UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUZANNE B. ZIELINSKI,

Plaintiff-Appellant,

v. No. 95-2160

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

(CA-92-90-L)

Argued: March 6, 1996

Decided: June 6, 1996

Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Henry E. Weil, BELLI, WEIL & GROZBEAN, P.C.,

Rockville, Maryland, for Appellant. Roann Nichols, Assistant United

States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:

Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Suzanne Zielinski brought this suit against the United States pursuant to the Federal Tort Claims Act ("FTCA"). The district court

granted judgment for the United States based on the discretionary

function exception to the FTCA. Ms. Zielinski appeals. Finding no

reversible error, we affirm.

I.

Ms. Zielinski was kidnapped from her home on the Naval Station

in Guam. Her abductor, Kenneth Quenga Rappolla, gained entry to

the base by presenting his Army Reserve identification card at the

front gate. He then obtained a temporary decal pass for his vehicle

from the Pass and Decal office on the base. After kidnapping and

assaulting Ms. Zielinski, Rappolla drove her off the base where he

further assaulted her. Rappolla was subsequently captured, tried, convicted, and imprisoned for his crimes.

Ms. Zielinski brought this suit against the United States, asserting

that the government was negligent in failing to provide adequate

security at the base. She alleged that this negligence permitted Rappolla, a person who had been specifically barred from the base, to

gain access to the base and commit the assaults.

Prior to trial, both Ms. Zielinski and the United States moved for

summary judgment. Ms. Zielinski based her motion on the FTCA and

her evidence assertedly demonstrating the government's negligence;

the government based its motion on the applicability of the discretionary function exception to the FTCA. The district court denied both

motions but narrowed the issues for trial. The court held that the government's decisions regarding the extent of the security procedures

necessary at the base fell within the discretionary function exception

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to the FTCA. Nevertheless, the court concluded that Ms. Zielinski

could still succeed on her claim if she could demonstrate that the base

had, in fact, implemented security measures and"security personnel

failed to carry out a task specifically required of them."

Noting a conflict in the evidence as to whether the base policy

required security personnel to check all I.D. cards against the debarment list before permitting entry or merely to check non-military I.D.

cards, the court held that a trial was required solely on this issue. The

court ruled that if the actual policy required personnel to check only

non-military I.D. cards against the list, the government would be entitled to judgment under the discretionary function exception; however,

if the policy was to check all I.D. cards, Ms. Zielinski could proceed

with her claim. The court then scheduled a non-jury trial on the issue

of which policy was actually in effect on the base.

At the conclusion of this trial, the district court issued a memorandum opinion granting judgment to the government. The court found

as a fact that the policy in effect at the time of the assault required

security personnel to check only non-military I.D. cards against the

debarment list. Therefore, security personnel had no mandatory duty

to check military I.D. cards against the debarment list. Since Rappolla

had a military I.D., the security personnel violated no mandatory duty

in failing to check his name against the debarment list before issuing

him the temporary pass. Instead, in permitting Rappolla access to the

base, security personnel were performing a discretionary security

function and therefore, even if they were negligent, the discretionary

function exception applied. The district court concluded that "Ms.

Zielinski has not satisfied her burden on the issues for trial," and

awarded judgment in the government's favor.

II.

Ms. Zielinski appeals the court's decision on two grounds. She first

maintains that the district court committed clear error in finding that

the base did not have a mandatory policy for checking all I.D cards,

including military I.D. cards, against a debarment list before permitting entry to the base.

There was conflicting testimony on the issue of the policy actually

in effect. Ms. Zielinski offered extensive evidence, including deposi-

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tion testimony from several individuals involved in checking I.D.

cards -- testimony which indicated that those individuals believed the

policy in effect was to check all I.D. cards. She also relied on a written "policy," of unknown origin or vintage, which stated that security

personnel were to check all I.D. cards against the debarment list

before issuing temporary passes. In opposition, the government

offered the testimony of Captain Marchetti, the base commander ultimately responsible for security at the base. Captain Marchetti testified

that the security procedure in effect at the base was to check only

civilian I.D. cards against the debarment list, not military I.D. cards.

