RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0133p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

ERIC SHARP, Representative of the Estate of Earle

Chadwick Sharp, deceased,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

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No. 03-2516

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-73731—George C. Steeh, District Judge.

Argued: March 10, 2005

Decided and Filed: March 16, 2005 

Before: KENNEDY, MOORE, and SUTTON, Circuit Judges.

_________________

COUNSEL

ARGUED: Dondi R. Vesprini, LAWRENCE S. KATKOWSKY ASSOC., Bingham Farms,

Michigan, for Appellant. Geneva S. Halliday, ASSISTANT UNITED STATES ATTORNEY,

Detroit, Michigan, for Appellee. ON BRIEF: Lawrence S. Katkowsky, LAWRENCE S.

KATKOWSKY ASSOC., Bingham Farms, Michigan, for Appellant. Geneva S. Halliday,

ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. 

_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. Eric Sharp appeals from an order of the district

court dismissing his Federal Tort Claims Act (“FTCA”) suit arising out of the death of his brother,

Earle Chadwick Sharp (“Chad Sharp”), in an off-road-vehicle (“ORV”) accident at the Huron

National Forest. For the reasons set forth below, we AFFIRM the district court’s dismissal of this

action for lack of subject matter jurisdiction.

1
No. 03-2516 Sharp v. United States Page 2

I. FACTUAL AND PROCEDURAL HISTORY

The Huron National Forest covers over 400,000 acres of northeast Michigan. Included in

the Huron National Forest is a forty-acre parcel known as the Bull Gap Hill Climb Area (“Bull

Gap”), which has a large sand dune and over one hundred miles of trails. In the late 1990s, the Bull

Gap area became quite popular with ORV enthusiasts, and on holidays such as Memorial Day and

the Fourth of July, over one thousand ORV riders and spectators would visit Bull Gap.

In 1999, only two National Forest Service law-enforcement officers were assigned to patrol

the entire Huron National Forest. In anticipation of a large Memorial-Day-weekend crowd at Bull

Gap, a Law Enforcement Operating Plan for Bull Gap (“Bull Gap Operating Plan”) was developed

by one of Huron National Forest’s law-enforcement officers, Officer Dallas Marroquin (“Officer

Marroquin”). The Bull Gap Operating Plan, which was approved by Officer Marroquin’s

supervisor, Thomas Barton, provided for other local law-enforcement units, such as the Michigan

State Police, the Michigan Department of Natural Resources, and the Oscoda County Sheriff’s

Department, to assist in patrolling Bull Gap during the Memorial Day weekend.

Among the Memorial-Day-weekend visitors to Bull Gap were Chad Sharp and his brother,

Eric Sharp. At approximately 9:50 p.m. on Sunday evening, the ORV Chap Sharp was riding up the

Bull Gap sand dune stalled. Chad jumped off the ORV, but for reasons unknown, returned to the

vehicle just as a pickup truck began racing up the dune. Chad was struck by the pickup truck and

later died of his injuries.

Eric Sharp, as representative of Chad Sharp’s estate, filed the instant suit against the United

States (the “Government”) under the FTCA, alleging gross negligence and/or willful and wanton

misconduct by the National Forest Service. More specifically, Sharp’s suit contends that the

National Forest Service is liable for: (1) allowing ORVs to operate in the Bull Gap area twenty-four

hours a day without furnishing adequate lighting, and (2) failing to maintain an adequate lawenforcement presence in Bull Gap. A bench trial was held, and after hearing the testimony of

several witnesses, the district court granted the Government’s Rule 52(c) motion for judgment on

partial findings. In its oral ruling, the district court explained that Sharp had not shown the

inapplicability of the discretionary-function exception to the FTCA and thus had failed to establish

federal subject matter jurisdiction over the suit. Sharp now appeals to this court.

II. ANALYSIS

A. Standard of Review

The district court below dismissed the instant suit pursuant to Federal Rule of Civil

Procedure 52(c), which provides in part that:

[i]f during a trial without a jury a party has been fully heard on an issue and the court

finds against the party on that issue, the court may enter judgment as a matter of law

against that party with respect to a claim or defense that cannot under the controlling

law be maintained or defeated without a favorable finding on that issue. . . .

