          United States Court of Appeals
                      For the First Circuit

No. 12-2466

                          MICHAEL MAHON,

                       Plaintiff, Appellant,

                                v.

                     UNITED STATES OF AMERICA,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                              Before

                        Lynch, Chief Judge,
              Torruella and Thompson, Circuit Judges.


     Alan S. Zwiebel, with whom Jonathan Fairbanks and Zwiebel &
Fairbanks, L.L.P. were on brief, for appellant.
     Christine J. Wichers, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.



                         February 7, 2014
           THOMPSON, Circuit Judge.

                            Setting the Stage

           Today's case takes us to the Charlestown Navy Yard in

Charlestown, Massachusetts.         Established in 1800, the Yard is now

a national historic site where one can see the USS CONSTITUTION

(the 216-year-old frigate famously nicknamed "Old Ironsides") and

the Commandant's House (a 19th-century mansion built for the Yard's

first commandant), among other celebrated attractions.                Overseeing

the Yard is the Boston Historical Park Service, a unit of the

Interior Department's National Park Service ("Boston Park" and the

"Service," for short).      Anyone can rent the Commandant's House for

weddings and such, thanks in part to Boston Park's contracting with

Eastern   National   to    manage    the    House     and   Eastern   National's

contracting with Amelia Occasions to handle the events.                   Rental

fees are not exactly cheap, running in the $3,500 neighborhood.

And under the agreements, Amelia Occasions gets to keep 80% of any

fee, while Boston Park and Eastern National get to split the rest.

           An altogether tragic event at the Yard triggered a

lawsuit that is the focus of this appeal.                   Attending a wedding

reception at the Commandant's House, Michael Mahon fell from a

second-story    portico.       His     resulting       injuries    left   him     a

quadriplegic.     Convinced     that       he   had   fallen   because    of    the

portico's (supposedly) dangerously-low railings, Mahon sued the

government on this theory, relying on the Federal Tort Claims Act


                                      -2-
("FTCA," to save some keystrokes). See 28 U.S.C. §§ 1346(b), 2671-

2680.

             For those unacquainted with the mysteries of the FTCA,

this statute waives the government's sovereign immunity for certain

torts committed by its employees in the scope of their employment.

See id. § 1346(b).       Of course there are exceptions.      See id.

§ 2680. And if one applies, the government gets its immunity back,

meaning it need not answer the claim in court because (to use a

little legalese) there is no subject-matter jurisdiction.         See,

e.g., Muniz-Rivera v. United States, 326 F.3d 8, 12 (1st Cir.

2003).   The exception most relevant here bars 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."      See 28 U.S.C. § 2680(a).   This is what is

called   (commonsensically     enough)   the   discretionary-function

exception.     See, e.g., Muniz-Rivera, 326 F.3d at 14-15.

             Invoking that exception, the government moved early on to

dismiss Mahon's case for lack of subject-matter jurisdiction.     See

Fed. R. Civ. P. 12(b)(1).      Mahon then amended his complaint, see

Fed. R. Civ. P. 15(a)(1)(b), adding claims against Eastern National

and Amelia Occasions.     The government reasserted its motion.   And

Mahon in turn opposed — but to no avail, as the district judge

granted the government's dismissal request.


                                  -3-
            Believing   the   judge    got   it   wrong,   Mahon    moved   for

reconsideration, see Fed. R. Civ. P. 59(e), 60(b), arguing that the

agreements involving Boston Park, Eastern National, and Amelia

Occasions    were   "concession   contracts."1       And,   he     added,   the

Service's policy manual (entitled "Management Policies") declares

in section 10.2.4.8 that concession contracts require concessioners

to prepare risk-management programs that jibe with the Occupational

Safety and Health Act of 1970 ("OSHA," from now on) — programs that

the park "superintendent" has to approve.2             All of this meant,

according to Mahon, that Eastern National and Amelia Occasions had


     1
       Broadly speaking, a "concession contract" is "a binding
written agreement between the Director [of the Service] and a
concessioner . . . that authorizes the concessioner to provide
certain visitor services within a park area under specified terms
and conditions."    36 C.F.R. § 51.3.      But these services are
"limited to those . . . that are necessary and appropriate for
public use and enjoyment of the unit of the National Park System in
which they are located." 16 U.S.C. § 5951.
     2
         That section reads:

