PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RAWLS R. HAWES, 

Plaintiff-Appellant,

v.  No. 04-1736

UNITED STATES OF AMERICA,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CA-03-869-1)

Argued: February 1, 2005

Decided: May 26, 2005

Before WIDENER, MOTZ, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge Gregory wrote the majority

opinion, in which Judge Widener joined. Judge Motz wrote a dissenting opinion. 

COUNSEL

ARGUED: H. Jan Roltsch-Anoll, SZABO, ZELNICK & ERICKSON, P.C., Woodbridge, Virginia, for Appellant. Leslie Bonner

McClendon, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

ON BRIEF: Paul J. McNulty, United States Attorney, Alexandria,

Virginia, for Appellee. 

Rehearing en banc granted, August 31, 2005
OPINION

GREGORY, Circuit Judge: 

Before this court, Rawls R. Hawes appeals the dismissal of his tort

action, pursuant to Fed. R. Civ. P. 12(b)(1), against the United States

of America. Specifically, the district court held that the discretionary

function exception to the Federal Torts Claims Act covered all of the

allegedly negligent actions undertaken by the United States. Given

that the claims were not actionable, the district court found that it had

no subject matter jurisdiction and dismissed the case. 

Finding no error on the part of the district court, we affirm. 

I.

Rawls R. Hawes ("Hawes") accompanied his younger brother and

father, a retired member of the United States Coast Guard, to the

Quantico Marine Corps Base ("Base") located in Quantico, Virginia.

The Base is home to multiple man-made obstacle courses. The NATO

obstacle course, located in the Camp Barrett section of the Base, consists of approximately twenty man-made obstacles in an open field.

According to Major Darin Clarke, "[i]t was put together to have

obstacles that you may want — you may need to negotiate during

combat. It is a variety of climbing, jumping, skills. . . ." J.A. 774

(emphasis added). The Scale of Integrity is one of these obstacles. It

consists of a twenty-two foot long, four-inch thick wooden beam held

seven feet in the air by four iron posts. Just prior to Hawes’s visit,

Major Clarke had ordered maintenance on the Scale of Integrity.

According to Major Clarke, "[t]he board that was on there started to

splinter and so I wanted to get a new board up there to reduce the

splinters when that course is being negotiated." J.A. 776. Major

Clarke made a request to the Base’s Range Management Detachment,

who in turn assigned Staff Sergeant John Raventos ("SSgt. Raventos") to perform the requested repairs. SSgt. Raventos received the

work order and shortly thereafter visited the course with Major Clarke

to determine exactly what repairs needed to be made. SSgt. Raventos

ordered a new wooden beam for the Scale of Integrity, which was

delivered to the Base on January 8, 2001. 

2 HAWES v. UNITED STATES
On January 12, 2001, the Friday before the Martin Luther King Jr.

holiday, SSgt. Raventos took a crew to the obstacle course with the

intention of installing the new wooden beam. After pulling the old

beam down and placing the new beam on the iron poles, the forklift

used to place the beam on these poles was needed elsewhere on the

Base and was taken from the NATO obstacle course. Then, while

attempting to drill the holes to secure the new beam in place, the portable drill the crew was using ran out of power. The marines left the

beam unfastened on top of the poles, and went to determine if another

power generator was available. Upon determining that there was not,

the marines were dismissed because it was a holiday weekend and

their holiday started at noon. SSgt. Raventos then returned to the

course to place four safety cones at the obstacle.1 SSgt. Raventos

planned to return on Tuesday, January 16, 2001 with proper equipment to secure the beam. 

However, on Sunday, January 14, 2001, Hawes attempted to navigate the Scale of Integrity. As Hawes attempted to pull himself up

onto the unbolted beam, it shifted causing Hawes to fall to the ground.

The beam then fell off the iron poles and onto Hawes’s leg, crushing

his femur and causing permanent damage. 

Hawes subsequently brought this action, alleging both negligence

and gross negligence on the part of the Government during the maintenance of the Scale of Integrity. The Government moved for dismissal under Fed. R. Civ. P. 12(b)(1), or in the alternative Fed. R.

Civ. P. 56. The district court granted the Government’s 12(b)(1)

motion, finding that the challenged actions were covered by the discretionary function exception to the Federal Torts Claims Act

("FTCA"), 28 U.S.C. § 2680(a) (2005), which divested the court of

subject matter jurisdiction. Applying the test enunciated by the

Supreme Court in United States v. Gaubert, 499 U.S. 315 (1991), and

Berkovitz v. United States, 486 U.S. 531 (1988), for identifying discretionary government functions protected from the reach of the

FTCA, the district court first found that the decision was discretionary

because no federal standard governed the Government’s maintenance

of the obstacle. The district court next found that the decision to stop

1According to SSgt. Raventos, he placed two cones on top of the beam

and two cones at the foot of the beam. J.A. 897. 

HAWES v. UNITED STATES 3
the maintenance, leaving the unbolted beam on the posts, even if there

was no adequate warning, was tied to the exercise of judgment based

upon considerations of public policy. Because the court found that the

military was balancing technical, military, and social considerations,

it found that the second prong of the discretionary function exception

test was satisfied. 