This was in part, Captain Marchetti testified, because the military

takes care of its own problems and, therefore, it was only necessary

to check civilian I.D. cards. After considering this evidence, the district court found as a fact that the security procedure in effect at the

base did not require security personnel to check all I.D. cards against

the debarment list, but only non-military I.D. cards. Accordingly, the

court ruled that security personnel had not violated any mandatory

requirements when they failed to check Rappolla's Army Reserve

I.D. against the debarment list and, thus, the discretionary exception

applied.

Ms. Zielinski asserts that this finding was clearly erroneous. The

district court listened to the testimony of the base commander and

found him to have "excellent and precise recall" of the security procedures in effect, while finding Ms. Zielinski's evidence less convincing. This court does not assess the evidence by counting witnesses for

or against each side and independently assessing credibility. The district court observed Captain Marchetti testify first-hand and its credibility assessment is entitled to deference. "Factual findings are not

clearly erroneous if the record contains sufficient evidence to support

them." Agathos v. Starlite Motel, 977 F.2d 1500, 1504 (3d Cir. 1992).

The base commanders' testimony provided sufficient evidence to support the district court's factual finding that the actual policy in effect

was to check only non-military I.D. cards. Accordingly, we cannot

conclude that the district court's finding was clearly erroneous.

Ms. Zielinski asserts that the court's finding cannot stand because

the court erroneously placed the burden on her of establishing the

actual base policy in effect. This error, she contends, is indicated by

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language in the court's opinion in which it stated that she had not

"satisfied her burden on the issues for trial."

Although this statement as to "burden" is somewhat ambiguous,

nothing in the record indicates that the court placed the evidentiary

burden on Ms. Zielinski. Rather, it appears that the court meant that

Ms. Zielinski had not carried her burden to point out a mandatory

restriction that "cabined" the discretion of security personnel within

their more broad discretion regarding base security. This was necessary to rebut the government's initial showing that it was entitled to

judgment under the discretionary function exception.

We agree with Ms. Zielinski that normally the burden is on the

government to prove that the discretionary function exception applies.

See, e.g., Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995).

But in this case, the district court initially found that the government

had carried its burden by showing that decisions as to necessary

security procedures at the base fell under the exception. The district

court then correctly noted that the only way Ms. Zielinski could succeed in her claim was if the base had enacted mandatory procedures

within that discretion. Because the government denied that a mandatory checking procedure existed, the burden necessarily shifted to Ms.

Zielinski at least to point out the mandatory security procedures that

the government allegedly violated. Cf. Daigle v. Shell Oil Co., 972

F.2d 1527, 1539-40 (10th Cir. 1992) (finding it insufficient for the

plaintiff to merely allege that the government violated a mandatory

regulation, plaintiff must point the court to the allegedly violated

mandatory regulation); Creek Nation Indian Hous. Auth. v. United

States, 905 F.2d 312, 314 (10th Cir. 1990) (same). Cf. also United

States v. Gaubert, 499 U.S. 315, 329 (1991) (noting that neither party

had identified for review any formal regulations). Accordingly, in the

somewhat unusual procedural context of this case, the district court

did not err in concluding that Ms. Zielinski could not carry her burden

to rebut the government's initial showing that its conduct fell within

the discretionary function exception.

III.

Ms. Zielinski's second argument on appeal is that, even if the district court's finding that the policy was to check only non-military

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I.D. cards is accepted, the government was still not entitled to judgment. She asserts that the district court erred in"failing to determine

whether the procedure adopted to implement the official safety policy

involved an element of choice and whether such choice was grounded

in social, economic, or political policy."

The district court's initial conclusion, that the extent and manner

of base security measures in general fell within the discretionary function exception, is well-supported by the case law. See Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 970 (4th Cir.) (discretionary

function exception applies to government's decision regarding security measures necessary to protect Panamanian businesses in wake of

U.S. occupation), cert. denied, 506 U.S. 955 (1992); Attallah v.

