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, and

JONES, District Judge. 1

_____________

BOWMAN, Circuit Judge.
The Honorable Charles A. Shaw, United States District Judge for the Eastern 2

District of Missouri.

Appellants are confused about the procedural posture of this case. In the

3

section of their brief headed "Standard of Review," appellants state, "The Court must

treat Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure

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 appellants' complaint in making the decision

to dismiss, but did not treat the government's motion as one for summary judgment, and

properly so. "The district court has the authority to consider matters outside the

pleadings on a motion challenging subject matter jurisdiction under Federal Rule of

Civil Procedure 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, 729 (8th Cir. 1990). In any event, appellants do not claim they suffered any

prejudice as a result of the District Court's procedural treatment of the motion.

-2-

Tina Marie Sellers, by and through her mother Joann Sellers; Albert Deuser; and

Phyllis Menke appeal from the order of the District Court dismissing for lack of

2

subject matter jurisdiction their claims brought under the Federal Tort Claims Act

(FTCA). We affirm.

I.

The District Court dismissed appellants' claims under Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction, holding that the government

was protected from suit by the discretionary function exception of the FTCA. We

review de novo. 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.

United States, 486 U.S. 531, 540 (1988). Because the District Court adduced facts

beyond the skeletal allegations of the complaint, we too will recite the more complete

story. There are some disputed facts, but resolution 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 Deuser and Menke are the parents of,

Larry Deuser, who is deceased. On July 3-6, 1986, the event known as the Veiled

Prophet (or VP) Fair was held on the grounds of the Jefferson National Expansion

Memorial in St. Louis, Missouri (the site of the Gateway Arch). Because the

Expansion 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 for 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 rangers 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.

After conferring 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 to

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 released, and

also some question of the timing of the events that occurred that night. It is sufficient

for our purposes to know the undisputed facts: Deuser was freed in a parking lot

somewhere in St. Louis, alone and with no money and no transportation. At some time
-4-

after that, he 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

municipal and federal actors. When this case was before us previously, we held that

summary judgment for various of the defendants was proper on the claims brought

under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

388 (1971), 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 FTCA claim for Deuser's wrongful death and

a state law claim against police officer King remained. As we noted above, the District

Court now has dismissed the FTCA claim for lack of subject matter jurisdiction. In

addition, the court declined to exercise supplemental jurisdiction over the state law

claim against King (a decision that has not been appealed).

II.

By enacting the FTCA, Congress opted to waive the sovereign immunity to civil

suit enjoyed by the United States, and to give consent to be sued "for money

damages . . . for injury or loss of property, or personal injury or death caused by the

negligent or wrongful act or omission of any employee" of the United States acting

within the scope of his employment. 28 U.S.C.A. § 1346(b)(1) (Supp. 1997). The

federal courts have subject matter jurisdiction over such claims "under circumstances

where the United States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or omission occurred." Id. But, as

is true in other cases where Congress on behalf of the United States has waived

sovereign immunity, amenability to suit is not without exception.

The exception relevant here is commonly known as the discretionary function

exception. It is statutory and shields the government from civil liability for claims
Although Deuser's arrest occurred in July 1986, it is the December 1987 version 4

of the SOP that is reproduced in the Addendum to the Brief for Appellants and in the

Joint Appendix. Appellants make their arguments based on this version, and the

appellees state in their brief, "We have no reason to believe that the 1986 SOP was

substantially different than the 1987 SOP." Brief of Appellees at 5 n.5. Accordingly,

-5-

"based upon 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 the

discretion involved be abused." 28 U.S.C. § 2680(a) (1994). The 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).

To determine whether the discretionary function exception applies here to protect

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 regards

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 or

choice." Id. It is axiomatic that a government employee has no such discretion "when

a federal statute, regulation, or policy specifically prescribes a course of action for an

employee 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 the

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 4
we accept the 1987 SOP as stating policies in effect in July 1986.