From that decision, Hawes brings this appeal. 

II.

The dismissal of an action under Rule 12(b)(1) is a matter of law

reviewed de novo. Robb v. United States, 80 F.3d 884, 887 (4th Cir.

1996). As a general matter, "the plaintiff bears the burden of persuasion if subject matter jurisdiction is challenged under Rule 12(b)(1),

because [t]he party who sues the United States bears the burden of

pointing to . . . an unequivocal waiver of immunity." Williams v.

United States, 50 F.3d 299, 304 (4th Cir. 1995) (internal citations

omitted). 

Multiple district courts in this Circuit have read this ruling as placing the burden of persuasion to defeat the assertion of an exception

to the FTCA waiver on the plaintiff. See Hostetler v. United States,

97 F. Supp. 2d 691, 695 (E.D. Va. 2000); Jackson v. United States,

77 F. Supp. 2d 709, 712 (D. Md. 1999). We agree, and note that this

approach is in line with that enunciated by the First Circuit. See

Hydrogen Technology Corp. v. United States, 831 F.2d 1155, 1162

n.6 (1st Cir. 1987) (noting "when an exception to the FTCA applies,

sovereign immunity is still intact and federal courts have no subject

matter jurisdiction to entertain an action.").2

2

In Zielinski v. United States, No. 95-2160, 1996 WL 329492, at *3

(4th Cir. June 6, 1996), this court endorsed the Ninth Circuit’s view that

the plaintiff bears the initial burden of persuading the court that it has

jurisdiction under the FTCA’s general waiver of immunity. After this

burden is satisfied, the burden falls on the government to prove the applicability of an exception to the FTCA. Prescott v. United States, 973 F.2d

696, 701 (9th Cir. 1992). However, because unpublished opinions have

no precedential value in this circuit, see Local Rule 36(c), we rely on

Williams. 

4 HAWES v. UNITED STATES
III.

The FTCA constitutes a waiver of the sovereign immunity of the

United States, allowing the government to be liable in tort "in the

same manner and to the same extent as a private individual under like

circumstances, but [the government] shall not be liable for interest

prior to judgment or for punitive damages." 28 U.S.C. § 2674. However, the FTCA is subject to a number of exceptions, the discretionary

function exception being one. Baum v. United States, 986 F.2d 716,

719 (4th Cir. 1993). The discretionary function exception excludes

from the FTCA’s waiver:

Any 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) (2005). This 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).

As this court has recognized, "[t]hough the purpose underlying the

discretionary function exception is well accepted, courts have encountered some difficulty in applying its rather general terms to the myriad

of fact patterns that predictably present themselves. . . ." Baum, 986

F.2d at 719-20. However, two recent Supreme Court decisions,

United States v. Gaubert, 499 U.S. 315 (1991) and Berkovitz v.

United States, 486 U.S. 531 (1988), laid out a two-part test that somewhat clarified the application of this important statute. First, a court

must determine whether the governmental conduct challenged

involves an element of judgment or choice. Baum, 986 F.2d at 720

(citing Gaubert, 499 U.S. at 322-23; Berkovitz, 486 U.S. at 536). The

essential inquiry here is whether the challenged conduct "is the subHAWES v. UNITED STATES 5
ject of any mandatory federal statute, regulation, or policy prescribing

a specific course of action." Baum, 986 F.2d at 720. Where there is

such a statute, regulation, or policy, there is no discretion, and therefore no exception, "because ‘the employee has no rightful option but

to adhere to the directive.’" Gaubert, 499 U.S. at 322 (quoting

Berkovitz, 486 U.S. at 536). 

However, upon finding an element of discretion, the court must

then determine whether the judgment is "of the kind that the discretionary function exception was designed to shield." Id. at 322-23. As

the Supreme Court stated in Gaubert:

Because the purpose of the exception is 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, when properly construed,

the exception ‘protects only governmental actions and decisions based on considerations of public policy.’" 

Id. at 323 (citations omitted). As enunciated by Gaubert, this second

element of the test grants broad latitude to the government. First,

Gaubert enunciated a presumption that "[w]hen established governmental policy, as expressed or implied by statute, regulation, or

agency guidelines, allows a 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. Next, the policy analysis looks

not toward the actual considerations of a government agent in undertaking the conduct in question, but instead to whether the actions "are

susceptible to policy analysis." Id. at 325 (emphasis added). Finally,

"it is the nature of the conduct, rather that the status of the actor that

governs whether the exception applies." Id. In so stating, the Court

was clearly rejecting the notion that the exception did not reach decisions made at the operational or management level. See id. As this circuit has read Gaubert, "a reviewing court in the usual case is to look

to the nature of the challenged decision in an objective, or general

sense, and ask whether that decision is one which we would expect

to be grounded in considerations of policy." Baum, 986 F.2d at 720-

21. 

Upon satisfaction of these two elements, the FTCA’s waiver of

sovereign immunity is no longer applicable.

6 HAWES v. UNITED STATES
A.

First, we must determine whether the challenged conduct involved

an element of judgment or choice. The essential inquiry here is

whether the challenged conduct "is the subject of any mandatory federal statute, regulation, or policy prescribing a specific course of

action." Id. at 720. "If no such mandatory statute, regulation, or policy

applies to remove the challenged conduct from the choice and judgment of the government, then we move to the second tier of the

Berkovitz-Gaubert analysis." Id.