     Concession contracts require each concessioner to develop
     a risk management program that is (1) appropriate in
     scope to the size and nature of the operation, (2) in
     accord with [OSHA] and the [Service] concession risk
     management   program,    and   (3)   approved    by   the
     superintendent.    Concessioners are responsible for
     managing all of their operations to minimize risk and
     control loss due to accident, illness or injury.       To
     ensure compliance, the Service will include a risk
     management evaluation as part of its standard operation
     review of concession operations.

Both sides rely on the 2006 edition of the policy manual, and we
will follow their lead in assuming that this version controls. See
Shansky v. United States, 164 F.3d 688, 691 n.3 (1st Cir. 1999)
(taking that tack in a similar situation).

                                      -4-
to conduct risk-management assessments. Neither did, he said. But

had they done so, he added, Boston Park would have learned about

the   portico's     "impermissibly   low     railing,"   giving      it   a

nondiscretionary duty to fix the problem and thus placing his case

beyond the discretionary-function exception's reach.             The judge

granted   Mahon's   motion,   vacating     the   dismissal    and   letting

discovery go forward on the issue of whether "the defendants'

relationship was governed by a so-called 'concession contract'"

(which is how the judge characterized his ruling).

           After some discovery, the government again moved to

dismiss for lack of subject-matter jurisdiction.             And the judge

obliged, concluding among other things that even if the contracts

had been concession contracts, and even if Eastern National and

Amelia Occasions had created risk-management plans that dealt with

any railing problems, the government still had discretion to reject

the plan's recommendations — which, he ruled, brings Mahon's case

within the ambit of the discretionary-function exception.

           This appeal followed.3    We now give fresh review to the

judge's dismissal order, taking as true all well-pled facts and

looking beyond the pleadings (to affidavits, depositions, exhibits,


      3
       For anyone wondering about Eastern National and Amelia
Occasions: By stipulation, Mahon voluntarily dismissed his claims
against Eastern National with prejudice. See Fed. R. Civ. P. 41.
His case against Amelia Occasions went to trial, however, and the
jury returned a verdict in Amelia Occasions' favor. And as our
case caption indicates, neither Eastern National nor Amelia
Occasions is a party to this appeal.

                                  -5-
etc.) where necessary.     See, e.g., Carroll v. United States, 661

F.3d 87, 94-95 (1st Cir. 2011); Merlonghi v. United States, 620

F.3d 50, 54 (1st Cir. 2010).    And as we forge on, we keep two other

things in mind:   first, Mahon has the burden of proving sovereign

immunity has been waived, see Skwira v. United States, 344 F.3d 64,

71 (1st Cir. 2003), and second, courts must construe the FTCA's

sovereign-immunity waiver strictly in the government's favor, see

Bolduc v. United States, 402 F.3d 50, 56 (1st Cir. 2005); see also

Dynamic Image Techs., Inc. v. United States, 221 F.3d 34, 39 (1st

Cir. 2000) (explaining that "this general waiver is far from an

open-ended panacea for would-be claimants").

                         Analyzing the Issues

          The parties — who agree on very little — agree on the

legal principles that drive the discretionary-function inquiry.    A

court must first zero in on the conduct that supposedly caused the

harm.   See, e.g., Fothergill v. United States, 566 F.3d 248, 252

(1st Cir. 2009).     Next the court must ask whether the harm-

producing conduct itself is discretionary, knowing that when a

"statute, regulation, or policy" actually dictates "a course of

action," the agent has no choice but to follow the "directive."

