                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 15-2106


LAURIE L. WOOD,

                  Plaintiff - Appellant,

           v.

UNITED STATES OF AMERICA,

                  Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:14-cv-00469-RAJ-TEM)


Argued:   October 26, 2016                  Decided:   January 4, 2017


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.


Affirmed by published opinion.        Judge Niemeyer wrote         the
opinion, in which Judge Wilkinson and Judge Shedd joined.


ARGUED: Timothy Jon DeMore, DEMORE LAW FIRM, Syracuse, New York,
for Appellant.     Kent Pendleton Porter, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.      ON BRIEF:
Matthew D. Green, Gibson S. Wright, MORRIS & MORRIS, P.C.,
Richmond, Virginia; Brittany E. Aungier, HISCOCK & BARCLAY, LLP,
Syracuse, New York, for Appellant.       Dana J. Boente, United
States   Attorney,   OFFICE  OF  THE   UNITED  STATES   ATTORNEY,
Alexandria, Virginia, for Appellee.
NIEMEYER, Circuit Judge:

       Laurie Wood, a City of Norfolk (Virginia) Sheriff’s Deputy,

was seriously injured during a training session on a Navy base

when she jumped from a training structure onto a set of mats,

landing     in    a     gap    between    them.            She     commenced        this    action

against     the    United       States   under        the    Federal        Tort     Claims      Act

(“FTCA”), alleging that Navy officers negligently allowed the

structure,        particularly      the    mats        placed       adjacent         to    it,   to

remain in a dangerous condition and failed to warn her of the

dangerous gap between the mats.                     The district court granted the

government’s motion to dismiss, concluding that the challenged

Navy   conduct        fell     within    the        FTCA’s       “discretionary           function

exception” and therefore that Congress had not waived sovereign

immunity for Wood’s claim.

       On   appeal,       Wood    contends          that     her    complaint        alleged      a

straightforward negligence claim under Virginia law, for which

the    United      States       waived    sovereign              immunity      in    the    FTCA.

Specifically,           she    argues    that       the     Navy’s       conduct      was     “not

discretionary in nature” so as to be excluded from the waiver of

sovereign immunity because it was not the sort of conduct that

the discretionary function exception was intended to protect.

       Because we conclude that the Navy’s decisions regarding the

maintenance        of    its    military       bases        for    use    by    civilian         law



                                                2
enforcement involved policy judgments that Congress sought to

shield from tort liability under the FTCA, we affirm.


                                             I

       Wood was injured while using a piece of training equipment

located      within       the     Naval    Support      Activity     Hampton       Roads,

Northwest         Annex     (“Northwest      Annex”),       a     restricted       access

military base of some 3,600 acres in Chesapeake, Virginia.                              The

Northwest Annex, which was owned and operated by the Navy, was

managed      by    two     Navy    instrumentalities        --    the     Marine    Corps

Security      Force       Training    Company     and    the     Navy’s    Center       for

Security Forces.

       By statute, the Department of Defense is authorized to make

military facilities such as the Northwest Annex available to

state and local civilian law enforcement officers for training

purposes, 10 U.S.C. § 372, and to train civilian officers to use

those facilities, id. § 373, so long as the civilian training

does   not    “adversely          affect   the   military       preparedness       of   the

United States,” id. § 376.                 A Department of Defense directive

and several military orders set forth policies regarding the use

of military facilities by civilian law enforcement generally,

and Standard Operating Procedures set forth procedures governing

law enforcement’s use of the Northwest Annex specifically.




                                             3
     Before    any    civilian       law        enforcement    agency     may    use

Northwest Annex facilities for training, one of its officers

must qualify under a Marine Corps training program as a Range

Safety Officer.      During that training, the civilian officer is

provided    with   excerpts    of    the       Standard   Operating    Procedures,

which outline the officer’s duties as a Range Safety Officer.

