           Case: 18-10625   Date Filed: 01/15/2019   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10625
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 5:15-cv-00560-CLS



SHANNON RUTHERFORD,

                                                               Plaintiff-Appellee,

                                    versus

UNITED STATES OF AMERICA,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                            (January 15, 2019)

Before ED CARNES, Chief Judge, MARTIN, and BRANCH, Circuit Judges.

PER CURIAM:
              Case: 18-10625    Date Filed: 01/15/2019   Page: 2 of 13


       Shannon Rutherford, a civilian employee of the United States who worked

on an Army base, sued the United States under the Federal Tort Claims Act

(FTCA) after she was injured while she tried to leave the base. After a bench trial

the district court entered judgment for Rutherford. We reverse that judgment

because the discretionary function exception to the FTCA shields the United States

from liability in this case.

                                         I.

       Rutherford worked at the NASA installation on Redstone Arsenal, a U.S.

Army garrison that we will refer to as a base. On the day in question, Rutherford

was driving up to one of the base’s gates to leave while Tommy Bannister drove up

to the same gate from outside to enter. Bannister was not authorized to enter the

base, but he hoped he could cut through the base to get to a destination on the other

side. He was instructed by James Jones, a gate guard, to use a turn-around lane to

exit the base. When Bannister failed to use the turn-around lane and instead

continued toward the base, Jones deployed a retractable steel barrier that blocked

both the inbound and outbound lanes at the gate. Jones did not check to see if any

cars were approaching the gate on the outbound lane before he deployed the

barrier, so he did not see Rutherford’s car approaching. Rutherford was unable to

stop her car before she reached the barrier. She crashed into the barrier and was

seriously injured.


                                          2
              Case: 18-10625     Date Filed: 01/15/2019    Page: 3 of 13


      After obtaining no relief through a military administrative process,

Rutherford sued the United States under the FTCA. The United States moved to

dismiss or, alternatively, stay Rutherford’s suit until the Secretary of Labor could

determine whether Rutherford was eligible for federal workers’ compensation

under the Federal Employees’ Compensation Act. The district court denied the

United States’ motion and its later motion to reconsider. The United States later

filed a motion to dismiss for lack of subject matter jurisdiction, arguing that the

FTCA’s discretionary function exception barred Rutherford’s suit. The district

denied that motion as well. After a bench trial the district court entered judgment

for Rutherford.

                                          II.

      The United States contends that the district court erred in finding that the

discretionary function exception to the FTCA does not apply. Whether the

discretionary function exception applies is a question of subject matter jurisdiction

we review de novo. U.S. Aviation Underwriters, Inc. v. United States, 562 F.3d

1297, 1299 (11th Cir. 2009) (per curiam).

      Under the FTCA the United States has generally waived its sovereign

immunity from suit in federal courts for the negligent actions of its employees.

See 28 U.S.C. § 1346(b). That general waiver is subject to certain exceptions,

including the discretionary function exception. See id. § 2680(a). That exception


                                           3
              Case: 18-10625     Date Filed: 01/15/2019   Page: 4 of 13


“precludes government liability for ‘[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.’” Cohen v. United States, 151 F.3d 1338, 1340

(11th Cir. 1998) (alterations in original) (quoting 28 U.S.C. § 2680(a)). “[T]he

mere fact a government official performs an action at the ‘operational level’ (as

opposed to the ‘planning level’) does not remove that official’s action from the

discretionary function exception for purposes of suits under the FTCA.” Id. at

1342. “If the discretionary function exception applies, the FTCA claim must be

dismissed for lack of subject matter jurisdiction.” Id. at 1340.

      “The Supreme Court has enunciated a two-part test for determining whether

the discretionary function exception bars suit against the United States in a given

case.” Id. at 1341. “First, we consider the nature of the conduct and determine

whether it involves ‘an element of judgment or choice.’” Ochran v. United States,

117 F.3d 495, 499 (11th Cir. 1997) (quoting United States v. Gaubert, 499 U.S.

315, 322, 111 S. Ct. 1267, 1273 (1991)). “Government conduct does not involve

an element of judgment or choice, and thus is not discretionary, if a federal statute,

regulation, or policy specifically prescribes a course of action for an employee to

follow, because the employee has no rightful option but to adhere to the directive.”

Id. (quotation marks omitted).


                                          4
              Case: 18-10625    Date Filed: 01/15/2019    Page: 5 of 13


      “Second, if the conduct at issue involves the exercise of judgment, we must

determine whether that judgment is grounded in considerations of public policy.”

