* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 16, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-41270

Summary Calendar

 

DELORES D HIX, Individually and as Personal Representative

of the Estate of Herschel Hix Jr.; CESAR BARRIOS, SR; MONICA

BARRIOS, Individually and as Personal Representative of the

Estate of Cesar Barrios Jr. and as Next Friend of Giselle

Barrios, A Minor

Plaintiffs - Appellants

v.

UNITED STATES ARMY CORPS OF ENGINEERS, Agency of the United

States of America; Et Al

Defendants

UNITED STATES ARMY CORPS OF ENGINEERS, Agency of the United

States of America; J&S CONTRACTORS INC

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas, Galveston

No. 3:03-CV-376

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

In this Federal Tort Claims Act negligence action,

plaintiffs-appellants Delores Hix, Cesar Barrios, and Monica
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Barrios (collectively, “Appellants”) appeal the dismissal of

their lawsuit against defendants-appellees United States Army

Corps of Engineers (“USACE”) and J&S Contractors, Inc. (“J&S”).

Specifically, they allege that the district court erred in

granting USACE’s Rule 12(b)(1) motion to dismiss for lack of

subject-matter jurisdiction, granting J&S’s summary judgment

motion, and dismissing their claims against both parties with

prejudice. Because we agree that the district court was without

subject-matter jurisdiction, we AFFIRM the district court’s

dismissal of the action, but we VACATE the final order of

dismissal and REMAND to the district court for the entry of a

judgment of dismissal of all claims without prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises from two drownings that occurred on June

30, 2001, near the jetties that are located on the east end of

Galveston Island, Texas. USACE maintains the jetties,

breakwaters, and groins that line the east end of Galveston

Island. These rubble-stone structures are designed to protect

the Houston-Galveston Entrance Channel, a USACE navigation

project, from shoaling. They are not designed for public

recreation; however, the public often uses the jetties as

walkways for fishing or sightseeing on the beach. USACE

regulations allow USACE officials to post signs warning the

public of the safety hazards of tripping or falling while walking
1 Although Appellants argue that USACE did give the city

permission to use its sign posts before the drownings occurred,

the only evidence in the record that they cite to support this

contention is an e-mail written by USACE Colonel Nicholas

Buechler noting that he had offered USACE sign posts to the city

on July 5, 2001, six days after the drownings at issue. 5 R. at

855-58.

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on the jetties. Pursuant to these regulations, USACE placed

warning signs along the east end of Galveston Island that

cautioned, “Warning–Hazardous Walking Surface–Use At Your Own

Risk.”

In May 2001, during a Galveston City Council meeting, a

citizen expressed concern about the dangers that strong currents

in the ship channel on the east end of Galveston Island posed to

swimmers and waders. In response to this concern, on May 23,

city officials posted a bright orange warning sign on a jetty on

the east end of Galveston Island that read, “STRONG CURRENT–SWIM

AT YOUR OWN RISK.” The city affixed this sign to a USACE-owned

wooden sign post below an existing USACE sign. The record does

not reflect that the city informed USACE of this action or that

it sought USACE’s permission to post its sign in that location.1

Also in May 2001, USACE had entered into a written contract

with J&S, under which J&S had agreed to perform “sign replacement

activities” for USACE on Galveston Island. This project entailed

replacing missing, damaged, or outdated warning signs with

updated signs that stated, “Warning–Structure is Not Designed for

Public Access–Proceed at Your Own Risk.” The Galveston District
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Operations Manager, Bill Jakeway, supervised this project. 

Jakeway, whose duties included serving as the Project Sign

Program Manager for jetties, groins, and breakwaters, used the

USACE Sign Standards Manual as a guide to evaluate the conditions

of existing signs and sign posts and to determine which ones

needed to be replaced. 

While performing the contract work, a J&S employee

discovered the city’s unauthorized signs on the USACE sign posts

that were scheduled to be replaced and asked Jakeway how to

proceed. Jakeway instructed him to remove the unauthorized signs

along with the old USACE signs and sign posts as required by

contract specifications. The J&S crew followed Jakeway’s

instructions and removed the city signs and the old USACE signs

and sign posts. J&S ultimately removed all of the signs and

replaced the old USACE signs in accordance with the specific

instructions from Jakeway and USACE. J&S fully complied with the

terms of the contract and, upon completion of the job, USACE paid

J&S for its services.