When entering judgment pursuant to Rule 52(c), the district court must set forth particular findings

of fact, which we then review for clear error. See FED. R. CIV. P. 52(c) 1991 advisory committee

note. We review de novo, however, the district court’s legal determination that it lacked subject

matter jurisdiction over this action. See Rich v. United States, 119 F.3d 447, 449 (6th Cir. 1997),

cert. denied, 523 U.S. 1047 (1998).
No. 03-2516 Sharp v. United States Page 3

1

We note that there appears to be some debate as to the impact of this so-called Gaubert presumption on the

question of which party bears the burden of proving the applicability (or inapplicability) of the discretionary-function

exception. In Carlyle v. United States, Department of the Army, a case decided before the Supreme Court issued its

ruling in Gaubert, we explained:

Because § 2680 clearly limits the jurisdiction of the federal courts, a plaintiff can invoke jurisdiction

only if the complaint is facially outside the exceptions of § 2680. . . . Only after a plaintiff has

B. Discretionary-Function Exception to the FTCA

Before a suit may be maintained against the United States, the United States must consent

to being sued. Montez v. United States, 359 F.3d 392, 395 (6th Cir. 2004) (citing United States v.

Orleans, 425 U.S. 807, 814 (1976)). Through its enactment of the FTCA, Congress has waived the

United States’s immunity from suits:

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 Government while acting within the

scope of his office or employment, 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.

28 U.S.C. § 1346(b)(1). This waiver of sovereign immunity is subject to a number of limitations,

including the discretionary-function exception codified in 28 U.S.C. § 2680(a). See 28 U.S.C.

§ 2680(a) (stating that 28 U.S.C. § 1346(b)’s waiver of sovereign immunity does 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”). If the discretionary-function exception applies

and Congress has not otherwise waived the United States’s immunity, then we lack subject matter

jurisdiction over the action. See Rich, 119 F.3d at 450.

When determining whether the United States is immune from suit based on the discretionaryfunction exception, we engage in a two-step analysis. We first consider “whether the challenged

act or omission violated a mandatory regulation or policy that allowed no judgment or choice. If

so, the discretionary function exception does not apply” because “the employee had no rightful

option but to adhere to the directive” and thus “there was no element of judgment or choice in the

complained of conduct.” Rosebush v. United States, 119 F.3d 438, 441 (6th Cir. 1997) (internal

quotation marks and citations omitted).

If the challenged action is deemed discretionary, we proceed to step two of the analysis, in

which we determine “whether the conduct is ‘of the kind that the discretionary function exception

was designed to shield.’” Id. (quoting United States v. Gaubert, 499 U.S. 315, 322-23 (1991)). In

undertaking such an evaluation, we keep in mind that “the discretionary function exception was

designed to prevent” courts from being required “to ‘second guess’ the political, social, and

economic judgments of an agency exercising its regulatory function.” United States v. S.A. Empresa

de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 820 (1984). Such judgments are

not restricted to those made by an agency’s policymakers, for “it is the nature of the conduct, rather

than the status of the actor, that governs whether the discretionary function exception applies in a

given case.” Id. at 813; see Gaubert, 499 U.S. at 325 (concluding that day-to-day management of

savings and loan by federal regulators fell within scope of discretionary-function exception,

explaining that, “A discretionary act is one that involves choice or judgment; there is nothing in that

description that refers exclusively to policymaking or planning functions.”). We also consider the

fact 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.” Gaubert, 499 U.S. at 324.1
No. 03-2516 Sharp v. United States Page 4

successfully invoked jurisdiction by a pleading that facially alleges matters not excepted by § 2680

does the burden fall on the government to prove the applicability of a specific provision of § 2680.

Any other reading of 28 U.S.C. § 1346(b) and § 2680 would conflict with the general rule that a party

invoking federal jurisdiction must allege facts necessary to establish subject matter jurisdiction.

674 F.2d 554, 556 (6th Cir. 1982) (citations omitted). The Ninth Circuit, in a post-Gaubert decision, expressly adopted

our method of resolving burden-of-proof issues, finding it consistent with the Gaubert presumption. See Prescott v.

United States, 973 F.2d 696, 702 & n.4 (9th Cir. 1992) (“The framework that the Seventh [sic] Circuit articulated in

Carlyle and that we adopt here is consistent with the [Gaubert] Court’s analysis. Gaubert, of course, did not deal with

the burden of proof question.”) (citation omitted). Other circuits considering burdens of proof in discretionary-function

cases after Gaubert have declined to adopt the Prescott court’s analysis, instead leaving the issue unresolved. See Autery

v. United States, 992 F.2d 1523, 1526 n.6 (11th Cir. 1993); Kiehn v. United States, 984 F.2d 1100, 1105 n.7 (10th Cir.