Id. (citing Gaubert, 499 U.S. at 322–23, 111 S. Ct. at 1273–74). “[T]he purpose of

the exception is to prevent judicial second-guessing of legislative and

administrative decisions grounded in social, economic, and political policy through

the medium of an action in tort . . . .” Gaubert, 499 U.S. at 323, 111 S. Ct. at 1273

(quotation marks omitted). “In making this determination, we do not focus on the

subjective intent of the government employee or inquire whether the employee

actually weighed social, economic, and political policy considerations before

acting.” Ochran, 117 F.3d at 500. “Instead, we ‘focus on the nature of the actions

taken and on whether they are susceptible to policy analysis.’” Cohen, 151 F.3d at

1341 (quoting Gaubert, 499 U.S. at 325, 111 S. Ct. at 1275). “When 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, 111 S. Ct. at 1274.

      Before applying this two-part test, “we must determine exactly what conduct

is at issue.” Autery v. United States, 992 F.2d 1523, 1527 (11th Cir. 1993). Three




                                          5
                Case: 18-10625         Date Filed: 01/15/2019        Page: 6 of 13


actions or omissions are at issue here 1: (1) Jones’ failure to retain Bannister’s ID

before allowing him to drive toward the turn-around lane; (2) Jones’ decision to

raise the retractable barrier after Bannister failed to use the turn-around lane and

continued toward the base; and (3) Jones’ failure to make a reasonable effort to

ensure that no other vehicles would be affected by the barrier if he deployed it.

Contrary to the district court’s findings, all of that conduct is protected by the

discretionary function exception.

                                                 A.

       The district court found that Jones’ failure to retain Bannister’s ID before

allowing him to drive toward the turn-around lane failed both prongs of the

discretionary function exception test. In doing so, the court extended an action

mandated by a regulation to include a best practice taught in training that was not

mandatory.

       The regulation at issue requires gate guards to “[o]btain a form of

government ID” from anyone trying to gain access to the base without

authorization. The district court read that language to also require gate guards not




       1
           The district court addressed a fourth: the decision to design the retractable barrier so
that it blocked both the inbound and outbound lanes whenever the barrier was deployed. The
district court found that the discretionary function exception protected that particular decision.
Neither party has appealed that finding, so we will not address it.

                                                  6
              Case: 18-10625     Date Filed: 01/15/2019    Page: 7 of 13


to return the ID of the driver until the driver used the turn-around lane and was

prepared to leave the base.

      But the regulation says nothing about how long a gate guard must retain an

unauthorized person’s government ID after obtaining it; it simply requires gate

guards to “[o]btain a form of government ID.” “Obtain” and “retain” refer to two

different — though related — concepts. To “obtain” something is to acquire it.

E.g., Obtain, Black’s Law Dictionary (10th ed. 2014) (“To bring into one’s own

possession; to procure, esp. through effort <to obtain wealth>.”); Bryan A. Garner,

Garner’s Dictionary of Legal Usage 626 (3rd ed. 2011) (“[O]btain is a formal word

for get.”). To “retain” something, on the other hand, is to keep something that has

already been obtained. E.g., Retain, Black’s Law Dictionary (10th ed. 2014) (“To

hold in possession or under control; to keep and not lose, part with, or dismiss.”);

Garner, supra, at 782 (“[R]etain is a formal word for keep.”). So the regulation

required Jones to acquire a government ID from Bannister, but it did not require

him to keep it for any specific amount of time or until any specified event had

occurred.

      The record does indicate that the local policy was to retain an unauthorized

driver’s government ID in the way the district court found to be required by the

regulation. But the record also indicates that retaining an unauthorized driver’s ID

is not a requirement, just a best practice; gate guards have discretion not to retain


                                           7
                Case: 18-10625        Date Filed: 01/15/2019        Page: 8 of 13


an unauthorized driver’s ID depending on, for example, the availability of other

guards and the amount of traffic at the gate. Although Jones was required by the

regulation to obtain Bannister’s ID, he had discretion under the local policy not to

retain it.