Shortly after the sign replacement work was complete, on

June 30, 2001, Cesar and Monica Barrios went on a fishing trip on

the east end of Galveston Island with their two children, Cesar

Jr., age six, and Giselle, age nine. The two children waded into

the ship channel and were swept away by the strong current. 

Herschel Hix, a bystander, dove into the ship channel in an

attempt to rescue the children. Hix rescued Giselle but was
2 Appellants also named the City of Galveston and the County

of Galveston as defendants, invoking the court’s supplemental

jurisdiction, 28 U.S.C. § 1367, to bring Texas state-law claims

of negligence, premises liability, and nuisance. Appellants do

not challenge the district court’s dismissal of those claims on

this appeal. 

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unable to save Cesar Jr., who drowned. Hix died during the

rescue attempt.

Appellants, as survivors of the decedents, filed a lawsuit

against USACE and J&S pursuant to the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 1346(b)(1) (2000), for survivor injuries,

personal injuries, and wrongful death in the United States

District Court for the Southern District of Texas.2

Specifically, they argued that USACE and J&S were negligent in

removing the city’s warning signs along the east end of Galveston

Island, and that this negligence caused the deaths of Herschel

Hix and Cesar Barrios Jr. USACE filed a FED. R. CIV. P. 12(b)(1)

motion to dismiss for lack of subject-matter jurisdiction. J&S

filed a FED. R. CIV. P. 56 motion for summary judgment and a

motion for joinder in USACE’s Rule 12(b)(1) motion to dismiss. 

The district court held that it did not have subject-matter

jurisdiction over the claims against USACE or J&S because their

acts or omissions concerning the Galveston jetty sign repair

project were discretionary in nature; thus, the discretionary

function exception to the FTCA’s waiver of sovereign immunity, 28

U.S.C. § 2680(a), applied. Accordingly, the district court

granted USACE’s 12(b)(1) motion to dismiss. Reiterating that it
3 Because all of the facts pertinent to the jurisdictional

inquiry are undisputed, and because the district court based its

holding that it lacked subject-matter jurisdiction on the

complaint supplemented by these undisputed facts, “our review is

limited to determining whether the district court’s application

of the law is correct and . . . whether those facts are indeed

disputed.” Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.

1981). Although Appellants argue that the district court

erroneously resolved disputed facts in reaching its holding, see,

e.g., supra note 1, the record does not reflect that such facts

are indeed disputed; moreover, even if such facts were disputed,

they are not relevant to the jurisdictional determination that

USACE’s and J&S’s conduct was discretionary in nature.

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lacked subject-matter jurisdiction, and without providing further

reasoning, the district court also granted J&S’s motion for

summary judgment. It then dismissed the claims against both

parties with prejudice. This timely appeal followed.

II. DISCUSSION

A. Standard of Review

Before addressing the merits of a case, a federal court must

first determine whether jurisdiction is proper. Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94 (1995). We review

de novo whether a federal court has subject-matter jurisdiction.3

Chapa v. United States Dep’t of Justice, 339 F.3d 388, 398 (5th

Cir. 2003); Price v. United States, 69 F.3d 46, 49 (5th Cir.

1995). Further, in determining whether subject-matter

jurisdiction exists, “[c]ourts must strictly construe all waivers

of the federal government’s sovereign immunity, [resolving] all

ambiguities in favor of the sovereign.” Linkous v. United

States, 142 F.3d 271, 275 (5th Cir. 1998).
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B. Analysis

Appellants argue that the district court erred by (1)

holding that it lacked subject-matter jurisdiction over the

claims against USACE and J&S because the discretionary function

exception to the FTCA applied to their actions; and (2)

dismissing Appellants’ claims against USACE under Rule 12(b)(1)

for lack of subject-matter jurisdiction, granting summary

judgment on behalf of J&S, and dismissing the claims against both

with prejudice.

1. Discretionary Function Exception to the FTCA

Under the doctrine of sovereign immunity, the federal

government cannot be sued in its capacity as a sovereign unless

it consents to be sued. See United States v. Mitchell, 463 U.S.

