United States Court of Appeals

For the Eighth Circuit

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No. 14-2001

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MaryAnnMetter, asPersonalRepresentativeoftheEstateofEdwardO.Metter,Deceased

lllllllllllllllllllll Plaintiff - Appellant

v.

United States of America

lllllllllllllllllllll Defendant - Appellee

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No. 14-2002

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Justin Erickson and Jennifer Erickson, Husband and Wife

lllllllllllllllllllll Plaintiffs - Appellants

v.

United States of America

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the District of Nebraska

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 Submitted: February 13, 2015

Filed: May 11, 2015

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Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.

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RILEY, Chief Judge.

On October 9, 2011, while fishing with his son-in-law and grandson near

Gavins Point Dam on the Missouri River in Cedar County, Nebraska, Edward Metter

was tragically struck and killed when a parked pickup truck came out of gear and

rolled down an unprotected river bank. Mary Ann Metter, Metter’s widow and

personal representative of his estate, brought survival and wrongful death actions

under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680, against

the U.S. Army Corps of Engineers (Corps), asserting the Corps negligently

maintained the site. The grandson, Justin Erickson, and his wife, Jennifer Erickson,

brought a separate suit against the Corps raising the same theories of liability for the

mental and physical harms to Justin caused by witnessing his grandfather’s death and

any losses suffered by Jennifer. The Corps filed a motion to dismiss, or in the

alternative, for summary judgment. The district court granted the Corps’ motion to 1

dismiss the claims under Federal Rules of Civil Procedure 12(b)(1) for lack ofsubject

matter jurisdiction, finding (1) the claims were barred by the FTCA’s discretionary

function exception, and (2) the United States did not waive sovereign immunity.

2

Mary Ann and the Ericksons (collectively, appellants) appeal. We affirm.

The Honorable John M. Gerrard, United States District Judge for the District 1

of Nebraska.

The district court also granted the Corps’ motion to substitute the United

2

States as defendant. See Duncan v. Dep’t of Labor, 313 F.3d 445, 447 (8th Cir. 2002)

(per curiam).

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I. BACKGROUND

A popular spot for fishing, Gavins Point Dam, lake, and associated facilities

are operated and managed by the Omaha District of the Corps. Guardrails line most

of the parking areas along Training Dike Road where Metter was killed. Due to

historic flooding beginning in May 2011, the Corps removed two sections of

guardrail in June 2011 to allow heavy equipment access to the river shoreline and to

facilitate ongoing flood-related repairs, closing these areas for public use. David

Becker, the Corps’ Operations Project Manager, inspected the remaining wooden

guardrail posts and determined they needed to be replaced. On August 30, 2011, the

Corps hired C.B.M.C., a Tennessee contractor, to install new guardrail posts by

September 30, 2011. 

On September 19, C.B.M.C. assured the Corps it would complete the project

the following week. In an attempt to reduce contract costs and meet the planned

September 30 deadline, Corps personnel removed the remaining guardrails and posts

on September 28. Becker testified the Corps reopened the area along the river to the

public, but did not post parking restrictions or public advisories because he believed

removal of the guardrails did not endanger the public. Despite the Corps’ repeated

attempts to contactC.B.M.C. between September 26 and October 7, C.B.M.C. did not

perform as promised. The fatal accident occurred on October 9, before the Corps

terminatedC.B.M.C.’s contract and re-awarded the project to another contractor. The

new contractor replaced the guardrails before November 30.

The appellants brought suit against the Corps under the FTCA, alleging the

accident occurred as a result of the Corps’ negligence in failing to (1) “timely replace

the guardrail and posts along the parking area on Training Dike Road,” (2) “make a

reasonable inspection of the parking area,” (3) “maintain a reasonably safe parking

area,” and (4) “warn[ ] the public of the hazardous condition that existed on the

parking area.” The Corps moved to dismiss the case on jurisdictional grounds,

arguing its decisions relating to the removal and re-installation of the guardrails were

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protected by the discretionary function exception to the FTCA. The district court

agreed and granted the motion, and appellants appeal.

II. DISCUSSION

“It is well settled that the United States may not be sued without its consent,” 

Hinsley v. Standing Rock Child Protective Servs., 516 F.3d 668, 671 (8th Cir. 2008),

but under the FTCA, an injured party can hold the United States liable in tort

for injury or loss of property, or personal injury or death caused by the

negligent or wrongful act or omission of 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). However, 28 U.S.C. § 2680(a)—commonly referred to asthe

discretionary function exception to the FTCA—prohibits “[a]ny claim. . . based upon

the exercise or performance or the failure to exercise or perform a discretionary

function or duty on the part of a federal agency or an employee of the Government,

whether or not the discretion involved be abused.” 