1993) (noting that the Ninth Circuit’s reasoning in Prescott “may be suspect in light of Gaubert,” but finding it

unnecessary to decide the issue). Because we conclude that the discretionary-function exception applies in this case even

if the Government bears the burden of proof, we need not settle this issue here.

1. Hours of Operation/Lighting Conditions

Sharp’s first theory of liability is that the National Forest Service acted negligently in

allowing Bull Gap to remain open during nighttime hours without providing better lighting

conditions. According to Sharp, the National Forest Service’s decisions regarding Bull Gap’s hours

of operation and lighting conditions do not come within the reach of the discretionary-function

exception to the FTCA because the Forest Service Manual mandates the protection of visitors’

health and safety, and the National Forest Service acted negligently in effectuating this policy.

At the heart of this claim is Title 6700 of the Forest Service Manual, which provides in part:

6702 - OBJECTIVE. The objective of the Forest Service safety and health program

is to ensure adequate protection for Forest Service employees and property, Human

Resource Program participants, and the visiting public. . . .

6703 - POLICY

* * * 

2. Safety and health of all involved individuals are the highest priorities on

any job.

3. The Forest Service shall provide safe and healthful facilities for visitors.

Pl.-Appellant’s Br. at 7. Sharp asserts that, while the National Forest Service’s issuance of these

policies amounts to a discretionary act encompassed by the discretionary-function exception, the

National Forest Service’s decisions regarding hours of operation and lighting conditions are not

similarly protected. We disagree.

As the district court correctly noted, Title 6700 of the Forest Service Manual contains “[v]ery

broad statements” that “certainly could not be read” as eliminating the National Forest Service’s

discretion in determining how best to carry out such policies. Joint Appendix (“J.A.”) at 32 (Trial

Tr. Vol. II at 161). Title 6700 does not set forth specific regulations dictating a national forest’s

hours of operation or lighting conditions and thus is not “a mandatory regulation or policy that

allowed no judgment or choice.” Rosebush, 119 F.3d at 441. Hence, the district court correctly

classified the National Forest Service’s decisions to allow twenty-four-hour public access to the

Huron National Forest and to not install additional lighting facilities at Bull Gap as discretionary

acts.
No. 03-2516 Sharp v. United States Page 5

The district court also correctly determined that these decisions were “‘of the kind that the

discretionary function exception was designed to shield.’” Id. (quoting Gaubert, 499 U.S. at 322-

23). As the Government noted, the National Forest Service, in setting the hours-of-operation and

lighting policies for the Huron National Forest, was not required to take account of only Title 6700's

statements regarding health and safety. Rather, the National Forest Service also had to consider

§ 2303 of the Forest Service Manual, which directs the National Forest Service to “[e]nhance[]

recreation exp[]eriences through a minimum of regulation and law enforcement.” J.A. at 67 (Trial

Tr. Vol. II at 49). It is “[t]his balancing of interests . . . [that] characterizes the type of discretion

that the discretionary function exception was intended to protect.” Myers v. United States, 17 F.3d

890, 898 (6th Cir. 1994).

Indeed, we have previously recognized the applicability of the discretionary-function

exception in cases challenging similar National Forest Service determinations. For instance, in

Reetz v. United States, 224 F.3d 794, 797 (6th Cir. 2000), we concluded that the discretionaryfunction exception applied to a suit brought by an ORV operator who had been injured while driving

on a service road that the National Forest Service had not marked as closed to ORV traffic. In so

ruling, we explained that “[d]ecisions protected from tort liability by the discretionary function

exception to the FTCA include: 1) the proper response to hazards; 2) how to make federal lands safe

for visitors; and 3) whether to warn of potential dangers.” Id.; see also Rosebush, 119 F.3d at 443

(ruling that discretionary-function exception encompassed failure to place protective grating and

guard rails around fire pit and failure to warn visitors of fire-pit dangers). Because the National

Forest Service’s decisions regarding the Huron National Forest’s hours of operation and lighting

conditions required the National Forest Service to make policy-type judgments balancing several

competing considerations, we conclude that the district court did not err in applying the

discretionary-function exception and dismissing this claim for lack of subject matter jurisdiction.