       Jones’ failure to obtain Bannister’s ID and his failure to retain it constitute

separate conduct, and only his failure to retain it is at issue given how Rutherford

presented her case to the district court.2 See Autery, 992 F.2d at 1527. Rutherford

alleged that Jones’ failure “to retain Mr. Bannister’s license” — not his failure to

obtain it — caused her injuries.3 The relevant headings of her post-trial briefs use

“Retain,” not “Obtain.” And in those briefs, she focused on Jones’ failure to retain

Bannister’s ID while making no more than passing references to any failure to

obtain it.4 The closest Rutherford came to arguing that Jones’ failure to obtain



       2
         Interestingly enough, Rutherford used “obtain” in her brief to this Court to the near total
exclusion of “retain.” She used “retain” in this context only once in her brief, noting that “Jones
was trained to retain [an unauthorized visitor’s’] ID.”
        She otherwise used “obtain” in her brief to this Court where she used “retain” in her
submissions to the district court. Here’s one example: She noted in her first post-trial brief that
“a collateral advantage of retaining the ID is to incentivize the individual to turn around
appropriately.” (Emphasis added and quotation marks omitted.) But in her brief to this Court,
she noted that “[o]ne purpose of the requirement of obtaining a form of ID is to provide that
individual an incentive to turn around . . . .” (Emphasis added.)
       3
         That is based on the summary of her claims in the amended pretrial order, which
“superseded all prior pleadings and ‘control[ed] the course of the action,’” Rockwell Int’l Corp.
v. United States, 549 U.S. 457, 474, 127 S. Ct. 1397, 1409 (2007) (alteration in original)
(quoting Fed. R. Civ. P. 16(d)).
       4
         The relevant subsection of her first post-trial brief concludes as follows: “Therefore, the
discretionary function exception is inapplicable to Jones’ conduct of failing to retain ID.”
                                                 8
                Case: 18-10625         Date Filed: 01/15/2019      Page: 9 of 13


Bannister’s ID independently caused her injuries was when she incorrectly asserted

that the phrase “[o]btain a form of government ID” should be read to include a

specific command about how long a gate guard should retain the ID. 5

       Because Jones had discretion not to retain Bannister’s ID, his decision not to

do so satisfies the first prong of the discretionary function exception test — even if



(Emphasis added.) The relevant subsection of her second post-trial brief focuses on “the
requirement of the retention of ID.” (Emphasis added.)
       5
         She first made this assertion in her response to the government’s motion to dismiss for
lack of subject matter jurisdiction based on the discretionary function exception. She asserted
that “Jones had no discretion to disobey the” regulation — which, again, required Jones to
“[o]btain a government ID” from Bannister — “by failing to obtain or retain Bannister’s ID.”
(Emphasis added.)
        She made this assertion more directly in her post-trial briefing, where she characterized a
witness’ testimony as “confirm[ing]” that retaining an ID “is not just a local practice, but is
actually contained in the mandatory language of the” regulation. In both of her post-trial briefs
in the district court, she cited the following passage from the trial transcript:
       Q:      We talked about the standard protocol and procedure of the guard
               retaining an individual’s ID if he can’t provide proper information to gain
               access?
       A:      Yes, sir.
       Q:      Do you remember that? You said there was no written requirement for
               that. Didn’t you say that?
       A:      None at the time of the incident, yes, sir.
       Q:      Okay. I’m going to refer you again to Plaintiff’s Exhibit 1, Page 22, Bates
               22. Paragraph 9 is regarding access denial/vehicle turnaround. Paragraph
               9 Subsection a, it goes on to say, “If unable to validate the visit, initiate
               turnaround procedures.” Number one, “Obtain a form of government ID.”
       A:      Yes, sir.
       Q:      Is that part of the order?
       A:      Yes, sir.
(Emphasis added.) The words we have underscored make it clear that Rutherford reads
“[o]btain a form of government ID” to mean “obtain a form of government ID and retain
it.”

                                                  9
             Case: 18-10625     Date Filed: 01/15/2019    Page: 10 of 13


he abused his discretion. See 28 U.S.C. § 2680(a). His decision also satisfies the

second prong because it is susceptible to policy analysis. The district court

identified the relevant policies, which are set out in an Army regulation:

“prevent[ing] an unauthorized vehicle or pedestrian from entering” the base and

“maximiz[ing] throughput of vehicular and pedestrian traffic.” Jones’ decision

about whether to retain Bannister’s ID was grounded in those policies, and that’s

enough to meet the second prong of the discretionary function exception test. See

Gaubert, 499 U.S. at 324–25, 111 S. Ct. at 1274–75; Cohen, 151 F.3d at 1342.

      In sum, Jones’ failure to retain Bannister’s ID is protected by the

discretionary function exception.

                                          B.