A two-part test determines when the discretionary function exception applies. 

First, the agency action must “‘involv[e] an element of judgment or choice.’” United

States v. Gaubert, 499 U.S. 315, 322 (1991)(alteration in original) (quotingBerkovitz

v. United States, 486 U.S. 531, 536 (1988)). Second, we must “decide[ ] ‘whether

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

to shield.’” Id. at 322-23 (quoting Berkovitz, 486 U.S. at 536). “‘[I]t is the nature of

the conduct’” and whether the conduct is “susceptible to policy analysis” “‘rather

than the status of the actor that governs whether the exception applies.’” Id. at 325

(alteration in original) (quoting Varig Airlines v. United States, 467 U.S. 797, 813

(1984)). “[T]he exception ‘protects only governmental actions and decisions based

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on considerations of public policy,’” and there is a rebuttable presumption that the

government “agent’s acts are grounded in policy” “[w]hen established governmental

policy . . . allows [the] agent to exercise discretion.” Id. at 323-24 (quoting

Berkovitz, 486 U.S. at 537); see also Audio Odyssey, Ltd. v. United States, 255 F.3d

512, 519 (8th Cir. 2001); Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 795-96

(8th Cir. 1998).

“We review de novo a district court’s grant of a motion to dismiss under the

discretionary function exception to the FTCA.” Dykstra, 140 F.3d at 795.

Appellants “concede that there was an ‘element of choice’ in the [Corps’]

actions,” but propose that after the Corps decided to replace the guardrails, “it [was]

no longer exercising a discretionary policy-making function” that was “‘susceptible

to policy analysis’” and should be required to follow through “in a non-negligent

manner.” (Quoting Gaubert, 499 U.S. at 322, 325). We must decide whether the

Corps’ decision—to remove the guardrails and not post warning signs—is

“susceptible to policy analysis.” We conclude it is.

A. Corps’ Actions Were Discretionary

Becker testified two regulationsin chapter 3 ofthe Corps’ Engineering Manual

1110-2-410 (Manual) were “relevant to the siting of parking areas . . . and the

necessity of guardrails or other railings at or near parking areas.” The first provision,

paragraph 3-3(a)(1), provides, in relevant part:

Overlooks and their support facilities should be sited on gently sloping

terrain. The area where the entrance, exit and parking facilities will be

located should not exceed 7 percent grades and the section of roadway

passing the potential site should not exceed 5 percent grade. 

The second provision, paragraph 3-3(a)(2), provides, in relevant part:

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Precipitous drop offs should be made safe by the provision of

appropriate railing. 

We agree with the district court that nothing in the Manual prescribes “a specific,

mandatory duty upon the Corps to install or maintain (or to not remove) guardrails,

to provide warnings, or to restrict parking” applicable to Training Dike Road. We

also agree that “[t]he use of permissive language, rather than mandatory terms, such

as ‘must’ or ‘shall,’ shows that these [Manual] provisions are merely guidelines.” 

Becker described the slope of the embankment from the road to the river as “not

precipitous” at the site of the accident. The decision to replace the guardrails was

made in the context of the operation of a much larger project—the Corps’ duty to

maintain the associated recreation areas and facilities—and the Corps had authority

to decide how to best effectuate those duties. 

B. Susceptible to Policy Analysis

In deciding whether the nature of the Corps’ actions is “susceptible to policy

analysis,” “[t]he focus of the inquiry is not on the agent’s subjective intent.” Gaubert,

499 U.S. at 325. Rather, we look to whether the decision being challenged is

“grounded in social, economic, or political policy.” Id. at 323. 

Looking first at appellants’ contention that the Corps’ failure to warn was not

a public policy decision, we find guidance in Layton v. United States, 984 F.2d 1496

(8thCir. 1993). In Layton, we concluded the United States Forest Service’s “decision

whether or not to issue warnings [was] susceptible to policy analysis [because] it

involve[d] balancing safety against cost: the more effort the Forest Service expended

to discover dangers and warn contractors of them, the greater the safety benefit but

also the greater the cost to the government.” Id. at 1504-05; accord Hinsley, 516 F.3d

at 673 (“[T]he decision to warn is, at its core, a policy decision.”); Demery v. U.S.