The officer is instructed on how to schedule the facilities,

coach his fellow officers on the range, respond to accidents,

and perform other “basic duties.”                 The officer is also shown a

slideshow     that   admonishes        all       Range    Safety      Officers   to

“REMEMBER!    The [Range Safety Officer] is solely responsible for

the safety and the proper conduct of the training” at the Navy

facility.     Once a civilian officer qualifies as a Range Safety

Officer, he may schedule use of the Northwest Annex for his law

enforcement agency by submitting a request form that specifies

the facilities and equipment being requested.                      This form must

then be approved by a Navy or Marine Corps official, depending

on which branch is responsible for the requested facility.

     Sergeant Brad Ward of the City of Norfolk Sheriff’s Office

qualified as a Range Safety Officer in 2011, and in February

2012, he requested use of two facilities at the Northwest Annex

--   “Munro   Village,”       an    outdoor       tactical    training    facility

designed to resemble a city block, and the “Simunition House.”

Sergeant Ward’s request form did not include a request for use

                                           4
of    the   “Ship     Mockup,”      although       the    form   also     listed    that

facility as available.              His request was approved by an officer

of the Marine Corps, which managed Munro Village.

        The “Ship Mockup,” which is managed by the Navy and on

which Wood was injured, is located near Munro Village and is

within the same general area.                   That equipment, which the Navy

referred to as the “Ship in a Box” or the “mock-ship,” was a

prismatic, three-story structure designed to resemble a foreign

merchant ship.           The Navy used the equipment to simulate ship-

boarding by having soldiers -- clad in armor and strapped into

safety harnesses -- climb a ladder onto the mock-ship’s third

deck.       Several      mats    were    placed    beneath     the   ladder     both   to

recreate the difficulty of beginning a climb from an inflatable

boat and to provide additional fall protection if a soldier’s

harness were to fail.

      On    April     20,   2012,    Wood    and    other    officers,      who   shared

responsibility        for      training    the     Sheriff’s     Office’s      deputies,

arrived at the Northwest Annex in preparation for the training

exercises.      As Wood and the other Sheriff’s Office instructors

walked      through      the     Munro     Village       training    facility,     they

discussed using the mock-ship to create a “bail-out” scenario

for   trainees      to    practice       exiting    a    building    at   an   elevated

height.     They contemplated that the trainees would jump from the

mock-ship onto the mats below from the second story, a height of

                                            5
some    20    feet.         One    instructor,          seeking     to   demonstrate         the

exercise, climbed up onto the mock-ship’s first story and jumped

out onto the mats without incident.                       Wood then climbed onto the

second story and jumped off.                     When she landed, however, two of

the    mats    separated,         and    she     fell     through    the      gap    onto    the

ground.        The    fall        caused    a    burst     fracture      of    her    twelfth

thoratic vertebra, rendering her a paraplegic.

       After Wood’s administrative claim for damages was denied by

the Navy, she commenced this action under the FTCA against the

United States.          She alleged that the United States negligently

maintained the mock-ship in a dangerous condition by (1) failing

to secure a “top pad” to the mock-ship’s mats to prevent them

from separating; (2) failing adequately to inspect the condition

of the mock-ship and its mats; and (3) failing to warn her, as a

lawful       invitee,   of        the    dangerous        condition      created      by     the

possibility of mat separation.                    The government filed a motion to

dismiss Wood’s complaint, contending that the Navy’s challenged

conduct -- consisting of safety-related decisions regarding its

training       facilities         when     used      by   civilian       law    enforcement

agencies       --    fell    within        the       FTCA’s   discretionary           function

exception      and    that    therefore          the    United    States      could    not    be

sued.     The district court agreed and entered an order dismissing

Wood’s complaint for a lack of subject matter jurisdiction.



                                                 6
     After the court entered its order of dismissal, Wood filed

a motion to alter or amend the judgment under Federal Rule of

Civil     Procedure      59(e),     claiming      that     the    district     court’s

dismissal     of   her        complaint    without       allowing    for     discovery

contravened our decision in Kerns v. United States, 585 F.3d 187

(4th Cir. 2009).         The district court, however, found that Kerns

was inapplicable         because    “jurisdictional        facts”    regarding      the

applicability of the discretionary function exception were not

“‘inextricably        intertwined’        with    the    merits     of     Plaintiff’s

claim.”    Accordingly, it denied Wood’s motion.

