UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-1642

RONNIE L. BLANKENSHIP,

Plaintiff – Appellant,

v.

UNITED STATES OF AMERICA,

Defendant – Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at 

Huntington. Robert C. Chambers, District Judge. (3:18-cv-01309)

Submitted: April 25, 2022 Decided: June 1, 2022

Before WILKINSON, RICHARDSON, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Tyler C. Haslam, HASLAM LAW FIRM LLC, Proctorville, Ohio, for 

Appellant. Michael B. Stuart, United States Attorney, Jason S. Bailey, Assistant United 

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

USCA4 Appeal: 20-1642 Doc: 29 Filed: 06/01/2022 Pg: 1 of 9
2

PER CURIAM:

Ronnie Blankenship brought this Federal Tort Claims Act (FTCA) suit against the 

United States for malicious prosecution and intentional infliction of emotional distress after 

he was acquitted of stealing from his employer, the Department of Veterans Affairs (VA). 

The district court granted the Government’s motion to dismiss for lack of jurisdiction, 

ruling that the discretionary function exception to the FTCA’s waiver of sovereign 

immunity applied. See 28 U.S.C. § 2680(a). For the following reasons, we affirm.

I.

Blankenship worked at a VA Medical Center in Huntington, West Virginia. In

September 2014, Blankenship and his friend John Erik Stone removed a meat slicer from 

the VA premises—from either a dumpster or the back of a golf cart, depending on who you 

ask. Stone later posted the meat slicer for sale on the Internet, and a fellow employee 

noticed and told her supervisor, who reported it to the VA Police Service. Two VA police

officers—Service Patrol Officer Joseph Wayman and Lieutenant Darrell Booth—

investigated the theft; they also notified the Federal Bureau of Investigation and the 

Huntington Police Department.

The officers arranged an undercover operation to catch the thief. Booth contacted 

Stone to buy the meat slicer, and Stone connected Booth with Blankenship to make the 

sale. When Blankenship met with Huntington Police Detective Sergeant Brian Lucas to 

transfer the meat slicer, Lucas verified the serial number and arrested Blankenship. He

was charged in state court but ultimately acquitted.

USCA4 Appeal: 20-1642 Doc: 29 Filed: 06/01/2022 Pg: 2 of 9
3

Blankenship then sued the United States under the FTCA, which authorizes suits 

against the federal government based on state law. His amended complaint included counts 

for malicious prosecution and intentional infliction of emotional distress, alleging that VA 

police officers “initiated and persisted with maintaining a criminal proceeding against 

[Blankenship] which they knew was unfounded and lacked a basis in law or fact.” J.A. 22. 

According to the complaint, the VA had “no policies regarding abandonment of inoperable

property,” “no rule, regulation or policy prohibiting [VA] employees from taking 

abandoned and discarded items from the dumpster,” and no “authority to arrest [VA] 

employees for removing discarded property from the subject dumpster.” J.A. 11–12. 

Blankenship also brought a count for defamation, which he does not pursue on appeal. 

The Government moved to dismiss the amended complaint for lack of subject matter 

jurisdiction, see Fed. R. Civ. P. 12(b)(1), and relied on extrinsic evidence to contest a 

number of Blankenship’s jurisdictional allegations. For example, the Government cited 38 

C.F.R. § 1.218(a)(3), which prohibits “removal of Government property or any part 

thereof, without authorization,” and a 2013 VA policy prohibiting “the actual or attempted 

theft, and/or removal of any VA property, or any part thereof . . . includ[ing] . . . trash,”

J.A. 147. Blankenship responded with evidence of his own. Applying the summary 

judgment standard to the parties’ competing submissions, see Richmond, Fredericksburg 

& Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991), the district court 

concluded that no dispute of material jurisdictional fact existed and that the FTCA’s 

discretionary function exception barred Blankenship’s claims for malicious prosecution 

and intentional infliction of emotional distress. See Blankenship v. United States, No. 3:18-

USCA4 Appeal: 20-1642 Doc: 29 Filed: 06/01/2022 Pg: 3 of 9
4

cv-1309, 2020 WL 1860715 (S.D. W. Va. Apr. 9, 2020). The court explained that federal 

law and VA policies grant VA police officers broad law enforcement and arrest powers 

with respect to acts occurring on VA property, including significant “discretion in 

determining the methods, aims, and results” of any investigation and prosecution. Id. at 

*4. Blankenship appealed.