206, 212 (1983) (“It is axiomatic that the United States may not

be sued without its consent and that the existence of consent is

a prerequisite for jurisdiction.”). For the federal government

to consent to be sued, Congress must waive sovereign immunity by

explicitly extending to federal courts subject-matter

jurisdiction over a specified cause of action. Id. The FTCA

waives sovereign immunity and allows private individuals to sue

the federal government for the negligent torts of its employees

by granting federal courts exclusive subject-matter jurisdiction

over

civil actions on claims against the United States, for

money damages . . . for injury or loss of property, or
4 Without citing to any authority, Appellants argue that the

discretionary function exception cannot apply unless the

government official has exercised due care. See Appellants’ Br.

at 9. This argument is without merit. We have made clear that

the disjunctive “or” in § 2680(a) separates two distinct

exceptions to the FTCA, and that the discretionary function

exception contained in the second clause of the provision applies

regardless of whether the government official has exercised due

care. See Buchanan v. United States, 915 F.2d 969, 970-71 (5th

Cir. 1990); Lively v. United States, 870 F.2d 296, 297 (5th Cir.

1989). “The question which we must answer, therefore, is not

whether the Government acted with due care but whether the

Government’s conduct was the result of the performance of a

discretionary function.” Lively, 870 F.2d at 297. We thus

reject Appellants’ contention that USACE must establish that it

exercised due care as a prerequisite for immunity from suit under

the discretionary function exception.

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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, the FTCA enumerates a number of exceptions to this

waiver of sovereign immunity, including an exception that

excludes from its grant of subject-matter jurisdiction claims

challenging “discretionary functions” performed by government

employees. The discretionary function exception covers

[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

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) (emphasis added).4 This exception also
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extends to contractors who work to implement programs as agents

of the federal government. Bynum v. FMC Corp., 770 F.2d 556, 564

(5th Cir. 1985) (“[W]hen contractors as agents or officers of the

federal government . . . work according to government

specifications, they are entitled to assert the government’s

sovereign immunity in suits arising from that activity.”); see

also Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21 (1940). 

To determine whether the discretionary function exception

applies to a government act, a court must first decide whether

the act is discretionary in nature. United States v. Gaubert,

499 U.S. 315, 322-23 (1991); Guile v. United States, 422 F.3d

221, 229 (5th Cir. 2005). To be discretionary, an act must

“‘involve an element of judgment or choice.’” Gaubert, 499 U.S.

at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536

(1988)). An act does not involve judgment or choice “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.’” 

Id. (quoting Berkovitz, 486 U.S. at 536). 

Second, even if the government conduct involves an element

of judgment, that judgment must be “of the kind that the

discretionary function exception was designed to shield.” United

States v. Varig Airlines, 467 U.S. 797, 813 (1984); see also
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Gaubert, 499 U.S. at 322-23. Because the discretionary function

exception is designed 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,” it applies only to government acts that are based on

public policy considerations. Varig Airlines, 467 U.S. at 813. 

Therefore,

[w]here Congress has delegated the authority to an

independent agency or to the Executive Branch to

implement the general provisions of a regulatory statute

and to issue regulations to that end, there is no doubt

that planning-level decisions establishing programs are

protected by the discretionary function exception, as is

the promulgation of regulations by which the agencies are

to carry out the programs. In addition, the actions of

Government agents involving the necessary element of

choice and grounded in the social, economic, or political

goals of the statute and regulations are protected.

Gaubert, 499 U.S. at 323. Moreover, whenever a government

employee takes an action pursuant to a regulation that provides

for discretion, “the very existence of the regulation creates a

strong presumption that a discretionary act authorized by the

regulation involves consideration of the same policies which led

to the promulgation of the regulations.” Id. at 324. 

In this case, USACE’s decision to remove the city’s warning

sign and J&S’s subsequent removal of the sign per USACE’s

instructions fall squarely within the discretionary function

exception to the FTCA. First, the decision to remove the city’s

warning signs as part of the larger USACE sign-replacement

project was pursuant to a delegation of authority from Congress
5 In the River and Harbor Act of 1894, 33 U.S.C. § 1,

Congress delegated to the Secretary of the Army the authority 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.” Id. 

Pursuant to this delegation of authority, USACE has

promulgated a number of regulations directly addressing jetty

maintenance and public safety activities along the navigable

waters of the United States. Chapter 3 of USACE Regulation No.

1130-2-520 (Nov. 29, 1996), “Project Operations Navigation and

Dredging Operations and Maintenance Policies,” provides that

USACE officials should maintain jetties “for their functions as

navigation aids and shoreline protection structures in a manner

that does not enhance or encourage recreational or other public

use.” 2 R. at 548-49. Moreover, these officials “shall be

responsible for determining minimum facilities for public health

and safety, such as guardrails, barricades, fencing, and warning

signs.” Id. This chapter provides guidance to USACE officials

in implementing these policies with regard to warning signs,

giving them the choice of (a) taking no action, (b) posting

warning signs, or (c) denying access to the area. Id. 