Before this Court, Hawes makes only a token effort at identifying

a statute, regulation, or policy that prescribes a specific course of

action that SSgt. Raventos should have followed. In full, Hawes

argues that SSgt. "Raventos was subject to the MCB Safety Program

that expressly required him to be responsible for ‘using normal caution, common sense, and foresight’ in his work and to warn others of

known hazards." Appellant’s Brief 14. However, this effort is herculean compared to that put forth before the district court. There, the

district court found that Hawes admitted "that no federal standard

directly governs the maintenance and repair of the obstacle course."

Hawes v. United States, 322 F. Supp. 2d 638, 641 (E.D. Va. 2004).

Hawes, in his "Memorandum in Opposition to Defendant’s Motion to

Dismiss or For Summary Judgment", did "not dispute that the Marine

Corps did not have a specific regulation requiring the posting of signs

for the general public warning of repairs or maintenance on the obstacle." J.A. 913. Further, Hawes argued the internal rules and regulations of the Base, of which the MCB safety program would be one,

"are irrelevant to the determination of this case." J.A. 913. Thus, we

find that the argument that the MCB Safety Program constitutes a

statute, regulation, or policy that prescribes a specific course of action

that SSgt. Raventos should have followed was not raised before the

district court, and therefore refuse to address it here. See e.g. Skippy,

Inc. v. CPC International, Inc., 674 F.2d 209, 215 (4th Cir. 1982)("In

the absence of exceptional circumstances, questions not raised and

properly preserved in the trial forum will not be noticed on appeal.").

As such, we limit our review of this matter to the specific issue

considered by the district court: whether considerations of public policy were the basis for decisions regarding repairs to the obstacle?

HAWES v. UNITED STATES 7
B.

Here, we must determine whether the challenged decisions are of

the kind that the discretionary function exception was designed to

shield. In other words, were these decisions based on public policy?

In essence, Hawes argues that the proper focus of the inquiry is not

on the Government’s decision to repair the Scale of Integrity, but

solely on the decisions made by SSgt. Raventos while repairing the

obstacle itself. Hawes concedes that the decision to replace the beam

on the Scale of Integrity involved policy considerations. For Hawes,

however, any considerations of public policy ended with that decision. 

"Public policy," as used in this specific context, is defined as

involving considerations of economic, social, or political policy. See

Gaubert, 499 U.S. at 323. This court has interpreted Gaubert to

require that we look to the nature of the challenged decision in an

objective or general sense. See Baum, 986 F.2d at 720-21. However,

this does not mean that we ignore the actual conduct challenged. The

Gaubert Court listed and examined the specific allegations made by

the plaintiffs in that case. See Gaubert, 499 U.S. at 327-28. There,

examining charges that federal regulators assumed day-to-day decision making authority and negligently discharged their duties, the

Court examined challenged conduct such as government regulators

mediating salary disputes. Id. at 328. "The question in this case is

whether the governmental activities challenged by petitioners are of

this discretionary nature." Berkovitz, 486 U.S. at 539 (emphasis

added). Therefore, while we focus on SSgt. Raventos’s decisions to

cease the repair of the Scale of Integrity until after the weekend holiday and the alleged failure to warn adequately, we view these decisions in an objective or general sense, keeping in mind the context

within which they were made. Viewing the decisions in question

through that lens, we then seek to determine whether the decisions in

question were based on considerations of public policy. 

In this circuit, we have interpreted the phrase "public policy"

broadly to include a wide variety of government judgments. In Baum,

we held that the National Park Service’s judgments regarding the

maintenance of its bridges and guardrails were covered by the discretionary function exception because they pertained to the allocation of

8 HAWES v. UNITED STATES
government resources, a consideration "inherently bound up in considerations of economic and political policy." Baum, 986 F.2d at 724.

Similarly in Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.

1987), we held that the failure of the National Park Service to erect

a guardrail was a policy determination. There, we stated that:

[w]hether the decision grew out of a lack of financial

resources, a desire to preserve the natural beauty of the

vista, a judgment that the hazard was insufficient to warrant

a guardrail, or a combination of all three is not known. What

is obvious is that the decision was the result of a policy

judgment.

Id. Further, in Smith v. WMATA, 290 F.3d 201, 205, 212 (4th Cir.

2002), we applied FTCA principles to a case in which the plaintiffs

challenged WMATA’s alleged failure to repair and maintain its escalators and "conclude[d] that the [WMATA] is entitled to be accorded

immunity under the discretionary function exception for its decisions

at the Bethesda station . . . (1) to brake escalator one and utilize it as

a stationary walker; (2) to leave escalator three disassembled; and (3)

to provide no specific warning to its patrons of the situation at the station." There, we found that the repair/maintenance decisions regarding the escalators "implicated the ecopolicy of the METRO, i.e.,

whether it was more cost-effective to reassemble Escalator Three

pending repair, or whether to wait until replacement parts arrived." Id.

at 210.3

In the face of this broad, unflinching history, Hawes charges that

the challenged decisions do not constitute the types of decisions

intended to be covered by the discretionary function exception

because they are not susceptible to a policy analysis. Hawes relies

heavily on our language in Baum, where we stated that "we do not

suggest that every maintenance decision of every government actor is

so policy-based as to fall within the discretionary function exception,"

3See also Patton Electric Co. v. United States, 64 F. Supp. 2d 580, 583

(E.D. Va. 1999) ("Deciding when a product safety alert should be issued,

how the alert should be communicated to federal customers, and how to

identify, gather, and repair the defective products are essentially costbenefit economic and political decisions."). 

