The Honorable John B. Jones, United States District Judge for the District of 1 South Dakota, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-1453

_____________ Albert F. Deuser; Tina Marie Sellers, * by and through her guardian, natural * mother and next friend Joann Sellers; * Phyllis Menke, *
* Appellants, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri. David Vecera, National Park Ranger; * Edward Bridges, National Park * Ranger; Dennis Burnett, Chief * Ranger; United States of America, *
* Appellees. *

_____________ Submitted: January 14, 1998 Filed: March 26, 1998

_____________ Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, an d JONES, District Judge.

1

_____________ BOWMAN, Circuit Judge.The Honorable Charles A. Shaw, United States District Judge for the Eastern 2 District of Missouri. App ellants are confused about the procedural posture of this case. In th e 3 section of t

heir brief headed "Standard of Review," appellants state, "The Court must treat Defe ndant's Motion to Dismiss pursuant to Federal Rule of Civil Procedur e 12(b)(6) as a Motion for Summary Judgment when matters outside the pleadings are presented and not excluded by the Trial Court." Brief of Appellants at 6. The District Court did go beyond the allegations in the appe llants' complaint in making the decision to dismiss, but did not treat the government's motion as one for s ummary judgment, and prop erly so. "The district court has the authority to consider matters outside th e pleadings on a motion challenging subject matter jurisdiction under Federal Rule o f CivilProcedure 12(b)(1)." Drevlow v. Lutheran Church, Mo. Synod , 991 F.2d 468 , 470 (8th Cir. 1993). The court's election to do so does not convert the 12(b)(1) motion to dismiss into a motion for summary judgment. See Osborn v. United States , 918 F.2d 724, 72 9 (8th Cir. 1990). In any event, appellants do not claim they suffered an y prejudice as a result of the District Court's procedural treatment of the motion.
-2- Tina Marie Sellers, by and through her mother Joann Seller s; Albert Deuser; and Phyllis Menke appeal from the order of the District Court dismissing for lack o f 2 subjec t matter jurisdiction their claims brought under the Federal Tort Claims Ac t (FTCA). We affirm.

I.

The District Court dismissed appellants' claims under Federal Rule of Civi l Procedure 12(b)(1) for lack of subject matter jurisdiction, holding that the government

was prote cted from suit by the discretionary function exception of the FTCA. W e review de n ovo. See Appley Bros. v. United States , 7 F.3d 720, 722 (8th Cir. 1993). "[W ]e accept all of the factual allegations in [the] complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate." Berkovitz v

. Un itedStates , 486 U.S. 531, 540 (1988). Because the District Court adduced fact s beyond the skeletal allegations of the complaint, we too will recite the more complete story. There are some disputed facts, but re solution of those disputes is not necessary 3-3-

for us to decide whether there is subject matter jurisdiction under the FTCA.
Tina Sellers is the daughter of, and Albert Deu ser and Menke are the parents of, Lar ry Deuser, who is deceased. On July 3-6, 1986, the event known as the Veile d Prophet (or VP) Fair was held on the grounds of the Jefferson National Expansio n Memo rial in St. Louis, Missouri (the site of the Gateway Arch). Because th e Exp ansion Memorial is a national park (a special use permit was issued to the city of St. Louis for the Fair), the Secretary of the Interior is responsible for maintaining the park and its facilities and fo r providing services to visitors, functions generally carried out by the National Park Service. See Universal Interpretive Shuttle Corp. v

. Washington Metro. Area Transit Comm'n , 393 U.S. 186, 187 & n.1 (1968). The park is within the jurisdiction of the National Park Rangers. On the evening of July 4, 1986, many thousands of people were in attendance at the Fair, including Larry Deuser

. Rangers David Vecera

and Edward Bridges observed Deuser grabbing women on the buttocks, to the obvious outrage of the victims and others. The ran gers warned Deuser, and continued to keep an eye on him. When he urinated in public, the rangers arrested him. As the rangers made their way to their tent with Deuser, he was argumentative with them and continued making rude comments to female visitors.