Berkovitz v. United States, 486 U.S. 531, 536 (1988); accord

Fothergill, 566 F.3d at 253 (also adding that "[i]n carving out the

discretionary function exception, Congress wanted to prevent courts

from     second-guessing       legislative      and   administrative


                                  -6-
decisionmaking").       If the conduct does involve choice, then the

court must ask "whether the exercise or non-exercise of the granted

discretion is actually or potentially" affected by policy-related

judgments.        Fothergill,    566   F.3d   at    252   (citing      Bolduc    and

Shansky).     Of course the law presumes that discretionary acts

involve policy judgments.           See, e.g., Bolduc, 402 F.3d at 62

(citing, among other cases, United States v. Gaubert, 499 U.S. 315,

324 (1991)).        Anyway, "yes" answers to both questions mean the

discretionary-function exception holds sway and sovereign immunity

blocks the litigation.         But a "no" answer to either question means

the exception does not apply and the suit may continue.

             As   for   the    harm-producing      conduct,    Mahon    basically

complains about Boston Park's (alleged) failure to deal with the

"threat" created by the portico's "dangerously low railing."                     Cf.

Fothergill, 566 F.3d at 253 (explaining that the discretionary-

function exception pivots "on the nature and quality of the harm-

producing conduct, not on the plaintiffs' characterization of that

conduct"). He then makes the following multifaceted argument (sort

of a reprise of what he argued below): (1) The contracts involving

Boston Park, Eastern National, and Amelia Occasions are concession

contracts.    (2) Consistent with section 10.2.4.8 of the Service's

policy    manual,    Eastern    National     and   Amelia     Occasions    had    to

generate a risk-management plan — a plan that Boston Park had to

accept.     (3) But Boston Park let Eastern National and Amelia


                                       -7-
Occasions get away without writing one.          (4) And a "proper plan"

would have highlighted the low-railing situation and proposed

solutions (raising the railing's height, using potted plants or

ropes to keep visitors away from the railing, etc.), leaving Boston

Park no choice but to implement what would have been the plan's

proposed fixes.

             "The simplest way to decide a case is often the best," we

have said.     Stor/Gard, Inc. v. Strathmore Ins. Co., 717 F.3d 242,

248 (1st Cir. 2013) (quoting Chambers v. Bowersox, 157 F.3d 560,

564 n.4 (8th Cir. 1998) (R. Arnold, J.)).         That is true here, as

the   district   judge   showed.    And   that   way   leads    straight   to

affirmance.

             Whether   the   much-discussed   contracts   are    concession

contracts is an interesting question.         But it is one we need not

tackle.   You see, even assuming for argument's sake that these are

concession contracts requiring risk-management assessments, that

Eastern National and Amelia Occasions had prepared reports that

touched on the railing issue, and that Boston Park then opted not

to implement their recommendations, Mahon's discretionary-function

theory still fails.

             On the first question posed by our test, Mahon flags no

discretion-restraining statute, regulation, or policy that compels

Boston Park to adopt a concessioner's risk-management proposals,

whether they be increasing the railing's height, plunking down


                                    -8-
potted plants or stringing up rope to stop visitors from getting to

the railing — or anything else, for that matter.             He makes much of

the fact that the policy manual requires Boston Park to review and

approve    a     concessioner's     risk-management     program.      But     he

identifies nothing there (or elsewhere) suggesting that Boston Park

must carry out whatever changes a concessioner pushes.                      Also

problematic for him is this:         Even the manual on which he pins his

hopes says (in section 8.2.5.1) that the Service's policies do not

impose    park-specific     visitor-safety       requirements,    noting,    for

example,       that   "safeguards"     like     "railings"   might   "not     be

appropriate or practicable in a national park setting."                  "Park

visitors," it adds, "must assume a substantial degree of risk and

responsibility for their own safety when visiting areas that are

managed    and    maintained   as    natural,    cultural,   or   recreational

environments."        And, perhaps most importantly, while saving lives

is unquestionably a priority, the Service and its functionaries

have "discretion" in carrying out that task, the manual stresses.4


     4
       Here is how that section pretty much appears in the policy
manual:

     The saving of human life will take precedence over all
     other management actions as the Park Service strives to
     protect human life and provide for injury-free
     visits. . . .