HAWES v. UNITED STATES 9
Baum, 986 F.2d at 724, and argues that SSgt. Raventos’s decisions to

leave the plank unbolted and not provide an adequate warning are

exactly the types of decisions the above language contemplates.4

However, it is well established in this circuit that "when discretionary decisions are ones of professional military discretion, they are due

the courts’ highest deference." Minns, 155 F.3d at 451 (citing Tiffany

v. United States, 931 F.2d 271, 277 (4th Cir. 1991)). Given that level

of deference, in combination with this circuit’s broad discretionary

function exception jurisprudence, we believe it is plain that SSgt.

Raventos’s actions are covered by the exception. SSgt. Raventos, a

Marine, was charged with repairing military equipment used to train

marines for combat on a military base. In order to complete this task

SSgt. Raventos had military resources, including four marines, at his

disposal. Because the repair of military equipment on a military base

4

In Gaubert, the Court stated: 

There are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not

within the discretionary function exception because these acts

cannot be said to be based on the purposes that the regulatory

regime seeks to accomplish. If one of the officials involved in

this case drove an automobile on a mission connected with his

official duties and negligently collided with another car, the

exception would not apply. Although driving requires the constant exercise of discretion, the official’s decisions in exercising

that discretion can hardly be said to be grounded in regulatory

policy. 

Gaubert, 499 U.S. at 325. The dissent analogizes the conduct in question

here to the above example, and argues that the conduct in question here

was not grounded in regulatory policy. 

However, the conduct in this case, unlike that in the Gaubert example,

was not tangential, but instead directly related to the completion of the

task at hand. It is undisputed that the military possessed the discretion to

maintain military equipment. While maintaining the Scale of Integrity,

SSgt. Raventos exercised this discretion with an eye toward military and

economic policy. The challenged decisions were integral to the completion of the task for which the discretion in question existed. Because of

this, we are not persuaded that the cited Gaubert example is on point

here. 

10 HAWES v. UNITED STATES
involves the allocation and management of scarce military resources,

we find that the underlying decisions implicate economic policy. 

Critically, SSgt. Raventos was also acting with an eye toward military policy when he made the discretionary decisions to leave the

plank unbolted and to dismiss his marines for the day. It must be reiterated that the purpose of this military equipment was to train marines

for combat. As Major Clarke testified: "[The NATO obstacle course]

was put together to have obstacles that you may want — you may

need to negotiate during combat. It is a variety of climbing, jumping,

skills. . . ." J.A. 774 (emphasis added). Thus, this military equipment

is integral to the Marine Corps’ policy of effectively training Marines

for combat while reducing unnecessary risks.5

5This critical fact is an important distinction between the facts of this

case and Gotha v. United States, 115 F.3d 176 (3d Cir. 1997), which the

dissent cites to support its position. In Gotha, the Third Circuit faced a

challenge to the Navy’s failure to provide a stairway with handrails and

sufficient lighting on a public road. Id. at 178. There, where an employee

of an independent contractor hired by the Navy to perform maintenance

such as plumbing, carpentry, and roofing on the United States Naval

UnderWater Tracking Range fell and was injured, Gotha v. United

States, 929 F. Supp. 207, 209 (D.V.I. 1996) (overruled), the Third Circuit

held that the discretionary function exception was not applicable. Gotha,

115 F.3d at 182. 

However, the maintenance in Gotha, unlike that before us today, had

no relation to the military or to national security, except that the roofs the

independent contractors were hired to maintain were located on a military base. As the Third Circuit correctly found, "[t]his case is not about

a national security concern, but rather a mundane, administrative,

garden-variety, housekeeping problem that is about as far removed from

the policies applicable to the Navy’s mission." Id. at 181. Given that the

purpose of the NATO obstacle course was to train marines for combat

and not to simply facilitate exercise, the maintenance here clearly was

related to national security. The Marine Corps’ policy of effectively

training Marines for combat while reducing unnecessary risks was implicated. Because of this distinction, this case is not about "mundane,

administrative, garden variety, housekeeping" problems, and the result

reached here is not at odds with that reached by the Gotha court. Id.

Further, we would note that Gotha appears to be somewhat at odds

with our decision in Bowman v. United States, 820 F.2d 1393, 1395 (4th

HAWES v. UNITED STATES 11
Finally, SSgt. Raventos’s decisions were grounded in Base policy.