II.

We review de novo the district court’s decision dismissing this case for lack of 

subject matter jurisdiction. See Rich v. United States, 811 F.3d 140, 144 (4th Cir. 2015). 

A.

As an initial matter, Blankenship contends that the district court erred by construing

the Government’s jurisdictional challenge as factual rather than facial. According to 

Blankenship, the district court should have assumed the truthfulness of his jurisdictional 

allegations rather than considering whether the parties’ extrinsic evidence demonstrated a 

dispute of material fact. Because the Government contested the allegations supporting 

subject matter jurisdiction and the parties both introduced evidence, we conclude that the

district court was correct to “go beyond the allegations in the complaint” and “determine 

if there are facts to support the jurisdictional allegations.” Id. at 145 (internal quotation 

marks omitted). 

Blankenship alternatively argues that, assuming the jurisdictional facts are disputed, 

they are “so intertwined with the merits that dismissal under Rule 12(b)(1) was 

inappropriate.” Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009). In support, he 

asserts that the parties dispute “what investigatory actions Officer Booth and Officer 

USCA4 Appeal: 20-1642 Doc: 29 Filed: 06/01/2022 Pg: 4 of 9
5

Wayman were required to take in order to conduct an off-property investigation into 

allegations of theft” of VA property. Opening Br. 16. Upon review, we conclude that the 

facts necessary to determine whether the officers’ investigation and prosecution qualifies 

as a discretionary function differ from the proof “required to establish the substantive 

elements of [Blankenship’s] claims” of malicious prosecution and intentional infliction of 

emotional distress—they are “wholly distinct.” United States ex rel. Vuyyuru v. Jadhav, 

555 F.3d 337, 350 (4th Cir. 2009); see Norfolk S. Ry. Co. v. Higginbotham, 721 S.E.2d 

541, 545–546 (W. Va. 2011) (elements of malicious prosecution claim); Hatfield v. Health 

Mgmt. Assocs. of W. Va., 672 S.E.2d 395, 404 (W. Va. 2008) (elements of intentional 

infliction of emotional distress claim). The district court therefore appropriately resolved 

the jurisdictional dispute on the Government’s motion to dismiss.

B.

We now turn to the substance of Blankenship’s appeal. The United States is 

generally immune from claims for money damages in civil suits, but the FTCA waives that

immunity in certain circumstances, rendering the United States liable in tort “in accordance

with the law of the place where the act or omission occurred” in the same manner as a 

private individual. 28 U.S.C. § 1346(b)(1); see id. § 2674. “However, this broad waiver 

of sovereign immunity is cabined by a list of exceptions.” Blanco Ayala v. United States, 

982 F.3d 209, 214 (4th Cir. 2020); see 28 U.S.C. § 2680. As relevant here, the FTCA

“shall not apply to . . . [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.” 28 U.S.C. 

USCA4 Appeal: 20-1642 Doc: 29 Filed: 06/01/2022 Pg: 5 of 9
6

§ 2680(a). Because the exception deprives the court of subject matter jurisdiction, the 

burden is on the plaintiff—here, Blankenship—to establish that the exception does not 

apply to foreclose his claim. See Blanco Ayala, 982 F.3d at 214.

Courts apply a two-pronged test to determine whether conduct qualifies for the 

discretionary function exception. “First, a court considers whether the challenged 

governmental conduct involves an element of judgment or choice.” Rich, 811 F.3d at 144 

(citing United States v. Gaubert, 499 U.S. 315, 322 (1991)). When “a federal statute, 

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

there is no discretion, and the exception does not apply. Berkovitz v. United States, 486 

U.S. 531, 536 (1988). “Second, if the challenged conduct does involve an element of 

judgment, the court must then determine whether the judgment was one that the exception 

was designed to protect, namely, a judgment based on considerations of public policy.” 

Rich, 811 F.3d at 144. When a government agent has authority to exercise discretion, the 

court should “‘presume[] that the agent’s acts are grounded in policy when exercising that 

discretion.’” Blanco Ayala, 982 F.3d at 214 (quoting Gaubert, 499 U.S. at 324). In 

conducting this analysis, the court considers the decision “in an objective, or general sense” 

to determine whether it is one “we would expect inherently to be grounded in 

considerations of policy,” not whether the government agents involved in the case actually 

contemplated policy considerations in making their decisions. Baum v. United States, 986 

F.2d 716, 721 (4th Cir. 1993).