Afterconf

erring with chief ranger Dennis Burnett, the rangers elected to turn Deuser over to St. Louis police. But the police department was overwhelmed with the additional workload created by the Fair, and officers were unable or unwilling t o process Deuser's arrest. At this point, the rangers, together with St. Louis police officer Lawrence King, decided to release Deuser, but away from the park so that he would not return to the Fair that evening.
There is some dispute between the parties about where Deuser was rel eased, and also some ques tion of the timing of the events that occurred that night. It is sufficient forour purposes to know the undisputed facts: Deuser was freed in a parking lo t somewhere in St. Louis, alone and with no money and no tra nsportation. At some time-4-

after that, h e wandered onto an interstate highway and was struck and killed by a motorist . Deuser's blood alcohol level was 0.214 at the time of his death, well above the legal limit for intoxication.
The appellants brought a variety of state and federal claims against a number of municipaland federal actors. When this case was before us previously, we held that

summ ary judgment for various of the defendants was proper on the claims brough t under Bivens v. Six Unknown Named Agents of Federal Bureau of Na rcotics , 403 U.S. 388 (1 971), and 42 U.S.C. § 1983. See Sellers v. Baer , 28 F.3d 895 (8th Cir. 1994), cert. denied , 513 U.S. 1084 (1995). The FT CA claim for Deuser's wrongful death and a state law claim against police officer King remained. As we noted above, the District Court now ha s dismissed the FTCA claim for lack of subject matter jurisdiction. I n addition, the court declined to exercise supplemental jurisdiction over the state la w claim against King (a decision that has not been appealed).

II.
By enacting the FTCA, Congress opted to waive th e sovereign immunity to civil suiten joyed by the United States, and to give consent to be sued "for mone y da mages . . . for injury or loss of property, or personal injury or death caused by th e negli gent or wrongful act or omission of any employee" of the United States actin g within the s cope of his employment. 28 U.S.C.A. § 1346(b)(1) (Supp. 1997). Th e federal co urts have subject matter jurisdiction over such claims "under circumstances where the United States, if a private person, would be liable to the claimant i n accordance with the law of the place where the act or omission occurred." Id. But, as is tru e in other cases where Congress on behalf of the United States has waive d sovereign immunity, amenability to suit is not without exception.

The exception relevant here is commonly known as the discretionary functio n exception. It is statutory and shields the government from civil liability for claimsAlthough Deuser's arrest occurred in July 1986, it is the Decem ber 1987 version 4 of t he SOP that is reproduced in the Addendum to the Brief for Appellants and in the Jo int Appendix. Appellants make their arguments based on this version, and th e appel lees state in their brief, "We have no reason to believe that the 1986 SOP wa s substantially differe nt than the 1987 SOP." Brief of Appellees at 5 n.5. Accordingly,
-5- "basedupon the exercise or performance . . . [of] a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not th e discret ion involved be abused." 28 U.S.C. § 2680(a) (1994). The exception "marks the bound ary between Congress' willingness to impose tort liability upon the Unite d 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).
To determine whether the discretionary function exception applies here to p rotect the rangers and the United States from suit, we engage in a two-step inquiry.

A.

First, we must consider whether the actions taken by the rangers as regard s Deuser were discretionary, that is, "a matter of choice." Berkovitz , 486 U.S. at 536. "[C ]onduct

cannot be discretionary unless it involves an element of judgment o r choice." Id. It is axiomatic that a go vernment employee has no such discretion "when a federal st atute, regulation, or policy specifically prescribes a course of action for an

