligence are true,” but rather, “whether the 

nature of the conduct involves judgment or choice and whether that judgment is of 

the kind that the exception was designed to protect.” Hughes, 110 F.3d at 767 n.1.

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Based on this record, we conclude that the district court correctly held that 

none of the provisions Slappey cited specifically prescribed the Corps’s selection, 

placement, and maintenance of safety features at the dam. See OSI, 285 F.3d at

952 (holding that “an agency manual which provides only objectives and principles 

for a government agent to follow does not create a mandatory directive”); Autery,

992 F.2d at 1528-29 (holding that an unwritten policy requiring “that employees 

‘make every effort within the constraints of budget, manpower, and equipment 

available to recognize and report’ hazardous trees” did not create a mandatory 

directive). Slappey has failed to meet part one of the discretionary function test.

At the second step of the discretionary function test, “assuming the 

challenged conduct involves an element of judgment, a court must determine 

whether that judgment is of the kind that the discretionary function exception was 

designed to shield.” Berkovitz, 486 U.S. at 536. The exception is intended to 

“prevent judicial second-guessing of legislative and administrative decisions 

grounded in social, economic, and political policy through the medium of an action 

in tort.” Id. (quotation omitted). In addressing this question, we must “look to the 

nature of the challenged decision in an objective, or general sense, and ask whether 

that decision is one we would expect inherently to be grounded in considerations of 

policy.” Autery, 992 F.2d at 1530-31 (quotation omitted). If the policy or 

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guideline allows for discretion, “it must be presumed that the agent’s acts are 

grounded in policy when exercising that discretion.” Gaubert, 499 U.S. at 324.

Here, the Corps’ decisions about the appropriate safety features for the dam, 

and the placement of those features, implicated many policy considerations. As 

the record shows, the Corps decided to retain the existing warning sign attached to 

the railing of the walkway/platform on top of the dam and to construct the dolphin 

and buoy system with warning signs posted on the dolphins. In so doing, the 

Corps considered and rejected other alternatives, based on engineering, cost, 

functionality, efficacy and safety considerations, such as a potential interference 

with commercial navigation and recreational boating or the risk that a proliferation 

of warnings could reduce their effect on the public. The decision of when to repair 

the buoy line segment also required the Corps to balance competing policy

considerations, including the risk to visitor safety in delaying repair of the buoy 

line break, versus the risk of sending employees to attempt repairs under dangerous

river conditions. In other words, the Corps’ decisions at issue “reflect the kind of 

judgment that the discretionary function exception is designed to shield.” OSI, Inc., 

285 F.3d at 953 (Military’s disposal of waste on a base “weigh[s] environmental 

policies against security and military concerns”); see also Cranford, 466 F.3d at

960 (Coast Guard’s decisions on marking and removing a submerged wreck 

implicate “the knowledge and customs of international mariners, balancing the

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needs of pleasure and commercial watercraft, and evaluating agency resource

constraints, [including] financial concerns”); Mid-South Holdings Co., Inc. v. 

United States, 225 F.3d 1201, 1207 (11th Cir. 2000) (Customs Service search of a

vessel involves balancing “overarching goal of locating contraband with such

concerns as efficiency and the minimization of intrusion on the privacy and 

property interests of searched parties”); Autery, 992 F.2d at 1531 (Park Service’s 

tree inspection procedure likely involved consideration of “risk of harm from trees 

in various locations, the need for other safety programs, the extent to which the 

natural state of the forest should be preserved, and the limited financial and human 

resources available”). Indeed, we’ve repeatedly held that an agency’s decision 

whether to warn, and how to warn, implicates policy concerns for purposes of the 

discretionary function analysis. See, e.g., Aviation Underwriters, 562 F.3d at 1300

(decision whether to warn pilots of severe clear air turbulence); Monzon, 253 F.3d 

572 (decision whether to warn of rip currents). Moreover, we fail to agree that our

case law is inapplicable based on Slappey’s view that the Corps’s negligence --

rather than heavy flooding -- caused strong currents, since this argument adds 

another layer of agency decisionmaking to the discretionary function analysis.

To the extent Slappey claims the decision when to repair the buoy line

constituted “routine maintenance,” the record indicates that the reattachment of 

buoy cables and dolphins in turbulent water was not routine maintenance, and that

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the decision to postpone repair was not based solely on cost and involved 

competing safety considerations. In any event, an agency may take into account

“economic” considerations along with other concerns in determining how to 

exercise its discretion. E.g., Gaubert, 499 U.S. at 323; see also Varig Airlines, 467 

U.S. at 820 (determining how “best [to] accommodate[] the goal of . . . safety and 

the reality of finite agency resources” involves exercise of policy judgment).

Further, Slappey’s argument that the “design” of the dam’s existing safety 

features is susceptible to policy analysis, while the Corps’ “implementation of

these ‘safety precautions’ is not,” resurrects the discredited distinction between

“planning” and “operational” levels of decisionmaking. See Gaubert, 499 U.S. at 

323, 325, 333; see also Cranford, 466 F.3d at 959 (plaintiffs “would have us rule 

that the discretionary function exception does not apply to the execution of a 

governmental decision, but this argument merely restates the operational conduct 

distinction rejected in Gaubert”). Gaubert similarly forecloses Slappey’s argument 

that the discretionary function bar does not apply to “matters of scientific and 

professional judgment -- particularly related to judgments concerning safety.” The 

Supreme Court has expressly held that “challenged actions [do not] fall outside the 

discretionary function exception because they involved the mere application of 

technical skills and business expertise.” Gaubert, 499 U.S. at 331.

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In short, Slappey has failed to meet her burden of showing that the Corps’s 

actions concerning the Jim Woodruff Dam did not amount to a discretionary 

function. 3

 Accordingly, the district court did not err in concluding that sovereign 

immunity protected the United States from Slappey’s claims.

AFFIRMED.

 3 In reaching this conclusion, we are unconvinced by Slappey’s reliance on out-of-circuit 

cases that are inapposite here.

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