SSgt. Raventos testified that "[m]ost Marines and Navy personnel

know that they need authorization to go to these courses and need a

Navy corpsman available just in case injury happens." J.A. 900. He

further testified that these rules constituted a "standing order." Id. at

901. In fact, Maj. Clarke had closed the obstacle course when the new

plank was received. Id. at 780. As a result, anyone who, in accordance

with military policy, made a formal request to use the course, would

be denied. Id. Still further, the Base’s Standard Operating Procedures

for training areas, implemented to ensure the safe use and maintenance of the training areas, mandated that anyone who runs "any of

the course, whether it’s the NATO Obstacle or Confidence Course

. . . needs to inspect the course before they run it." J.A. 664, 783. 

Contrary to Hawes’s assertions, we cannot view SSgt. Raventos’s

decision in a vacuum. Nor can we engage in the academic exercise

of breaking down the completion of a task into pieces so infintesimal

that we lose sight of the context in which those decisions were made.

As was stated earlier, we must view any challenged decisions through

the tinted lense of context to determine whether they are susceptible

to policy analysis. In Smith we did just that. There, after finding that

the repair/maintenance decisions regarding the escalators "implicated

the ecopolicy of the METRO, i.e., whether it was more cost-effective

to reassemble Escalator Three pending repair, or whether to wait until

replacement parts arrived," Smith, 290 F.3d at 210, we found that the

discretionary function exception protected not only the decisions to

use one escalator as a stationary walker and the decision to leave

another escalator disassembled, but also the decision "to provide no

specific warning to its patrons of the situation at the station." Id. at

212. The same broad coverage must be applied in this case. 

SSgt. Raventos was charged with repairing military equipment,

which was a discretionary function. This fact mandates that we proCir. 1987), where we held that the failure of the National Park Service

to erect a guardrail was a policy determination protected by the discretionary function exception. In fact, the Third Circuit recognized the factual similarity between the two cases. Id. at 182. While the Third Circuit

was under no binding obligation to follow Bowman, its precedential

value is obviously much greater in this court. 

12 HAWES v. UNITED STATES
tect the underlying decisions integral to the exercise of that discretion.6

Otherwise, we say to the military "you have the discretion to maintain

military equipment but you don’t have the discretion to determine

how you do so." Importantly, we note that there is no allegation that

Hawes’s injuries were caused by actions or decisions falling outside

the scope of said repairs. Thus, the result Hawes seeks would inject

this court within the military chain of command and have us second

guess SSgt. Raventos’s decisions concerning the completion of a military task and the marines within his charge. We see no sound reason

to navigate that minefield. 

As such, we find that the district court did not err in finding that

the decisions in question were protected by the discretionary function

exception. The decision of the district court is therefore

AFFIRMED.

DIANA GRIBBON MOTZ, Circuit Judge, dissenting: 

Because the majority applies the discretionary function exception

in a way that drains the Federal Tort Claims Act of all meaning, I

must respectfully dissent. 

I.

The Federal Tort Claims Act specifically authorizes suits against

the United States for "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," when the

United States, "if a private person, would be liable." 28 U.S.C.A.

§ 1346(b)(1) (West 1993 & Supp. 2004). Thus, by enacting this legislation, Congress determined that "the United States should waive its

historic defense of sovereign immunity and accept liability for the

negligent conduct of government employees who are acting within

the scope of their official duties." 14 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3658, at 529 (1998)

(footnotes omitted). 

6As the Gaubert court noted, the fact that they are operational in nature

is of no consequence. See Gaubert, 499 U.S. at 325. 

HAWES v. UNITED STATES 13
To "prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy,"

United States v. Varig Airlines, 467 U.S. 797, 814 (1984), the Act

provides an exception to this waiver of sovereign immunity when

government employees exercise a "discretionary function." 28

U.S.C.A. § 2680(a) (West 1994). The statute does not define what

constitutes a discretionary function. But, the Supreme Court has

established a two-step inquiry to discern whether the discretionary

function exception applies. See Berkovitz v. United States, 486 U.S.

531, 536 (1988).1

As the first step, the court must determine whether the challenged

conduct of a government employee "involves an element of judgment

or choice" or whether "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id.

(citation omitted). The parties agree that no statute, regulation, or policy mandated the course of action taken here; thus the challenged acts

involve some "matter of choice." See id. 

Therefore, we must move to the second step of the Berkovitz

inquiry, i.e., the determination of whether the challenged conduct is

"of the kind that the discretionary function exception was designed to

shield." Id. The exception "protects only governmental actions and

decisions based on considerations of public policy." Id. at 537 (citation omitted). Moreover, in order to obtain the discretionary function

shield, discretionary acts must further a public policy that the particular "regulatory regime seeks to accomplish." United States v. Gaubert,

499 U.S. 315, 325 n.7 (1991). 

With these principles in mind, I turn to the case at hand. 

1We have never squarely considered the question of which party bears

the burden of proof in a discretionary function case. I see no reason for

us to decide that question here because the outcome of this case does not

depend on its answer. But, contrary to the majority’s suggestion,

"[a]lthough the plaintiff bears the initial burden of proving subject matter

jurisdiction under the Federal Tort Claims Act, most courts have concluded that the burden of proving the applicability of the discretionaryfunction exception falls upon the United States." Wright, Miller & Cooper, supra, § 3658.1, at 639. 