2. Law-Enforcement Presence

The second theory of liability asserted in Sharp’s suit is that the National Forest Service

acted negligently in providing inadequate law-enforcement services at Bull Gap. Sharp contends

that the district court erred in dismissing this claim based on the discretionary-function exception

because National Forest Service law-enforcement officers did not comply with the mandatory terms

of the Bull Gap Operating Plan in effect at the time of Chad Sharp’s accident. We conclude that

Sharp’s argument affords him no relief.

As Sharp correctly asserts, if the Bull Gap Operating Plan were deemed to be “a mandatory

regulation or policy that allowed no judgment or choice,” and if it were determined that the National

Forest Service violated the terms of the Bull Gap Operating Plan, the actions at issue would not be

discretionary and the discretionary-function exception to the FTCA would not apply. Rosebush, 119

F.3d at 441. We conclude, however, that neither of these conditions is satisfied. First, the

circumstances surrounding the preparation of the Bull Gap Operating Plan indicate that the plan was

not designed to be a mandatory National Forest Service policy. As the district court correctly

observed, although the Bull Gap Operating Plan states that the National Forest Service “will” use

officers from other local law-enforcement agencies in patrolling Bull Gap, this provision could not

be deemed mandatory because the National Forest Service did not have the ability to compel the

participation of other law-enforcement-agency personnel or to even guarantee its own staffing levels.

The non-mandatory nature of the Bull Gap Operating Plan is further confirmed by the testimony of

Dwight Devereux, an assistant ranger for the Huron National Forest. When questioned about the

Bull Gap Operating Plan, Devereux stated that it was “not a policy,” but rather was merely

“designed to guide [their] activities that [Memorial Day] weekend.” J.A. at 80 (Trial Tr. Vol. II. at

118). Devereux further explained that there was no “requirement or mandat[e] that the Forest

Service actually follow [the Bull Gap Operating P]lan” because “there’s [sic] always circumstances

that require deviations from plans.” J.A. at 80 (Trial Tr. Vol. II at 118); J.A. at 84 (Trial Tr. Vol.
No. 03-2516 Sharp v. United States Page 6

2

We note that our review in this case has been made rather difficult by the parties’ failure to include a copy of

the Bull Gap Operating Plan in the Joint Appendix or to preserve as part of the district court record the trial exhibit

containing the plan.

II at 135) (“I can testify that this is an operating plan and I have some experience with previous

operating plans and I don’t be [sic] in any case that operating plans are followed to the exact T.”).

Hence, we conclude that the Bull Gap Operating Plan did not constitute a mandatory policy dictating

the National Forest Service’s law-enforcement operations during the 1999 Memorial Day weekend.

We also note that, even if the Bull Gap Operating Plan were deemed a mandatory policy, it

does not appear that the National Forest Service violated the plan provisions. Based on the

testimony of the witnesses at trial and the district court’s findings,2 it appears that the Bull Gap

Operating Plan set forth a law-enforcement-officer staffing schedule that called for six officers to

work a shift running from 11:00 a.m. to midnight. J.A. at 42 (Trial Tr. Vol. II at 5). Sharp asserts

that the National Forest Service’s law-enforcement officers did not abide by this work schedule

because they left the Bull Gap area approximately one hour before Chad Sharp’s accident, or

roughly three hours before the end of the scheduled shift. The district court found, however, that

“nothing in [the Bull Gap Operating P]lan required the staff to be present at the hill climb area,” that

the law-enforcement officers had returned to the control center to take care of administrative tasks,

and that the officers’ “plan was to patrol on the way home so that they would indeed arrive at a point

to exit the Huron National Forest during their patrolling activities at or around midnight,

not[]withstanding the fact they had indeed started earlier than this plan would call for.” J.A. at 39

(Trial Tr. Vol. II at 168). As the district court noted, “Indeed, . . . if anything they were doing more

than the plan called for by the schedule they were maintaining and they had not departed for home

as of the time that this call reporting the accident was received.” J.A. at 39-40 (Trial Tr. Vol. II at

168-69). The district court’s findings are well-supported by the testimony at trial. As Officer

Marroquin, who drafted the Bull Gap Operating Plan, explained, the shifts listed in the plan were

designed to reflect the officers’ entire working period, including the time required to return to their

home districts, which appear to have been located more than an hour’s drive from Bull Gap. J.A.