e m ployee to follow." Id. If the rangers had a policy they were to follow in releasing Deuser, as the appellants contend, "then there is no discretion in the conduct for th e discretionary function exception to protect." Id.
There are two written policies that the parties contend are of relevance here. The first is the Jefferson National Expansion Memorial Standard Operating Procedure for arrests (SOP), dated December 22, 1987. The opening declaration of the SOP 4we accept the 1987 SOP as stating policies in effect in July 1986.
-6- suggests there is little room for discretion ary decisionmaking on the part of the rangers in an arrest situation: "When an arrest is made by National Park Rangers within th e jurisdi ction of Jefferson National Expansion Memorial, the following procedures will alway s be followed : . . . " Standard Operating Procedure--Arrests at 1 (emphasi s added). The arrestee is to be searched, and if possible fi ngerprinted and photographed, before transport. The prisoner, handcuffed behind his back, is to be transported by two rangers. During business hours, the arrestee "will continue to be taken directly to the U.S. Marshall's [sic] Office." Id. at 2. At others times (or so we, and apparently the parti es, infer from the SOP, although it is not clearly stated), "[t]he arresting Range r plus a Shift Supervisor will transport the prisoner to the Fourth District Holdove r Facility at 1200 Clark Avenue (Clark and Tucker) using the division vehilce [sic]," id. at 1 , unless the facility is full, in which case prisoners are to be taken to one of th e alternative locations noted in the SOP. Th ere are very detailed instructions for gaining

access to the Fourth District facility. Once inside, the rangers are to proceed to th e booki ng area with the prisoner, complete the necessary paperwork, and remove al l personal property from the prisoner. "The prisoner will then be turned over to th e Holdoverpers onnel and taken up to the cell block." Id. at 2. Except for som e additional paperwork and later transport of the suspect for court appearances, th e range rs' job is done once the prisoner is taken to the proper holding facility. This , appellants contend, is the procedure the ranger s were compelled to follow with Deuser after they arrested him.
The rangers argue (and the D istrict Court concluded) that the SOP arrest policy was abrogated temporarily by the VP Fair 1986 Operations Ha ndbook. The Handbook emphasizes the "primary role" of the rangers during the Fair: "resource protectio n followed by the things we do best, visitor services and visitor care." VP Fair 1986The Handbook pages reproduced in the record are unnumbered. It is unclear 5 to us whether the copy we have been provided is com plete or whether the two sections reproduced, "Overview and Hindsight" and "General Enforcement Guidelines," have been excerpte d. In this opinion, we refer to the reproduction we have as if it is a n inclusive copy of the Handbook.
-7- Op erations Handbook--Overview and Hindsight para. 6. The opening paragraph o f 5 the Handbook's General Enforce ment Guidelines makes it clear that the guidelines are in fact quite general and are for use by the rangers "in enforcement contacts[,] but in

no way should [they] be construed as a substitute for sound judgement an d discretionary action on the part of t he Ranger." The guidelines then cover the areas of

concern fo r enforcement by rangers during the Fair: traffic control; liquor la w vio lations; city ordinances in effect for the duration of the Fair concerning alcoholi c beverages, glass containers, and pets; access to the Arch; and a variety of crime s againstpersons from simple assault to murder. The Enforcement section of th e Handbook

then wraps up with a paragraph that makes it clear the rangers have wid e latitude in making enforcement decisions:
This will be a busy weekend and our holdov er facilities at the 4th District may o r may not be available per our existing agreement. Transport o f federal prisoners to either St. Clair in Illinois or Cape Giraudeau [sic] in Missouri will tie up rangers that we can ill afford and create an extreme workload on the 7th of July [the first business day af ter the Fair] when we
can least afford it. That does not mean we will not take appropriat e action, only that our actions will be tempered with reality and arrests will only be on a "last resort" basis.
The rangers' argument--that the Handbook superseded the SOP for arrests on the gro unds of the Expansion Memorial during the Fair--misapprehends the Handboo k guidelines. The Handbook was intended to provide guidance to the rangers on th e extent to which certain law s should be enforced during the Fair. Read as a whole, the Handbook suggests that enforcement in many circumstances might be relaxed duringFor one of th eir arguments, appellants claim that a provision in the Handbook, 6 underth e heading "Liquor Law Violations," specifically says that the SOP shoul d prev ailwhen dealing with liquor law violations during the Fair. Appellants ar e mistaken. The sentence at issue concerns the policies and penalty guides set by Fair organize rs for underage drinking and for the hours of operation for vendors sellin g alcohol ic beverages (neither of which, incidentally, have anything to do with th e conduct that led to Deuser's arrest). The Handbo ok states that federal park rangers are not permitted to en force the organizers' policies, but continues, "We will enforce ours in accordance with th e SO's." Appellants evidently believe "SO's" equates with SOP. But in the "Traffic Control" subdivision, just above the liquor law paragraph, th e Handbookdefines the SO acronym: "Restrictions as to weight limitations, siz e limita tions, etc. will be found in the Superintendent's Orders (SO)." It is clear fro m simply reading the entire Handbook that references to"SO's" therein are references not to the Standard Operating Procedures for the park but to Superintendent's Orders. Appellant s also claim that the paragraph from the Handbook we have quote d above gave ra ngers discretion to act only on July 7, not July 4. That argument i s absurd. The Fair ran from Thursday, July 3 to Sunday, July 6 and the paragraph opens by referring to the "busy weekend." July 7 was a Monday and the Fair was over. Why would t he Handbook refer to enforcement decisions to be made during the Fair, an d then mak e the guidelines applicable only after the Fair was over? It is clear that th e refere nce to July 7 concerned matters that would be pending because of the Fair bu t that could not be handled until the first business day after the Fair.
-8- the event, so that arrests would be kept to a minimum. The rangers' "sound judgement and di scretionary action" was to be exercised in the context of making decisions o n whether to make an a rrest at all ; the Handbook never touches on the procedure to be followe din the event an arrest is made (except to note that holding facilities an d range rs will be busy during the Fair). The Handbook did not override the standar d ope rating procedures. Based on the record before us, it appears the SOP fo r 6 processing arrestees remained unchanged during the Fair. Still, that conclusion does notmean tha t the rangers were required to complete an arrest, that is, to charge an d incarcerate a suspect, once he was in custody.-9-