     From the district court’s May 14, 2015 order dismissing her

complaint and its August 31, 2015 order denying her motion to

alter or amend the judgment, Wood filed this appeal.


                                           II

     “[N]o    action      lies    against       the   United     States    unless   the

legislature has authorized it.”                 Dalehite v. United States, 346

U.S. 15, 30 (1953).

     In the FTCA, Congress waived sovereign immunity for claims

brought against the United States based on the negligence or

wrongful acts or omissions of its employees committed within the

scope of employment, accepting liability in the same manner and

to the same extent as a private individual would have under like

circumstances.           28     U.S.C.    §§ 1346(b)(1),         2671-2680.         This


                                           7
waiver,     however,      is     circumscribed               by     numerous       exceptions,

including an exception for claims “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.”            Id. § 2680(a) (emphasis added).                         Because

waivers of sovereign immunity must be strictly construed, the

plaintiff    bears      the    burden    of       demonstrating            jurisdiction      and

showing that none of the FTCA’s exceptions apply.                                See Welch v.

United States, 409 F.3d 646, 651 (4th Cir. 2005).

     In     this    case,      the   government              challenged          the   district

court’s     jurisdiction         based     on          the        discretionary        function

exception set forth in § 2680(a), and therefore Wood had the

burden of demonstrating that that exception did not apply.                                   To

carry her burden, she alleged that the United States’ creation

and maintenance of an unsafe condition at the mock-ship and its

failure to warn her of the condition were “not discretionary in

nature and therefore [were] not excepted as discretionary acts

from the government’s waiver of sovereign immunity.”

     Acting    on       the    government’s         motion,          the    district     court

dismissed Wood’s complaint, concluding that Wood did not carry

her burden.        In reaching its conclusion, the district court read

Wood’s complaint to challenge the government’s conduct in “the

military’s maintenance decisions regarding the [mock-ship] as an

                                              8
unauthorized      military       facility,       as    opposed     to       a     military

facility that has been approved for civilian use.”                          It concluded

that

       the government’s maintenance of the [mock-ship] when
       it has not been approved for civilian use falls under
       the [discretionary function exception] because it
       implicates   financial  and   staffing   considerations.
       Equipment and facility maintenance considerations, as
       well   as  calculations   balancing    the  benefit   of
       increased   safety   measures   and   increased   costs,
       objectively fall into the category of decisions that
       are susceptible to policy analysis.

       On   appeal,     Wood     contends       that   her   claim      for       premises

liability is a “garden variety” negligence claim that involves

the failure to make premises safe for invitees or to give them

warning of a known danger.              She asserts that Congress did not

intend for these “run of the mill” acts to be shielded by the

discretionary         function       exception.          She      adds          that      the

government’s focus on the training facility’s purposes and the

Navy’s      mission    in    maintaining         the   premises        is       “merely    a

distraction.”         She also argues that its focus is too broad and

general and, moreover, that the district court’s description of

her use of the mock-ship as “unauthorized” is not supported by

her allegations, which must be accepted at this stage in the

proceedings.

       The government contends, on the other hand, that Wood’s

characterization        of     the    conduct     at    issue     is        too    narrow,

collapsing the discretionary function inquiry into the question

                                            9
of negligence on the merits.          The government asserts that Wood’s

complaint actually challenges government decisions regarding the

maintenance    and    inspection    of,      or    the    issuance      of    warnings

relating to, military training facilities used by civilian law

enforcement.         Such   decisions,       it     argues,      are    within       the

discretionary function exception for which the government has

not waived immunity in the FTCA.

     The   determination     of    whether        the    discretionary        function

exception applies requires application of a two-step analysis.

First, a court must determine whether the conduct in question

“involves an element of judgment or choice.”                     Berkovitz ex rel.