14 HAWES v. UNITED STATES
II.

In this case, Rawls R. Hawes alleges that he suffered severe and

permanent injuries because, as a result of the negligence of government employee Staff Sergeant Raventos, the Scale of Integrity’s

wooden plank was not firmly secured to its posts and there was inadequate warning of the danger. Hawes challenges SSgt. Raventos’ decisions to: (1) place the heavy plank on, but unsecured to, posts ten feet

above ground, even though the bolts he had ordered were too short;

(2) dismiss the work crew at noon without remedying this situation,

leaving the plank in an unreasonably "unsafe and hazardous condition" over a long holiday weekend; and (3) fail to provide "adequate

and reasonable warnings" of this hazardous condition. See Am.

Compl. ¶¶ 11-16.2

Rather than argue that these allegedly negligent decisions of SSgt.

Raventos were grounded in regulatory policy, the Government asserts

that "the decisions made by the Marine Corps" were grounded in policy. Brief of Appellee at 22 (emphasis added). According to the Government, the proper focus is not "on the actions performed by one

individual," id. at 36, but on the "broader framework" of the Marine

Corps’ decisions, id. at 46, which, it claims, involved "(1) the creation

and implementation of safety protocols for the use and maintenance

of military unique equipment, operations and systems; and (2) the

development and administration of a recreational program on base."

Id. at 22. 

Thus, the Government seeks to recast this case, focusing on the

purportedly broad economic and political implications of the Marine

Corps’ decision to repair the NATO obstacle course rather than on the

specific conduct of the person doing the repairs. Perhaps the Govern2At this stage of the proceedings, a court need not, and should not,

consider whether SSgt. Raventos was in fact negligent. See, e.g., Duke

v. Dep’t of Agriculture, 131 F.3d 1407, 1410 (10th Cir. 1997) (noting

that "in applying the discretionary function exception we do not consider

whether the decision or nondecision was negligent or wrong"). For that

reason, SSgt. Raventos’ substantive defense of his conduct, which the

majority cites, seemingly with approval, see ante at 3 n.1, is at this juncture irrelevant. 

HAWES v. UNITED STATES 15
ment has adopted this strategy because it recognizes the weakness of

its argument that the discretionary function exception applies to SSgt.

Raventos’ decisions. In any event, the Supreme Court has rejected the

Government’s approach. The Court has explained that the "basic

inquiry concerning the application of the discretionary function

exception is whether the challenged acts of a Government employee

— whatever his or her rank — are of the nature and quality that Congress intended to shield from tort liability." Varig Airlines, 467 U.S.

at 813 (emphasis added). 

Accordingly, as the majority recognizes, the proper focus is not on

the Marine Corps’ decision to repair the Scale of Integrity but on

SSgt. Raventos’ specific conduct. See ante at 8 (explaining that "we

focus on SSgt. Raventos’s decisions to cease the repair of the Scale

of Integrity until after the weekend holiday and the alleged failure to

warn adequately").3 The majority, however, going beyond even what

the Government was willing to argue, holds that SSgt. Raventos’ conduct "involves the allocation and management of scarce military

resources," thereby "implicat[ing] economic policy" and triggering

the exception. Ante at 11. In other words, incredibly, the majority

concludes that SSgt. Raventos’ decision to leave a large heavy plank

used for exercise unbolted to its posts ten feet above the ground without an adequate warning over a long weekend was "grounded in regulatory policy." See Gaubert, 499 U.S. at 325 n.7. 

In so holding, the majority allows the discretionary function exception to swallow the Federal Tort Claims Act’s waiver of sovereign

immunity. This holding, of course, is at odds with the judgment of

Congress, reflected in the Act, that the government will generally

accept responsibility for the negligence of its employees when they

act within the scope of their employment. 

3This does not mean that a court should attempt to discern the "subjective intent" underlying challenged acts. See Gaubert, 499 U.S. at 325.

Rather, we "look to the nature of the challenged decision[s] in an objective, or general sense, and ask whether th[ose] decision[s] [are] one[s]

which we would expect inherently to be grounded in considerations of

policy." Baum v. United States, 986 F.2d 716, 720-21 (4th Cir. 1993). 

16 HAWES v. UNITED STATES
Moreover, the Supreme Court has expressly disavowed such a

holding. The Court has instructed that "[t]here are obviously discretionary acts performed by a Government agent that are within the

scope of his employment but not within the discretionary function

exception." Gaubert, 499 U.S. at 325 n.7. These are acts that "cannot

be said to be based on the purposes that the regulatory regime seeks

to accomplish." Id. For example, the Gaubert Court noted that if one

of the federal bank regulators in the case before it, while on official

business, drove his car negligently and thereby caused an accident,

the discretionary function exception "would not apply." Id. This is so,

the Court explained, because even though "driving requires the constant exercise of discretion, the official’s decisions in exercising that

discretion can hardly be said to be grounded in regulatory policy." Id.

So it is here. Certainly, deciding to leave a heavy wooden exercise

plank unbolted to ten-foot high posts over a long weekend without

adequate warning calls for the exercise of discretion. But the exercise

of that discretion "can hardly be said to be grounded in" public policy.