Dep’t of Interior, 357 F.3d 830, 834 (8th Cir. 2004) (concluding the “decision . . . 

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whether to warn . . . is susceptible to a policy analysis” because it requires balancing

interests like “increased safety . . . with . . . the cost of erecting warnings”).

Appellants urge us to follow Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995),

which held the discretionary function exception did not apply to the National Park

Service’s failure to warn adequately about the nature of a road surface because the

Park Service could not “articulate how the placement of additional or different signs

on Beach Drive implicates . . . economic, social, or political concerns.” Id. at 452. 

The Park Service posted “no less than twenty-three traffic control, warning, and

informational signs” on the section of road where an accident occurred, and there was

no evidence that “engineering and aesthetic concerns” prevented the posting of

additional warning signs. Id. at 451-52 (internal marks omitted). In Cope, the court

found the Park Service had already made a specific policy decision to favor safety

over aesthetics and this involved “engineering judgment” based on objective

scientific principles not susceptible to policy analysis. Id. at 452. Our facts are

different, and Cope is not binding. Appellants have not alleged or presented evidence

to show the Corps had either adopted a safety policy or established priorities to guide

the Corps’ decisions in maintaining Training Dike Road and the facilities at Gavins

Point Dam, and appellants have failed to rebut the presumption that the Corps’

decision not to post warning signs was grounded in policy. See Gaubert, 499 U.S. at

323-24.

We next turn to appellants’ proposition that the Corps’ failure to replace the

guardrails by a specific date was not itself a policy decision, but instead was a

negligent failure to follow through on an earlier policy determination that the

guardrails should be replaced. Appellants rely on Aslakson v. United States, 790

F.2d 688, 693 (8th Cir. 1986), for the proposition that “[w]here the challenged

governmental activity involves safety considerations under an established policy

rather than the balancing of competing public policy considerations, the rationale for

the [discretionary function] exception falls away.” Appellants claimthere is evidence

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of an “established policy” of protecting the area where the accident occurred because

“guardrails ha[d] been in place for at least thirty years.” Appellants argue the “policy

was reaffirmed when Mr. Becker determined that the deteriorating guardrails should

be replaced” by September 30. 

Unlike the government agency in Aslakson, whose “policy clearly required it

to elevate its power lines if safety considerations compelled such action,” id., there

was no clear policy that bound the Corps to prioritize safety considerations or

maintain guardrails. As the district court observed, “[t]he Corps could have decided

to issue a binding policy,” but chose not to. 

We recognize a distinction between the Corps (1) exercising discretion and

deciding to replace the guardrails, and (2) deciding to issue a regulation or forming

a policy requiring the installation or maintenance of guardrails. Because the Corps

had the discretion to decide if, how, and when to replace the guardrails, it had the

discretion to alter its initial decision to replace the guardrails by September 30 when

the first contractor failed to perform. See, e.g., Gaubert, 499 U.S. at 331 (deciding

conduct of bank regulators did not “fall outside the discretionary function exception”

when the conduct “involved the mere application of technical skills and business

expertise . . . at the operational level” rather than at a policy-making level, because

“the challenged actions involved the exercise of choice and judgment”); Shansky v.

United States, 164 F.3d 688, 695 (1st Cir. 1999) (determining “[a]n agency that has

discretion to make policy choices” can adjust the “balance of relevant concerns” over

time, and when the “overall policy decision [is] protected by the discretionary

function exception,” the protection extends to “component” decisions). 

More importantly, the Corps need not have made a “conscious decision

regarding policy factors,” so long as the decision to remove the guardrails was

susceptible to a “balancing of public policy objectives.” Kiehn v. United States, 984

F.2d. 1100, 1105 (10th Cir. 1993) (internal marks omitted). Here, asthe district court

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observed, the Corps had to “balance the overall purpose of Training Dike Road with

the recreational uses of the area, the allocation of funds,” the timing of repairs and

maintenance work, “and the safety of drivers,” anglers, and other users. The Corps

removed the guardrails and posts itself to save money and to expedite the

project—both reasons reflect the discretionary exercise of choice and judgment. 

When the first contractor, C.B.M.C., failed to perform in accordance with the

September 30 schedule, the Corps exercised choice and judgment to retain a new

contractor with a revised schedule, yet no guardrails were at the site on October 9,

2011. We conclude the Corps’ discretionary actions were “susceptible to policy

analysis” within the meaning of Gaubert. 

III. CONCLUSION

We affirm the well-reasoned decision of the district court. 

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