Chapter 6 of USACE Regulation No. 1130-2-50 (Dec. 27, 1996),

“Sign Standards Progress for Civil Works Projects,” further

addresses the posting of warning signs for USACE officials who

choose to post them, providing for the appointment of a Sign

Program Manager responsible for ordering and approving new signs

for civil works projects. 2 R. at 540. The Sign Program Manager

follows the guidelines laid out in the USACE Sign Standards

Manual, which instructs that “the appropriateness of an

individual sign to a setting is to be determined by the Project

Sign Program Manager on a case-by-case basis.” 2 R. at 537. 

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and “involved an element of judgment or choice.”5 Gaubert, 499

U.S. at 322. In his capacity as Project Sign Program Manager for

jetties, groins, and breakwaters on Galveston Island, Bill

Jakeway was responsible for evaluating conditions of existing

signs and developing a sign plan for the area pursuant to USACE

regulations giving him broad discretion in the implementation of

government policy regarding public safety on USACE jetties. As
6 Neither party disputes that J&S, as a contractor paid to

perform sign replacement activities on behalf of USACE, was a

USACE agent during the relevant time. USACE’s sovereign immunity

protection under the discretionary function exception thus

extends to J&S as well. See Bynum, 770 F.2d at 564.

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part of the sign replacement project, Jakeway decided to remove

the city’s unauthorized warning signs that were affixed to USACE

property and instructed J&S to carry out his orders. This

decision was discretionary in nature and was within the

discretion provided by the applicable statutes and regulations.

See Guile v. United States, 422 F.3d 221, 228-31 (5th Cir. 2005)

(holding that the United States Army’s decision to hire a health

care organization to provide psychiatric services and its

decision to supervise and how closely to supervise the

organization’s work were discretionary in nature); ALX El Dorado,

Inc. v. Sw. Sav. & Loan, 36 F.3d 409, 410-12 (5th Cir. 1994)

(holding that the federal government’s supervision of financial

institutions under the receivership of the Federal Savings and

Loan Insurance Corporation was a discretionary function).

Second, this government conduct was “of the kind that the

discretionary function exception was designed to shield” because

it was based on public policy considerations. Varig Airlines,

467 U.S. at 813. Jakeway’s discretionary decisions and J&S’s

actions as a USACE agent6 were in the course of carrying out

governmental programs pursuant to USACE regulations, and their

actions were grounded in the same policies underlying those
7 See also supra note 5.

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regulations: ensuring public safety in the area surrounding the

Galveston Island jetties without encouraging public use of the

jetties. See Gaubert, 499 U.S. at 323.7 A suit in tort is an

inappropriate vehicle to challenge these legislative and

administrative policies. Gaubert, 499 U.S. at 322; Varig

Airlines, 467 U.S. at 813. 

2. Dismissal of Appellants’ Claims

Because the discretionary function exception applies to

USACE’s and J&S’s conduct during the Galveston Island sign

replacement project, the district court was correct to conclude

that it lacked subject-matter jurisdiction over Appellants’

claims. ALX El Dorado, 36 F.3d at 410 n.5; McNeily v. United

States, 6 F.3d 343, 347 (5th Cir. 1993). “‘Without jurisdiction

the court cannot proceed at all in any cause. Jurisdiction is

power to declare the law, and when it ceases to exist, the only

function remaining to a court is that of announcing the fact and

dismissing the cause.’” Steel Co., 523 U.S. at 94 (quoting Ex

parte McCardle, 7 Wall. 506, 514 (1868)). Thus, “[a] federal

district court is under a mandatory duty to dismiss a suit over

which it has no jurisdiction.” Stanley v. Cent. Intelligence

Agency, 639 F.2d 1146, 1157 (5th Cir. 1981) (internal citations

omitted). Furthermore, “[w]hen a court must dismiss a case for

lack of jurisdiction, the court should not adjudicate the merits
8 Appellants argue that the district court should have

“converted” USACE’s Rule 12(b)(1) motion to dismiss into a motion

for summary judgment because “the jurisdiction facts are

intertwined with the operative facts of the case.” Appellants’

Br. at 4. We disagree. This court has held that where a

“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” under either Rule 12(b)(6) or

Rule 56. Williamson, 645 F.2d at 415; see also Montez v. Dep’t

of Navy, 392 F.3d 147, 150 (5th Cir. 2004). 