     .   .   .   When   practicable   and    consistent   with
     congressionally designated purposes and mandates, the
     Service will reduce or remove known hazards and apply
     other appropriate measures, including closures, guarding,
     signing, or other forms of education. In doing so, the

                                       -9-
          What   we   just   said    undoes   Mahon's   theory    that   the

government's hands are tied on this subject. In other words, given

the record here, the decision whether to implement concessioner-

generated risk-management recommendations involves choice.               And

that means that the complained-of conduct — essentially, how the

government "manage[s] risks" (to quote Mahon) — is the product of

discretion.    See, e.g., Fothergill, 566 F.3d at 253; Bolduc, 402

F.3d at 61; Shansky, 164 F.3d at 691.

          That leaves this question:          Is the discretion policy-

driven — that is, is it fueled by "variables about which reasonable

persons can differ"?    See Fothergill, 566 F.3d at 253.           The law

presumes that it is, as we said a few paragraphs ago.            See, e.g.,

Bolduc, 402 F.3d at 62.      It was up to Mahon, then, to rebut that

presumption.   See, e.g., id.       This he has not done.   Which is not


     Service's preferred actions will be those that have the
     least impact on park resources and values.

     . . . Park visitors must assume a substantial degree of
     risk and responsibility for their own safety when
     visiting areas that are managed and maintained as
     natural, cultural, or recreational environments.

     These management policies do not impose park-specific
     visitor safety prescriptions. The means by which public
     safety concerns are to be addressed is left to the
     discretion of superintendents and other decision-makers
     at the park level who must work within the limits of
     funding and staffing. Examples include decisions about
     whether to . . . install guardrails and fences . . . .
     Some forms of visitor safeguards typically found in other
     public venues — such as fences [and] railings . . . — may
     not be appropriate or practicable in a national park
     setting.

                                    -10-
surprising.       After all, deciding what if any changes to make or

precautions to take at the Commandant's House requires a balancing

of competing values — "efficiency, safety, aesthetics, and cost"

come quickly to mind.        See Fothergill, 566 F.3d at 253.       And that

is the stuff of policy analysis. See, e.g., id.; Shansky, 164 F.3d

at 695.

            But above and beyond this unrebutted presumption, we note

that the government also put on affirmative evidence that decisions

concerning the railing's height implicated policy judgments.

Specifically, the government noted that a contractor working on the

portico months after Mahon's accident said that the railing did not

comply    with    the   Massachusetts   building   code's   42-inch   height

requirement.      Despite the contractor's concerns about safety, the

government chose not to bump up the railing's height to 42 inches

because doing so would have altered the historic appearance of the

Commandant's House.

            The    bottom    line,   then,   is    that   the   government's

discretion here is deeply rooted in policy considerations.              And

Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995), does not change

matters, despite what Mahon says.        Cope got hurt in a car accident

on a road in a park maintained by the Service.              Id. at 446-47.

Suing the government, he alleged in part that the Service's failure

to post sufficient warning signs at a dangerous curve had caused

the mishap.      Id.    Among other things, the Cope court stressed that


                                     -11-
the Service already had put up nearly two dozen traffic devices and

signs along the drive — steps that suggested that the Service had

already made the policy choice to choose safety over aesthetics.

See id. at 452; see also Shansky, 164 F.3d at 694 (discussing

Cope).   Critically, too, the government could not point to a

sufficient policy basis to justify not adding more or different

signs — signs that could have ensured that the Service's already-

taken safety steps worked better.        Cope, 45 F.3d at 452.   To put

this slightly differently, the government there never explained how

the placement of additional signs involved protected discretionary

decisions.    Id.   That is worlds apart from our case.   So Cope does

not help Mahon.

                               Summing Up

             Mahon's injuries are truly saddening.    Yet "hard as our

sympathies may pull us, our duty to maintain the integrity of the

substantive law pulls harder."       Medina-Rivera v. MVM, Inc., 713

F.3d 132, 138 (1st Cir. 2013) (quoting Turner v. Atl. Coast Line

R.R. Co., 292 F.2d 586, 589 (5th Cir. 1961) (Wisdom, J.)).          And

having concluded that the FTCA's discretionary-function exception

bars Mahon's claims against the government (no matter how strong

they are), we must uphold the district judge's order dismissing the

case for lack of subject-matter jurisdiction.

             Affirmed.   No costs to either party.




                                  -12-