Berkovitz v. United States, 486 U.S. 531, 536 (1988).                           When a

statute,   regulation,       or    policy         prescribes      the        employee’s

conduct,   the   conduct     cannot     be        discretionary        and    thus   is

unprotected by the discretionary function exception.                          Id.; see

also United States v. Gaubert, 499 U.S. 315, 322 (1991); Seaside

Farm, Inc. v. United States, No. 15-2562, ___ F.3d ___, 2016 WL

7030629, at *3 (4th Cir. 2016).                   Second, when the challenged

conduct is the product of judgment or choice, the court must

still   determine     whether     the     decision        made    was    “based      on

considerations of public policy.”                 Berkovitz, 486 U.S. at 537.

This second step of the analysis is designed to prohibit courts

from “second guessing” decisions “grounded in social, economic,

and political policy through the medium of an action in tort.”

                                        10
Gaubert, 499 U.S. at 323 (quoting United States v. S.A. Empresa

de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,

814   (1984)).       And     in    this     same     vein,       “when        established

government     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.”                          Id. at

324   (emphasis    added).        In     short,    the    discretionary         function

exception is driven by separation of powers concerns, shielding

decisions of a government entity made within the scope of any

regulatory policy expressed in statute, regulation, or policy

guidance, even when made negligently.

      The    analysis      of     whether      the        discretionary         function

exception    applies    does      not    depend     on    whether       the    government

employee     had   subjective           knowledge        of    his      discretion    or

subjectively intended to exercise it; the analysis must focus

objectively on “the nature of the actions taken and on whether

they are susceptible to policy analysis.”                      Gaubert, 499 U.S. at

325; see also Seaside Farm, 2016 WL 7030629, at *3; Baum v.

United States, 986 F.2d 716, 721 (4th Cir. 1993).

      The analysis also does not depend on whether the conduct

was that of a high-level agency official making policy or a low-

level employee implementing policy.                 See Dalehite, 346 U.S. at

35-36.      Rather, the analysis must focus solely on whether the

                                          11
government conduct involved choice implicating policy.                              Gaubert,

499 U.S. at 323.           Indeed, relying on a distinction between “day-

to-day” actions and “policymaking or planning functions” would

be inappropriate in light of the principle that “[d]iscretionary

conduct is not confined to policy or planning level.                            ‘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 325 (alteration omitted) (quoting Varig

Airlines, 467 U.S. at 813).

       Thus, in Baum v. United States, 986 F.2d 716 (4th Cir.

1993), we        ordered    dismissal     of      a   suit    alleging,        in   relevant

part,    that     the    National     Park     Service       negligently        failed    to

replace a deteriorating guardrail system that broke when the

plaintiffs’ car struck it.            986 F.2d at 718.               We concluded that,

just as a statute gave the Park Service discretion to construct

the    bridge     without     fear    that     courts        would    second-guess        its

design choices, the FTCA shielded the agency’s “decision of how

and when to replace a major element of [that] substantial public

facility.”        Id. at 724; see also Bowman v. United States, 820

F.2d 1393, 1395 (4th Cir. 1987) (holding, on similar facts, that

“[w]hether       [the]     decision    grew       out   of     a   lack    of       financial

resources, a desire to preserve the natural beauty of the vista,

a     judgment    that     the   hazard      was      insufficient        to    warrant    a



                                             12
guardrail, or a combination of all three, . . . [it] is obvious

that the decision was the result of a policy judgment”).

     Therefore, taking the facts alleged by Wood in this case as

defining    the       challenged   government      actions,    see   Gaubert,       499

U.S. at 325, and applying the two-step analysis to them, we must

determine,       on     an   objective   basis,      whether       the     challenged

government conduct involved decisions based on considerations of

public policy.

     Wood alleges, in essence, that pursuant to a request made

by the Norfolk Sheriff’s Office, the Navy authorized that Office

to conduct training exercises on the Navy base in April 2012.