In this case, however, the merits of the actual cause of

action--state-law negligence--are irrelevant to our determination

of whether § 1346(b)(1) granted the district court subject-matter

jurisdiction over those negligence claims, or whether the

discretionary function exception of § 2680(a) divested the

district court of jurisdiction. Ford v. Am. Motors Corp., 770

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of the claim.” Id. 

Because it lacked subject-matter jurisdiction, the district 

court’s dismissal of Appellants’ claims against USACE on Rule

12(b)(1) grounds was appropriate. See ALX El Dorado, 36 F.3d at

410 n.5 (“The district court’s conclusion that the ‘discretionary

function’ exception applied divested it of jurisdiction over the

United States; thus, the proper ground for dismissal should have

been Rule 12(b)(1).”); Davis v. United States, 961 F.2d 53, 55-56

(5th Cir. 1991) (affirming the district court’s dismissal for

lack of subject-matter jurisdiction where an exception to the

FTCA applied to the challenged governmental acts); Buchanan, 915

F.2d at 970 (“If the government’s conduct falls within the

discretionary function exception to the FTCA, then the district

court properly dismissed the case for lack of subject matter

jurisdiction.”).8
F.2d 465, 468 (5th Cir. 1985) (holding that, where the

discretionary function exception to the FTCA barred the

plaintiffs’ negligence claims, “[t]he merits and the

jurisdictional issue were not so intermeshed as to prevent the

separate consideration and decision of the jurisdiction question”

and affirming the dismissal of the claims on Rule 12(b)(1)

grounds); see also Lively, 870 F.2d at 297 (holding that

negligence is not an element of the discretionary function

exception to the FTCA). Therefore, the district court was

correct to dismiss USACE’s claims under a 12(b)(1) standard. See

Davis, 961 F.2d at 56 n.4 (holding that dismissal on 12(b)(1)

grounds was appropriate where the district court lacked subjectmatter jurisdiction under the FTCA).

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The district court erred, however, when it granted J&S’s

motion for summary judgment for lack of subject-matter

jurisdiction. Because summary judgment acts as a final

adjudication on the merits, the court was without jurisdiction to

enter such a judgment. See Stanley, 639 F.2d at 1157 (“Since the

granting of summary judgment is a disposition on the merits of

the case, a motion for summary judgment is not the appropriate

procedure for raising the defense of lack of subject matter

jurisdiction.”). Therefore, because the discretionary function

exception “is premised on the notion that there is no

jurisdiction to hear the claim as the United States has not

waived sovereign immunity for that kind of suit, such defenses

should be raised by a motion to dismiss for lack of subject

matter jurisdiction rather than by a motion for summary

judgment.” Id.; see also Bank One Tex. v. United States, 157

F.3d 397, 403 n.12 (5th Cir. 1998) (“Granting summary judgment is

an inappropriate way to effect a dismissal for lack of subject
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matter jurisdiction.”). Accordingly, the district court erred

when it dismissed the claims against J&S on summary judgment

instead of on Rule 12(b)(1) grounds.

Finally, because it lacked subject-matter jurisdiction over

Appellants’ claims, the district court erred in dismissing the

claims with prejudice, which also operates as a judgment on the

merits. See Brooks v. Raymond Dugat Co., 336 F.3d 360, 362 (5th

Cir. 2003); Schwartz v. Folloder, 767 F.2d 125, 129 (5th Cir.

1985) (“Dismissal of an action with prejudice is a complete

adjudication of the issues presented by the pleadings and is a

bar to a further action between the parties. An adjudication in

favor of the defendants, by court or jury, can rise no higher

than this.”) (internal quotation marks omitted); see also FED. R.

CIV. P. 41(b) (“[A] dismissal under this subdivision and any

dismissal not provided for in this rule, other than a dismissal

for lack of jurisdiction . . . operates as an adjudication upon

the merits.”). Because the district court did not reach the

merits of Appellants’ claims, and did not have jurisdiction to do

so, it was incorrect to dismiss those claims with prejudice. 

Davis, 961 F.2d at 57 (affirming the district court’s dismissal

of claims over which it did not have subject-matter jurisdiction,

but vacating the final order of dismissal with prejudice and

remanding for an entry of judgment without prejudice).

III. CONCLUSION
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For the foregoing reasons, we AFFIRM the dismissal of

Appellants’ claims against both USACE and J&S for lack of

subject-matter jurisdiction, VACATE the final order of dismissal,

and REMAND to the district court for entry of an order of

dismissal without prejudice. Costs shall be borne by appellants.