-6-

suggests there is little room for discretionary decisionmaking on the part of the rangers

in an arrest situation: "When an arrest is made by National Park Rangers within the

jurisdiction of Jefferson National Expansion Memorial, the following procedures will

always be followed: . . . " Standard Operating Procedure--Arrests at 1 (emphasis

added). The arrestee is to be searched, and if possible fingerprinted 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

parties, infer from the SOP, although it is not clearly stated), "[t]he arresting Ranger

plus a Shift Supervisor will transport the prisoner to the Fourth District Holdover

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 the

alternative locations noted in the SOP. There are very detailed instructions for gaining

access to the Fourth District facility. Once inside, the rangers are to proceed to the

booking area with the prisoner, complete the necessary paperwork, and remove all

personal property from the prisoner. "The prisoner will then be turned over to the

Holdover personnel and taken up to the cell block." Id. at 2. Except for some

additional paperwork and later transport of the suspect for court appearances, the

rangers' job is done once the prisoner is taken to the proper holding facility. This,

appellants contend, is the procedure the rangers were compelled to follow with Deuser

after they arrested him.

The rangers argue (and the District Court concluded) that the SOP arrest policy

was abrogated temporarily by the VP Fair 1986 Operations Handbook. The Handbook

emphasizes the "primary role" of the rangers during the Fair: "resource protection

followed by the things we do best, visitor services and visitor care." VP Fair 1986
The Handbook pages reproduced in the record are unnumbered. It is unclear 5

to us whether the copy we have been provided is complete or whether the two sections

reproduced, "Overview and Hindsight" and "General Enforcement Guidelines," have

been excerpted. In this opinion, we refer to the reproduction we have as if it is an

inclusive copy of the Handbook.

-7-

Operations Handbook--Overview and Hindsight para. 6. The opening paragraph of

5

the Handbook's General Enforcement 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 and

discretionary action on the part of the Ranger." The guidelines then cover the areas of

concern for enforcement by rangers during the Fair: traffic control; liquor law

violations; city ordinances in effect for the duration of the Fair concerning alcoholic

beverages, glass containers, and pets; access to the Arch; and a variety of crimes

against persons from simple assault to murder. The Enforcement section of the

Handbook then wraps up with a paragraph that makes it clear the rangers have wide

latitude in making enforcement decisions:

This will be a busy weekend and our holdover facilities at the 4th District

may or may not be available per our existing agreement. Transport of

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 after the Fair] when we

can least afford it. That does not mean we will not take appropriate

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

grounds of the Expansion Memorial during the Fair--misapprehends the Handbook

guidelines. The Handbook was intended to provide guidance to the rangers on the

extent to which certain laws should be enforced during the Fair. Read as a whole, the

Handbook suggests that enforcement in many circumstances might be relaxed during
For one of their arguments, appellants claim that a provision in the Handbook, 6

under the heading "Liquor Law Violations," specifically says that the SOP should

prevail when dealing with liquor law violations during the Fair. Appellants are

mistaken. The sentence at issue concerns the policies and penalty guides set by Fair

organizers for underage drinking and for the hours of operation for vendors selling

alcoholic beverages (neither of which, incidentally, have anything to do with the

conduct that led to Deuser's arrest). The Handbook states that federal park rangers are

not permitted to enforce the organizers' policies, but continues, "We will enforce ours

in accordance with the SO's." Appellants evidently believe "SO's" equates with SOP.

But in the "Traffic Control" subdivision, just above the liquor law paragraph, the

Handbook defines the SO acronym: "Restrictions as to weight limitations, size

limitations, etc. will be found in the Superintendent's Orders (SO)." It is clear from

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.

Appellants also claim that the paragraph from the Handbook we have quoted

above gave rangers discretion to act only on July 7, not July 4. That argument is

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 the Handbook refer to enforcement decisions to be made during the Fair, and

then make the guidelines applicable only after the Fair was over? It is clear that the

reference to July 7 concerned matters that would be pending because of the Fair but

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 discretionary action" was to be exercised in the context of making decisions on

whether to make an arrest at all; the Handbook never touches on the procedure to be

followed in the event an arrest is made (except to note that holding facilities and

rangers will be busy during the Fair). The Handbook did not override the standard

operating procedures. Based on the record before us, it appears the SOP for

6

processing arrestees remained unchanged during the Fair. Still, that conclusion does

not mean that the rangers were required to complete an arrest, that is, to charge and

incarcerate a suspect, once he was in custody.
-9-

We know that Deuser was arrested by the rangers. The SOP to be followed

when a person is arrested by a ranger at the Expansion Memorial is precise and, as to

the salient points, mandatory. Appellants are correct that there was very little

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

handcuffed him before transporting him. After that, it is true that the SOP was not

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 reason to follow

the procedures for incarceration.