See id. SSgt. Raventos’ decisions may have tangentially "involve[d]"

the allocation and management of military resources, ante at 11, just

as the Gaubert driver’s negligent acts may have tangentially "involve[d]" the allocation and management of federal bank regulatory

resources; but SSgt. Raventos’ decisions were no more "grounded in"

military policy than the decisions of the negligent driver in Gaubert

were "grounded in" banking regulatory policy. See Gaubert, 499 U.S.

at 325 n.7. SSgt. Raventos’ decisions, like those of the negligent

driver, were simply not judgments "of the kind that the discretionary

function exception was designed to shield." Berkovitz, 486 U.S. at

536. 

The majority attempts to distinguish Gaubert (and other precedent)

from the case at hand seemingly on the basis of its own determination

that SSgt. Raventos was repairing "military equipment" somehow

unique and "integral" to "train[ing] Marines for combat." See ante at

10 n.4, 11 & n.5, 12. But, although the Government does contend that

the obstacle constituted "military unique equipment, " the district

court never resolved this question. See Hawes v. United States, 322

F. Supp. 2d 638, 644 n.9, 645 (E.D. Va. 2004). Thus, to the extent

that the majority resolves this factual issue in the first instance, it

commits basic and fundamental error. See, e.g., 5B Wright & Miller,

HAWES v. UNITED STATES 17
Federal Practice and Procedure: Civil 3d, § 1350, at 255-264 (2004)

(and cases cited therein). 

Furthermore, even if an appellate court had the power to make this

factual finding, it would be impossible to do so fairly at this juncture.

Whether the obstacle actually did constitute "military unique equipment" that was "integral" to "train[ing] Marines for combat" is so

fiercely contested at present that further evidentiary development is

necessary. The Marine Corps manual on which the Government relies

defines "military-unique equipment" as "[e]quipment and systems that

are unique to the national defense mission," such as "military weapons, aircraft, ships, submarines, missiles and missile sites, early warning systems and sites, military space systems, ordnance, tanks, and

tactical vehicles," without mention of obstacles or exercise equipment. J.A. 652. Moreover, the record evidence of wide public access

to the obstacle suggests that it was not "unique to the national defense

mission": in response to Hawes’ interrogatory asking the Government

to identify all relevant restrictions on civilian access to the obstacle,

the Government conceded that at the time of the accident, Camp Barrett, where the obstacle is located, was an "open base" that "anyone

[could] drive on or off without passing an armed sentry post." J.A. 1004.4

Finally, even if the majority could resolve in the first instance a

hotly disputed factual question and could fairly find on the present

record that the obstacle constituted "military unique equipment," it

would make no difference in this case. The discretionary function

exception would not shield SSgt. Raventos’ assertedly negligent

repair decisions even if the obstacle he was repairing was "military

unique equipment" any more than the exception would shield the

Gaubert bank regulator’s negligent driving decisions even if the car

he was driving was outfitted with "banking unique equipment" (for

example, special computers). Like the Gaubert driver, SSgt. Raventos’ decision to leave a heavy exercise plank — even one "military

unique" — unbolted ten feet above the ground over a long weekend

in the course of making ordinary repairs to it "can hardly be said to

be grounded in" any public policy. Gaubert, 499 U.S. at 325 n.7. The

4This evidence also flatly contradicts the testimony of SSgt. Raventos

and Major Clarke — which the majority cites approvingly — regarding

access to the obstacle course. See ante at 12. 

18 HAWES v. UNITED STATES
majority’s utter failure to provide any legitimate basis for distinguishing SSgt. Raventos’ alleged negligence from that of the driver in Gaubert confirms its misguided approach to this case. 

III.

Nor, contrary to the majority’s suggestion, does circuit precedent

support its holding. In this circuit, we may have "interpreted the

phrase ‘public policy’ broadly," ante at 8, but we have never held that

garden-variety housekeeping decisions like those at issue here are

"grounded in" public policy and protected by the discretionary function exception. 

Indeed, examination of our precedent reveals that in every instance

in which we have held the discretionary function exception to apply,

the challenged government conduct constituted acts truly rooted in

public policy. See, e.g., Minns v. United States, 155 F.3d 445, 452

(4th Cir. 1998) (inoculation of military servicemen against potential

biological and chemical attack); Baum, 986 F.2d at 723 n.3, 724

("design and construction" of guardrails over Baltimore-Washington

Parkway); Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.

1987) ("design and use" of guardrails and signs along Blue Ridge

Parkway); see also Smith v. WMATA, 290 F.3d 201, 208-09 (4th Cir.

2002) (utilization of escalator during "emergency situation" at

METRO station). The challenged acts in these cases provide a striking contrast to the acts at issue here. In fact, in Baum, we recognized

this difference, noting that "not . . . every maintenance decision of

every government actor is so policy-based as to fall within the discretionary function exception." 986 F.2d at 724. Today’s decision renders those words hollow. 

In the case most similar factually to the one at hand, the Second

Circuit concluded after careful analysis that a challenge to a government employee’s asserted negligence in ordinary maintenance of

prison weight equipment was not barred by the discretionary function

exception. See Coulthurst v. United States, 214 F.3d 106 (2d Cir.