      The district court did not explicitly rule whether the discretionary function

exception protected Jones’ decision to raise the retractable barrier. But the district

court’s discussion suggests that it found the decision was not protected by the

discretionary function exception. The court stated that Jones’ judgment “that Mr.

Bannister was ‘a gate runner’ who posed a threat to the security of the [base] was

not rationally grounded in fact” because the situation did not match any of the

threat scenarios described in the relevant regulation. Although the district court

viewed those threat scenarios as a non-exhaustive list of demonstrative examples,




                                          10
              Case: 18-10625        Date Filed: 01/15/2019   Page: 11 of 13


it also emphasized “the lack of congruence between Mr. Bannister’s actions and

the vehicle threat scenarios described in regulations.”

      To the extent the district court relied on those findings to determine that the

discretionary function exception did not apply to Jones’ decision to raise the

retractable barrier, it erroneously “collapse[d] the question of whether [Jones] was

negligent into the discretionary function inquiry.” Autery, 992 F.2d at 1528. In

effect, the court found that Jones abused his discretion, but such a finding is not a

part of the discretionary function exception, which can apply “whether or not the

discretion involved [was] abused.” 28 U.S.C. § 2680(a). The relevant regulation

plainly states that “[t]he decision to deploy the [retractable barrier] will be at the

discretion” of the gate guards and that gate guards “are authorized to immediately

deploy” the retractable barrier “[i]f a threat is perceived.”

      Jones’ decision to raise the barrier is the type of action the discretionary

function exception protects because it necessarily “involve[d] ‘an element of

judgment or choice,’” Ochran, 117 F.3d at 499 (quoting Gaubert, 499 U.S. at 322,

111 S. Ct. at 1273), that was grounded in the public policy of ensuring the safety

and security of the base, see id.

                                             C.

      The district court also found that Jones’ failure to make any effort to ensure

that no other vehicles would be directly affected by deploying the retractable


                                             11
             Case: 18-10625      Date Filed: 01/15/2019    Page: 12 of 13


barrier was not protected by the discretionary function exception because the

relevant regulation required him to make at least some effort. Here again, the

district court erroneously “collapse[d] the question of whether [Jones] was

negligent into the discretionary function inquiry.” Autery, 992 F.2d at 1528.

      The relevant regulation states that a gate guard “will make a reasonable

effort to ensure that there are no other vehicles that will be directly affected by

deploying the” retractable barrier. The district court acknowledged the discretion

inherent in the phrase “reasonable effort” but found that the regulation required

Jones to “make some effort” — meaning Jones did not have discretion to make no

effort. With that erroneous reasoning the court concluded that Jones’ failure to

make any effort did not meet the first prong of the discretionary function test

because it did not “involve[] ‘an element of judgment or choice.’” Ochran, 117

F.3d at 499 (quoting Gaubert, 499 U.S. at 322, 111 S. Ct. at 1273).

      Although the regulation required a “reasonable effort,” it allowed Jones to

exercise judgment or choice as to what a “reasonable effort” would be. See

Ochran, 117 F.3d at 500–01. In some situations a “reasonable effort” may be no

effort — if, for example, even a momentary delay to check for other vehicles

would prevent the retractable barrier from stopping a threat. Whether this

particular case involves such a situation is irrelevant for the first prong of the

discretionary function exception test. What matters is the existence of discretion,


                                           12
               Case: 18-10625       Date Filed: 01/15/2019       Page: 13 of 13


not whether that discretion was wisely exercised. Discretion did exist. See id. at

501–02; see also Cohen, 151 F.3d at 1342 (“[E]ven though a statute or regulation

imposes a general duty on a government agency, the discretionary function

exception may still apply if the agency retains sufficient discretion in fulfilling that

duty.”). And the exercise of discretionary judgment satisfies the second prong of

the discretionary function exception test because its existence is grounded in the

public policies of ensuring the safety of the base and other vehicles at the gate. See

Cohen, 151 F.3d at 1341. The discretionary function exception bars us from

evaluating Jones’ exercise of judgment.

                                               III.

       We hold that the discretionary function exception to the FTCA shields the

United States from liability to Rutherford under the FTCA and that the district

court should have dismissed Rutherford’s FTCA suit for lack of subject matter

jurisdiction. 6 The district court’s judgment is

       REVERSED.




       6
         Given our conclusion that the district court lacked subject matter jurisdiction over
Rutherford’s FTCA claims, we need not address the United States’ contention that the district
court erred in finding that there is not a substantial question whether the Federal Employees’
Compensation Act covers Rutherford’s injuries.

                                               13