We kn ow that Deuser was arrested by the rangers. The SOP to be followe d when a person is arrested by a ranger at the Expansion Memorial is precise and, as to the s alient points, mandatory. Appellants are correct that there was very littl e discretion to be exercised, at least for as long as Deuser was under arrest . And it seems that the rangers initially followed the prescribed procedure: they searched Deuser and handcuffe dhim before transporting him. After that, it is true that the SOP was no t followed--but when Deuser was released in the parking lot, the arrest was terminated. He was free to go, and further arrest procedures--booking the prisoner and so forth-- were irrelevant. Deuser was not charged with a crime, so there was no reaso n to follow the procedures for incarceration.
The question remains whether a ranger's decision to terminate an arrest made at the park during the Fa

ir would require the same sort of judgment and choice as would the initial decision to make the arrest. We think that it would. There is nothing i n either the SOP or the Handbook that sets forth a policy--whether discretionary o r otherwise--for terminating an arrest. But we conclude that this is because the decision to terminate an arrest is closely akin to the decision to mak e the arrest in the first place. Law enforcement decisions of the kind involved in making or terminating an arrest must be with in the discretion and judgment of enforcing officers. See, e.g., Redmond v

. United S tates , 518 F.2d 811, 816-17 (7th Cir. 1975) ("It cannot be denied that th e Gove rnment

has a duty to maintain law and order, but how best to fulfill this duty i s wholly within the discretion of its officers . . ."). It would be impossible to put into a manual every possible scenario a ranger might encounter, and then to de cide in advance for the ranger whether an arrest should be made and, once made, under wha t circumsta nces an arrest could be terminated. Just as the rangers had discretion t o decide (within constitutional limits, o f course) when and whether to make an arrest, so th ey had--and here exercised--discretion to terminate an arrest without charging th e suspect. Under the terms of the Handbook, that discretion became even broader during the Fair.-10-

We hol d that terminating Deuser's arrest, that is, releasing him without charging him with a crime, was a discretionary function reserved to the judgment of the rangers.

B.