2000). In Coulthurst an inmate sued the government for serious injuries he sustained while exercising on a lateral pull-down machine

when the "cable connecting the steel pull-down bar to the weights

snapped, bringing the bar down onto his shoulders and neck with

HAWES v. UNITED STATES 19
approximately 270 pounds of force." Id. at 107. The court held that

"[u]nder various fair readings of the complaint," the prisoner’s claim

"involves negligence unrelated to any plausible policy objectives." Id.

at 111. The court explained that a government inspector’s laziness in

failing to inspect the machine or "to notify the appropriate authorities

upon noticing the damaged cable, are examples of negligence . . . that

do not involve ‘considerations of public policy.’" Id. (quoting Gaubert, 499 U.S. at 323). "Such actions do not reflect the kind of considered judgment ‘grounded in social, economic, and political policy’"

that the discretionary function exception shields "from ‘judicial "second guessing."’" Id. (quoting Varig Airlines, 467 U.S. at 814). 

The same must be said with respect to SSgt. Raventos’ alleged negligence. It simply goes too far to hold that his decisions to hoist the

obstacle’s plank onto its posts even though the bolts he had ordered

were too short, to dismiss his crew at noon without remedying the situation, and to leave the plank unbolted ten feet above ground over a

long weekend without posting a prominent warning, reflect judgments

"grounded in social, economic, and political policy" and shielded by

the discretionary function exception.

Our sister circuits have recognized this, concluding that similar

non-policy-based government acts are not protected by the discretionary function exception. Indeed, as one court has noted, a holding that

"torts stemming from garden variety decisions fall outside the discretionary function exception is consistent with a primary motive behind

the [Federal Tort Claims Act]." Cestonaro v. United States, 211 F.3d

749, 755 (3d Cir. 2000) (holding asserted negligence in failure to provide adequate lighting or warning in federally controlled parking lot

not shielded by discretionary function exception). Since "[t]he question" as to whether the discretionary function exception applies "is not

whether there is any discretion at all, but whether the discretion is

grounded in the policy of the regulatory regime," the proper analysis

looks to "whether the decision is fraught with economic, political, or

social judgments." Cope v. Scott, 45 F.3d 445, 449-50 (D.C. Cir.

1995) (internal quotation marks and citation omitted) (holding that

asserted failure to post adequate warning signs along commuter road

not shielded by discretionary function exception); see also Boyd v.

United States, 881 F.2d 895, 898 (10th Cir. 1989) (holding that

asserted failure to warn of danger in offshore swimming area "does

20 HAWES v. UNITED STATES
not implicate any social, economic, or political policy judgments with

which the discretionary function exception properly is concerned").

The decisions of SSgt. Raventos challenged here are no more "fraught

with economic, political, or social judgments," Cope, 45 F.3d at 450

(internal quotation marks omitted), than were those at issue in

Coulthurst, Cestonaro, Cope, or Boyd. 

Finally, notwithstanding the majority’s suggestion to the contrary,

SSgt. Raventos’ status as a military officer does not transform his

ordinary workaday decisions into ones of "‘military discretion’" due

special deference. Ante at 10 (quoting Minns, 155 F.3d at 451 (citing

Tiffany v. United States, 931 F.2d 271, 277 (4th Cir. 1991))). As the

cases relied on by the majority make clear, deference is due only

when "discretionary decisions are ones of professional military discretion," like the determination that inoculation against biological or

chemical attack is warranted, Minns, 155 F.3d at 451 (emphasis

added), or the determination of what constitutes appropriate "defense

of national borders." Tiffany, 931 F.2d at 278. This case simply does

not involve the exercise of "professional military discretion." 

As the Third Circuit held in rejecting the argument that the discretionary function exception barred a negligence claim against the government for the conduct of a Navy employee:

This case is not about a national security concern, but rather

a mundane, administrative, garden-variety, housekeeping

problem that is about as far removed from the policies applicable to the Navy’s mission as it is possible to get. 

Gotha v. United States, 115 F.3d 176, 181 (3d Cir. 1997) (holding

discretionary function exception is no shield to claim of negligence

in failing to provide handrails or adequate lighting on footpath).

These words are equally applicable here. The Gotha Court found it

"difficult to conceive of a case more likely to have been within the

contemplation of Congress when it abrogated sovereign immunity"

than the one before it. Id. at 182. An appropriate application of the

discretionary function exception leads to precisely the same conclusion in this case. 

HAWES v. UNITED STATES 21
IV.

The discretionary function exception serves the important purpose

of protecting the government from tort suits that challenge its policymaking authority. But when the exception is used to shield the government from liability resulting from ordinary garden-variety

negligence not "grounded in" any public policy, it subverts the very

purpose of the Act. As the Supreme Court has recognized, certain

decisions, even though made in connection with "official duties" and

even though discretionary in nature, are not shielded by the discretionary function exception because "the decisions in exercising that

discretion can hardly be said to be grounded in regulatory policy."

Gaubert, 499 U.S. at 325 n.7. The acts challenged here involve precisely such non-policy-grounded decisions. The majority’s contrary

holding makes it hard to imagine any situation involving a discretionary decision other than one resulting in a traffic accident in which the

government would be subject to suit for employee negligence.

Clearly, that could not have been Congress’ purpose in enacting the

Federal Tort Claims Act.

22 HAWES v. UNITED STATES