United States, 955 F.2d 776, 785-86 (1st Cir. 1992) (exception applies

to Customs Service policy and procedures for providing security to

passengers); Haygan v. United States, 627 F. Supp. 749, 750-51

(D.D.C. 1986) (exception applies to security precautions at a parking

lot); Marbley v. United States, 620 F. Supp. 811, 813 (D.D.C. 1985)

(exception applies to security measures taken at Washington Navy

Yard). Accordingly, the district court did not err in concluding that

Ms. Zielinski could rebut the government's entitlement to judgment

only by showing that within its broad discretion regarding security,

the government had implemented mandatory security procedures.

In attempting to meet this burden at trial, Ms. Zielinski pointed

only to the alleged policy for checking all I.D. cards against the list

as the mandatory policy implemented within the government's

broader security discretion. As indicated within, the district court

found as a fact that this was not the policy in effect and we have concluded that this finding was not clearly erroneous. Perhaps in view of

the small likelihood of reversal of the district court's factual finding

on appeal, Ms. Zielinski makes a second argument. In direct contradiction to the district court's ruling prior to trial that the government

would be entitled to judgment if the court found that no mandatory

policy existed for checking all I.D. cards against the list, she contends

that she can still establish the government's liability in the face of

such a finding. She now maintains that the "debarment list" itself is

the mandatory policy "cabining" security personnel's discretion, and

that the failure to implement properly that mandatory policy did not

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involve a policy choice based on economic, social, or political considerations.

Because it is not clear that she ever raised this specific argument

before the district court, arguably it is not properly before us on

appeal. See e.g., United States v. Banisadr Bldg. Joint Venture, 65

F.3d 374, 379 (4th Cir. 1995); Agra, Gill & Duffus, Inc. v. Benson,

920 F.2d 1173, 1176 (4th Cir. 1990). Regardless, even if the argument

had been preserved for appeal, we would have to reject it as meritless.

The manner in which the government chose to keep debarred persons

from the base involved discretionary decisions based on social, economic and political considerations. In our review, we do not look to

whether the government actually balanced these assorted considerations, but whether the government's decision was of a type that is

typically grounded in such considerations. See Baum v. United States,

986 F.2d 716, 720-21 (4th Cir. 1993). There are numerous ways the

base commander could have effectuated the policy of keeping debarred persons from the base. Security procedures could involve checking all persons at the gate, employing a roving patrol to check I.D.

cards, simply escorting debarred persons from the base whenever they

were found on the base, or checking only non-military I.D. cards at

the gate.

These security decisions are grounded in economic, social and

political considerations. Among the factors military commanders

should consider are the resources and manpower necessary to check

I.D. cards (see Baum, 986 F.2d at 724); the impact of the security

measures on the functioning of the base (for example, in this case

there was testimony that not all I.D. cards were checked at the gate

because this caused extensive back-ups and delays); the impact of

security measures on the general base atmosphere and local sensibilities; and other distinctly military concerns (take, for example, Captain

Marchetti's comment that the military takes care of its own disciplinary problems). Contrast Noel v. United States , 893 F. Supp. 1410,

1420-21 (N.D. Cal. 1995) (discretionary function exception does not

apply where government decision is motivated solely by safety considerations similar to those facing private individuals).

Indeed, due to financial constraints, Captain Marchetti testified that

the Naval Station on Guam at present is an "open base" with free

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access to all persons. If the "debarred list" still exists, security personnel no longer make any effort to stop those persons at the gate or the

Pass and Decal office. Additionally, it should be noted that the letter

informing Rappolla that he was barred from the base did not state that

he would be stopped from entering the base, but that he would be

punished if found on the base. The decision whether to open or close

a base, or to what extent the base should be open or closed, is a decision within the commander's discretion. Moreover, the base commander's decision as to how to keep debarred persons from the base

involves an exercise of discretion grounded in policy concerns.

IV.

No one denigrates the tragedy Ms. Zielinski has suffered. Unfortunately, it is not one for which there is any remedy against the United

States. Accordingly, the district court's decision dismissing this case

for lack of subject matter jurisdiction is

AFFIRMED.

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