She alleges that the Navy was negligent in failing to maintain

in a safe configuration the mats on which she was injured, by

failing to inspect the mats for the dangerous condition, and by

failing    to    warn    invitees,   such     as   Wood,   about     the    dangerous

condition.       In short, she makes a premises liability claim as an

invitee to a Navy military base, and we must decide therefore

whether these actions that she challenges are protected by the

discretionary function exception.

     Applying          the   two-step    analysis     to      this    conduct,      we

determine       first    whether   the   government        conduct       involved   an

element of choice, which in turn requires the determination of

whether any federal statute, regulation, or policy prescribed

the conduct.       See Berkovitz, 486 U.S. at 536.             On this aspect of

                                         13
the analysis, the parties apparently agree that there was no

mandate     contained      in    any   statute,        regulation,    or    policy

regarding the maintenance, inspection, and warning with regard

to either the mats or the mock-ship.                     In responding to the

government’s      motion   to    dismiss,    Wood      conceded   that     she   was

unable to find any such statute, regulation, or military policy,

and she does not argue otherwise on appeal.                     In addition, the

government presented affidavits from a Navy captain, a Marine

Corps colonel, and the Range Manager at Northwest Annex, stating

that there is no policy directly governing such maintenance,

inspection, and warning procedures when the facilities are used

by a civilian law enforcement agency.               Further, the Marine Corps

order governing range safety does not require the military to

take any specific safety precautions with respect to facilities

that are to be used by civilians.                 Instead, it requires only

that civilian agencies, who “may use [military] ranges at the

discretion of the installation commander,” must “comply with the

provisions of this regulation/order.”                  See Range Safety, Army

Reg. 385-63, MCO 3570.1C (2012).                 And the Standard Operating

Procedures     that   apply      specifically       to   the    Northwest    Annex

prescribe    no    actions      with   respect    to     base   safety.      As    a

consequence, the government conduct involving the safety of the

mock-ship and the mats required Navy personnel to make choices

or exercise judgment.

                                        14
      Even so, for the discretionary function exception to apply,

those      choices     or       judgments       must    also        have    been       “based    on

considerations of public policy” and thus “of the kind that the

discretionary          function         exception       was       designed        to    shield.”

Berkovitz, 486 U.S. at 537.                    In addressing this second step of

the analysis, we look to the “objective,” “general” nature of

the     challenged         actions      and     decide        whether       they       inherently

involved protected policy judgments.                     Baum, 986 F.2d at 720-21.

      We note first that the statutory scheme governing civilian

use   of    military        facilities        sets     out    a    basic    policy      tradeoff

between     permissive          civilian       training       and    constrained        military

resources.          See Gaubert, 499 U.S. at 324 (“[T]he general aims

and   policies        of     the    controlling        statute       will    [typically]        be

evident      from      its      text”).         The     statutes        provide        that     the

Department       of        Defense      may     allow        civilian       law    enforcement

agencies to use Navy facilities, 10 U.S.C. § 372, and may train

civilian        officers         “in     the     operation          and     maintenance         of

equipment,” id. § 373.                 But they also instruct that civilian use

must not interfere with the nation’s “military preparedness.”

Id. § 376.           There can be no doubt therefore that the Navy’s

first-order decision of whether to allow civilian use of its

bases      at    all       is      shielded     by      the       discretionary         function

exception.



                                                15
       In   allowing     civilian    use    of    the   Northwest       Annex       in   the

particular circumstances of this case, the Navy also had to make

several additional decisions -- each under the umbrella of its

initial decision to allow civilians to use the base at all --

and these decisions were necessarily informed by the same policy

considerations expressed in the statutes.                   This is made evident

by the Navy’s internal policy documents covering civilian use of

the facility.        See Gaubert, 499 U.S. at 324 (“[A]n agency may

rely    on     internal      guidelines          rather     than        on        published

regulations”).          For example, in deciding whether to authorize

use of its base by civilian officers, the Navy has chosen to

require that one of those officers qualify as a Range Safety

Officer,     who   is    required    to     be    “solely    responsible           for   the

safety” of their civilian agency while training on the base.                               A