Wemove now to the second part of our inquiry. Notwithstanding the judgment involved in terminating Deuser's arrest, we must ask "whether that judgment is of th e kind that the discretionary function exception was designed to shield." Berkovitz , 486 U.S. at 536. To be protected, the rangers' conduct must be "grounded in the social , economic, or political goals" of the Handbook's discretionary enforcement guidelines

. United States v. Gaubert , 499 U.S. 315, 323 (1991). Because those publis hed guidelines

areclear and give officers wide discretion in making enforcement decisions during the Fair, the rangers at the outset enjoy the presumption that their conduct in releasin g Deuser meets the second part of the test: that their actions were "grounded in policy." Id. at 324. That is, if a provi sion of the Handbook "allows the employee discretion, the very exi stence of the [provision] creates a strong presumption that a discretionary ac t authorizedby the [provision] involves consideration of the same policies which led to the promulgation of the" Hand book. Id. Appellants have alleged no facts to rebut that pre sumption, no facts that "would support a finding that the challenged actions are not the kind of conduct that can be s aid to be grounded in the policy" of the Handbook. Id. at 3 24-25. In fact, they do not even address this step of the discretionary functio n analysis in their brief.

We think the conduct of the rangers here is the classic example of a "permissible exercise o f policy judgment." Berkovitz , 486 U.S. at 539. Social, economic, an d political goals--all three--were the basis for the actions taken by the rangers.
An important function of the rang ers during the Fair, according to the Handbook,

was to serve and protect visitors to the park. Clearly, the decision to remove Deuse r from the park served the social goals of protecting innumerable other fairgoers and-11-

ensuring that their enjoyment of the fest ivities was not diminished by the obnoxious and offensive beha

vior of a fellow attendee. Further, the decision to release Deuser, rather than to charge him for the offenses he committe d, may have prevented a night of revelry that obviously was out of control from becoming a c riminal conviction. And the rangers who otherwise would h ave spent considerable time booking Deuser were free to return to the Fai r, possibly to prevent more serious or more dangerous crimes from bein g committed , or to apprehend the perpetrators of graver offenses, thereby continuing t o further the goal of visitor protection.
The economic goals of the guidelines are clear, and are spelled out in some detail in the Handbook. Law enforcement manpower was expected to be stretched thin, both dur ing the Fair and on the first business day following the Fair, when arrestees woul d have to be transported for court appearances. (In fact, the SOP tells rangers to expect the process to take all day, even under ordinary circumstances.) There were simply not enough officers to arrest and to charge all persons who might commit a crime at the park during the four-day Fa

ir. The rangers' colleagues, St. Louis police department officers, were expected to be equally taxed with their ow n enforcement duties. Moreover, it was antici patedthat the nearest holdover facility would be overcrowded with arrestees , meaning more miles and more manpower to transport suspects to alternative holdover facilitie s and to see to their arraignments. Releasing Deuser without charging hi m preserved already scarce law enforcement resources.

The polit ical goals to be served by the guidelines concern law enforcemen t "terri tories." The Fair was not a National Park Service event. The Handboo k ack nowledges that "[t]he St. Louis Police Department is the lead agency for la w enforcement." VP Fair 1986 Operations Handbook--Overview and Hindsight para. 6. As the chief ranger stated in the Handbook, the federal park rangers' "primary role i s define das resource protection followed by the things we do best, visitor services an d visitor care." Id. When the police opted not to process Deuser's arrest, the ranger s appropriately decided not to override the decision of "the lead agency for law-12-

enforcement." The Fair's success depended in part on all e nforcement agencies involved working together toward a common goal, and the rangers ac ted properly to preserve that

coo peration by releasing Deuser in this situation. Further, the Fair was designed to be an enjoyable event for the city, and it would have been unfortunate if overzealous federal law enforcement had dampened the festivities.

The l anguage of the Handbook itself summarizes the social, economic, an d politic al policies at work here: "This level of enforcement [necessary to achieve th e rangers' primary responsibilities] is determined by Park Management and is deliberately kept flexible enough to maximize utilization of our available resources and minimiz e resource damage without becoming a 'ro adblock' to the fair and the fair-goer." Id. para. 7. We hold that the

conduct of the officers here was grounded in the social, economic, and political policies of the Handbook.

III.

To sum up, the rangers' decision to release Deuser away from the park, without charging him with a crime (1) required the exercise of judgment as noted in th e Handbook and (2) implicated consideration of the social, economic, and pol itical policies behind the Handbook's enforcement guidelines. Thus the rangers' conduct falls within the discretionary function exceptio n of the FTCA, and there is no federal subject matter jurisdiction for appellants' FTCA wrongful death claims.
The judgment of the District Court is affirmed.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.