at 93 (Trial Tr. Vol. II at 63) (“We have to give ourselves enough time to make it back to our home

units, that’s the only amount of time we were scheduled for, on the schedule.”); J.A. at 104 (Trial

Tr. Vol. II at 74) (“That was to be the total extent of [the officers’] shift time, and the officers knew

that that were there. We all knew what that meant, it would give us time to get back to our home

units instead of making it a 12 hour day there, if we would have tacked on an extra hour and a half

each way it would make it an extremely long shift.”). Indeed, the officers’ pre-midnight departure

from the Bull Gap area could be seen as required by the Bull Gap Operating Plan’s provision that

“[l]aw enforcement officers will work a schedule that best meets the needs of providing public safety

and protecting property[/]resources,” in that the officers were still responsible for patrolling their

home areas during the Memorial Day weekend, notwithstanding their being scheduled to work at

Bull Gap. J.A. at 90 (Trial Tr. Vol. II at 59); see J.A. at 106 (Trial Tr. Vol. II at 76)

(acknowledgment by Officer Marroquin that he was “the only law enforcement officer assigned to

the Huron shores portion of the Huron National Forest” and that “while [he was] assisting in the Bull

Gap area Memorial Day weekend[, his] area did not have a law enforcement officer patrolling

excep[t] for what [he] could do in the morning and late at night”). Thus, Sharp’s argument that the

discretionary-function exception does not apply because the National Forest Service violated a

mandatory National Forest Service policy lacks merit.

We also conclude that the district court properly determined that the law-enforcementstaffing decisions by the National Forest Service are “‘of the kind that the discretionary function

exception was designed to shield.’” Rosebush, 119 F.3d at 441 (quoting Gaubert, 499 U.S. at 322-

23). The National Forest Service’s decisions regarding the number and assignment of lawenforcement officers are the product of assessing and balancing the needs of all parts of the Huron
No. 03-2516 Sharp v. United States Page 7

National Forest (not simply the Bull Gap area), budgetary constraints, and the Forest Service Manual

directive that “recreation experiences [be enhanced] through a minimum of regulation and law

enforcement.” J.A. at 67 (Trial Tr. Vol. II at 49); J.A. at 56-57 (Trial Tr. Vol. II at 35-36)

(explaining that “we only had a limited amount of Forest Service law enforcement personnel. The

heaviest use time is day time. Night time there’s not much activity, so it’s efficient to put our forces

on during day time, during the busy times.”); J.A. at 71 (Trial Tr. Vol. II at 77) (citing budgetary

reasons for the fact that only two law-enforcement officers were permanently assigned to patrol the

Huron National Forest); see Carlyle v. United States, Dep’t of the Army, 674 F.2d 554, 557 (6th Cir.

1982) (applying discretionary-function exception in suit challenging Army’s manner of supervising

recruits, explaining that although “[t]he plaintiff’s argument might be meritorious if the Army had

in fact decided to place a supervisor in the Hotel only to have that person leave his post,” “[a]ny

decision to supervise [Army recruits] only by means of letters and not to place personnel in the Hotel

was a discretionary function and outside federal jurisdiction”); see also Lockett v. United States, 938

F.2d 630, 639 (6th Cir. 1991) (concluding that EPA’s response to PCB spill fell within

discretionary-function exception, explaining that “these discretionary decisions, based upon

‘judgment calls’ concerning the sufficiency of evidence of violations of applicable regulations, the

allocation of limited agency resources, and determinations about priorities of serious threat to public

health, are the very ‘public policy’ discretionary judgments Congress intended to shield from

liability under section 2680(a)”); Totten v. United States, 806 F.2d 698, 701 (6th Cir. 1986)

(extending discretionary-function exception to Air Force’s decision as to how to clean up spilt rocket

fuel, explaining that the operation “involved discretionary decisions based not only on safety but

also on such considerations as budgetary and time constraints and the availability of personnel with

expertise in solid fuel clean-up”). Thus, the district court properly determined that the discretionaryfunction exception to the FTCA applies and that it did not have subject matter jurisdiction over

Sharp’s suit.

III. CONCLUSION

For the reasons set forth above, we agree with the district court’s determination that the

discretionary-function exception to the FTCA’s waiver of sovereign immunity applies in this case,

and we therefore AFFIRM the dismissal of this action for lack of subject matter jurisdiction.