Navy    policy     manual   also    indicates       that    its    officers          should

provide assistance to local law enforcement “at the lowest cost

practicable.”       Similar documents more generally set forth risk-

management frameworks for all Navy decisionmaking.                       See Chief of

Naval    Operations      Instruction       3500.39C       (July    2,    2010).          The

common thread running through the relevant statutes and policy

documents is a recognition that, whenever the Navy exercises its

statutory     discretion     to     allow       civilian    agencies         to    use   its

facilities, it must take into account in exercising its judgment

military preparedness, the safety of the civilian agencies, and

                                           16
costs.      This     complicated        balance    is     well    illustrated          here.

Given the designed purpose of the mock-ship and the mats, which

were intended only as backup protection for armored soldiers

climbing the ship in harnesses, it could be unjustifiably costly

to protect against and warn civilian trainees of the dangers

arising out of uses for which the facility was not designed.

See Baum, 986 F.2d at 722-24 (economic policy considerations

underlying    bridge      construction      project           encompassed    subsequent

decisions involving bridge maintenance).

     At bottom, the Navy’s decision to leave the mats near the

mock-ship     in    a    certain    condition,          its    allegedly     infrequent

inspections of the mock-ship, its decision not to warn civilian

trainees     itself      about    the    condition        of    the   ship,      and    its

decision to qualify the user’s agent as a Range Safety Officer

responsible        for   safety    each     fall        comfortably        within      that

overarching    policy      of    balancing     open       civilian     use,      civilian

safety,     military       preparedness,          and     costs.           And   “[w]hen

established    governmental        policy,        as    expressed     or    implied      by

statute, regulation, or agency guidelines, allows a Government

agent to exercise discretion,” as here, “it must be presumed

that the agent’s acts are grounded in policy when exercising

that discretion.”        Gaubert, 499 U.S. at 324 (emphasis added).

     Wood argues that if the Navy’s maintenance decisions are

protected here, it is difficult to see how the United States

                                          17
could ever be liable for injuries on government property.                                    She

cites cases from courts in other circuits that have expressed

similar     concerns         in    declining         to    extend      the    discretionary

function exception to particular premises-liability claims.                                  In

our   view,    however,        the   requirement           that    shielded        conduct    be

taken pursuant to specific policies expressed in federal law

explains      some     of      those     courts’          reluctance         to    apply     the

discretionary function exception in the particular circumstances

presented.         For example, in Gotha v. United States, 115 F.3d

176, 178 (3d Cir. 1997), a Navy contractor’s employee slipped

and fell on a military base footpath.                           In the absence of any

statutory, regulatory, or internal policy evidence encompassing

the Navy’s decisions with respect to employee safety, the Gotha

court   refused        to    endorse     the        government’s         theory     that     its

conduct     inherently         involved        balancing        national      security       and

employee safety.            Id. at 181-82.

      The   reasoning         in    Gotha,     however,         has   little       application

here, where the Navy’s maintenance decisions with respect to

facilities     used     by     civilian        law    enforcement        fall      within    the

overarching policies of a regulatory scheme that gives officers

discretion in how to implement that policy.                           In this case, where

Congress      by   statute         and   the    Navy       by     internal        policy    have

established        a   regulatory        mission          of    making    military         bases

available      for     civilian-law-enforcement                  training,        the   Navy’s

                                               18
decisions       affecting         the     safety        of    its    bases    for     civilian

trainees should not be subjected to judicial second-guessing.

Were we to hold, for example, that Wood could challenge the

Navy’s decision not to place a warning sign near the mock-ship,

it    would    open       the    Navy    to    tort     liability     for     every    similar

decision made when allowing civilian law enforcement agencies to

use its facilities.              The threat of tort liability would become a

tool    to     shape        Navy        policy,       which     is    exactly       what   the

discretionary function exception seeks to avoid.