The question remains whether a ranger's decision to terminate an arrest made at

the park during the Fair 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 in

either the SOP or the Handbook that sets forth a policy--whether discretionary or

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 make the arrest in the first place.

Law enforcement decisions of the kind involved in making or terminating an arrest must

be within the discretion and judgment of enforcing officers. See, e.g., Redmond v.

United States, 518 F.2d 811, 816-17 (7th Cir. 1975) ("It cannot be denied that the

Government has a duty to maintain law and order, but how best to fulfill this duty is

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 decide in advance

for the ranger whether an arrest should be made and, once made, under what

circumstances an arrest could be terminated. Just as the rangers had discretion to

decide (within constitutional limits, of course) when and whether to make an arrest, so

they had--and here exercised--discretion to terminate an arrest without charging the

suspect. Under the terms of the Handbook, that discretion became even broader during

the Fair.
-10-

We hold 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.

We move 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 the

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 published guidelines

are clear and give officers wide discretion in making enforcement decisions during the

Fair, the rangers at the outset enjoy the presumption that their conduct in releasing

Deuser meets the second part of the test: that their actions were "grounded in policy."

Id. at 324. That is, if a provision of the Handbook "allows the employee discretion, the

very existence of the [provision] creates a strong presumption that a discretionary act

authorized by the [provision] involves consideration of the same policies which led to

the promulgation of the" Handbook. Id. Appellants have alleged no facts to rebut that

presumption, no facts that "would support a finding that the challenged actions are not

the kind of conduct that can be said to be grounded in the policy" of the Handbook. Id.

at 324-25. In fact, they do not even address this step of the discretionary function

analysis in their brief.

We think the conduct of the rangers here is the classic example of a "permissible

exercise of policy judgment." Berkovitz, 486 U.S. at 539. Social, economic, and

political goals--all three--were the basis for the actions taken by the rangers. 

An important function of the rangers during the Fair, according to the Handbook,

was to serve and protect visitors to the park. Clearly, the decision to remove Deuser

from the park served the social goals of protecting innumerable other fairgoers and
-11-

ensuring that their enjoyment of the festivities was not diminished by the obnoxious and

offensive behavior of a fellow attendee. Further, the decision to release Deuser, rather

than to charge him for the offenses he committed, may have prevented a night of revelry

that obviously was out of control from becoming a criminal conviction. And the rangers

who otherwise would have spent considerable time booking Deuser were free to return

to the Fair, possibly to prevent more serious or more dangerous crimes from being

committed, or to apprehend the perpetrators of graver offenses, thereby continuing to

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

during the Fair and on the first business day following the Fair, when arrestees would

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 Fair. The rangers' colleagues, St. Louis police department officers,

were expected to be equally taxed with their own enforcement duties. Moreover, it was

anticipated that the nearest holdover facility would be overcrowded with arrestees,

meaning more miles and more manpower to transport suspects to alternative holdover

facilities and to see to their arraignments. Releasing Deuser without charging him

preserved already scarce law enforcement resources.

The political goals to be served by the guidelines concern law enforcement

"territories." The Fair was not a National Park Service event. The Handbook

acknowledges that "[t]he St. Louis Police Department is the lead agency for law

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 is

defined as resource protection followed by the things we do best, visitor services and

visitor care." Id. When the police opted not to process Deuser's arrest, the rangers

appropriately decided not to override the decision of "the lead agency for law
-12-

enforcement." The Fair's success depended in part on all enforcement agencies involved

working together toward a common goal, and the rangers acted properly to preserve that

cooperation 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 language of the Handbook itself summarizes the social, economic, and

political policies at work here: "This level of enforcement [necessary to achieve the

rangers' primary responsibilities] is determined by Park Management and is deliberately

kept flexible enough to maximize utilization of our available resources and minimize

resource damage without becoming a 'roadblock' 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 the

Handbook and (2) implicated consideration of the social, economic, and political policies

behind the Handbook's enforcement guidelines. Thus the rangers' conduct falls within

the discretionary function exception 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.