We begin with the first prong of the analysis. In his complaint, Blankenship alleges 

that VA police officers are liable for malicious prosecution and intentional infliction of 

USCA4 Appeal: 20-1642 Doc: 29 Filed: 06/01/2022 Pg: 6 of 9
7

emotional distress arising from their arrest and prosecution of Blankenship for the alleged 

theft of the meat slicer. Blankenship does not contest that whether and how to investigate 

and prosecute are generally matters of discretion. See Blanco Ayala, 982 F.3d at 215 (“No 

one can doubt that the investigation of (potential) crimes is a discretion-laden subject.” 

(internal quotation marks and brackets omitted)). Indeed, discretion infuses the process at 

every step—“whether to investigate a possible violation of . . . law, how to conduct that 

investigation, and then whether to bring an enforcement action after drawing factual and 

legal conclusions.” Id. at 216. Instead, Blankenship scours VA policies for mandatory 

language to find some command that the officers violated. But none of the three candidates 

he identifies shows that his “claim [is] based upon” anything other than “the exercise or 

performance . . . [of] a discretionary function or duty.” 28 U.S.C. § 2680(a).

First, Blankenship asserts that federal law and relevant policies impose a 

nondiscretionary duty to investigate offenses occurring on VA property. See, e.g., 38 

U.S.C. § 902(a)(1)(E) (stating officers “shall . . . conduct investigations”). Even accepting 

that characterization, nowhere does Blankenship allege that any officer violated this duty; 

indeed, his claims are premised on the assertion that the officers did investigate the theft. 

Cf. Holbrook v. United States, 673 F.3d 341, 348 (4th Cir. 2012) (“[T]he existence of some 

mandatory language does not eliminate discretion[.]” (internal quotation marks omitted)).

Second, Blankenship alludes to the probable existence of a “Standard Operating 

Procedure” document referenced in the VA handbook, and he surmises that it may contain 

requirements for conducting VA investigations. This speculation does not demonstrate a 

USCA4 Appeal: 20-1642 Doc: 29 Filed: 06/01/2022 Pg: 7 of 9
8

genuine dispute of material fact. See Richmond, Fredericksburg & Potomac R.R. Co., 945 

F.2d at 768. 

Third, Blankenship contends that off-property investigations require approval from 

the Office of Operations, Security, and Preparedness, Office of Security and Law 

Enforcement (OSLE). He notes that the VA officer handbook requires VA police officers 

to obtain this approval and document it in the “Police System Uniform Offense Report.” 

He “believe[s]” that the Investigative Report in the record is the Uniform Offense Report 

and notes that it does not mention obtaining OSLE approval. Opening Br. 19–20. The 

district court rejected this argument because Blankenship provides no reason to assume the 

Investigative Report would indicate OSLE approval if granted, see Blankenship, 2020 WL 

1860715, at *5, and Blankenship does not respond to the district court’s reasoning on 

appeal. Moreover, Blankenship’s allegation could not carry his jurisdictional burden even 

if it were true. OSLE approval is unrelated to his claims, which are “based upon” the 

fundamentally discretionary acts of arrest and prosecution. 28 U.S.C. § 2680(a). He offers 

no explanation for how failure to obtain OSLE approval at the beginning of the 

investigation would render any element of his arrest or prosecution nondiscretionary.

As for the second prong of the discretionary function analysis, Blankenship makes 

no argument. We have previously acknowledged that “the grant of discretion creates a 

strong presumption that a discretionary act so authorized involves considerations of public 

policy.” Blanco Ayala, 982 F.3d at 217 (internal quotation marks and brackets omitted). 

We accordingly conclude that the VA officers’ actions “investigating and responding to 

USCA4 Appeal: 20-1642 Doc: 29 Filed: 06/01/2022 Pg: 8 of 9
9

potential violations of . . . law,” including their decisions to arrest and prosecute, were

“based on considerations of public policy.” Id. (internal quotation marks omitted).

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

USCA4 Appeal: 20-1642 Doc: 29 Filed: 06/01/2022 Pg: 9 of 9