       Wood    also       contends       that     the    district       court   incorrectly

defined       the    government’s          challenged         conduct    as     “maintenance

decisions regarding the [mock-ship] as an unauthorized military

facility” -- a description that assumed, contrary to her claim,

that her use of the mock-ship was not authorized and thereby

dictated the court’s decision.                     To be sure, while the district

court did repeatedly express its assumption that the mock-ship

was unauthorized, its ultimate decision did not necessarily rest

on    that    assumption.           The       district       court   observed       that   “the

considerations that apply to this decision are magnified when

the    issue        is     the     military’s         maintenance        of     unauthorized

facilities.”             Moreover, its holding was grounded centrally on

the    fact    that      the     Navy    exercised       discretion      with    respect    to

public policy.           As the court stated:



                                                19
       In this case, the military has declined to adopt any
       policy to conduct pre-training inspections in order to
       ensure that requested facilities are safe for civilian
       use.    Instead, the responsibility to conduct pre-
       training   inspections  is  with  the   [Range  Safety
       Officer]. . . .   The Court finds that [these matters
       are susceptible to policy analysis] because these day-
       to-day operational maintenance decisions regarding the
       condition in which military facilities are to be left
       in when they are not in use, implicate economic policy
       in that they involve considerations such as allocation
       of military resources.

Thus, while the district court ruled with the assumption that

the    mock-ship’s         use    was   unauthorized,             its    reasoning       applied

equally      to     a     situation       where         use      of     the    mock-ship      was

authorized.

       In any event, whether use of the mock-ship was authorized

or    not    does       not     implicate     whether           the   district        court   had

jurisdiction        under       the   FTCA.         As     we    have     pointed      out,   the

permissive use of the Navy’s training facilities by civilian law

enforcement         is    covered       by    policies          announced        in    statutes,

regulations, and orders, and officers’ implementation of these

policies through decisions with respect to the mock-ship and the

mats    is    therefore          protected         by     the    discretionary          function

exception.

       At    bottom,      we     conclude     that        the    government’s         challenged

conduct      here       falls    within      the    FTCA’s        discretionary         function

exception      and       therefore      that        the       district        court    correctly

concluded      that       Congress      did        not,    in     the     FTCA,       waive   the


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sovereign immunity of the United States for Wood’s negligence

claim.


                                            III

       Wood     also   contends      that    the   district       court    abused   its

discretion in denying her motion to amend the judgment under

Federal Rule of Civil Procedure 59(e) to allow her to engage in

jurisdictional discovery, as provided in Kerns, 585 F.3d 187.

She argues in particular that the district court should have

allowed       discovery      of   whether    her   use    of   the      mock-ship   was

unauthorized, which “weighed heavily upon the [District] Court’s

analysis.”

       In Kerns, we reversed an order dismissing a plaintiff’s

complaint under Rule 12(b)(1) because the facts supporting FTCA

jurisdiction -- bearing on whether the defendant was driving

within        the   scope    of   her     employment      --   were     “inextricably

intertwined” with the merits of the plaintiff’s tort claim.                         585

F.3d     at     195.        The   Kerns    decision      sought    to     ensure    that

plaintiffs facing a motion to dismiss were not unfairly deprived

of the additional “procedural safeguards” in Rule 56 (governing

summary judgment) when the merits of their claims are bound up

with jurisdictional issues.               Id. at 195-96.

       Kerns, however, does not apply here.                    As explained above,

the application of the discretionary function exception does not


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turn on whether Wood was authorized to use the mock-ship.                          That

fact    would    indeed   be   relevant       to   the      merits   of   Wood’s   tort

claim.       But it is irrelevant to subject matter jurisdiction.

See    Seaside    Farm,   2016   WL   7030629,         at     *3.    Accordingly,    we

conclude that the district court did not abuse its discretion in

refusing to open discovery to the merits issue in this case.


                                  *       *        *

       For    the   reasons      given,       the       district      court’s      order

dismissing       Wood’s    complaint      for          lack    of    subject    matter

jurisdiction and its order denying her Rule 59(e) motion are


                                                                            AFFIRMED.




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