                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-1280


PLEAZE WORKMAN, Administrator of the Estate of Dixie Workman, Deceased,

                     Plaintiff - Appellant,

              v.

UNITED STATES OF AMERICA,

                     Defendant - Appellee.



Appeal from the United States District Court for the Southern District of West Virginia, at
Huntington. Robert C. Chambers, District Judge. (3:15-cv-14327)


Submitted: January 16, 2018                                  Decided: February 12, 2018


Before DUNCAN, KEENAN, and FLOYD, Circuit Judges.


Affirmed as modified by unpublished per curiam opinion.


Menis E. Ketchum, III, Larry A. Bailey, GREENE, KETCHUM, FARRELL, BAILEY &
TWEEL, Huntington, West Virginia, for Appellant. Carol A. Casto, United States
Attorney, Fred B. Westfall, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Pleaze Workman, administrator of the estate of Dixie Workman, appeals the district

court’s order granting the Government’s motion for summary judgment and dismissing

Workman’s complaint pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346(b)(1), 2671-2680 (2012).        Under the FTCA, the United States has waived

sovereign immunity for “the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or employment.” 28 U.S.C.

§ 1346(b)(1). Several exceptions apply to this waiver, however, including the discretionary

function exception. 28 U.S.C. § 2680(a). The discretionary function exception provides

that the FTCA does not apply to 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.

       This appeal turns on the applicability of the discretionary function exception to

Workman’s negligence claim, an issue that we review de novo. Indem. Ins. Co. of N. Am. v.

United States, 569 F.3d 175, 179 (4th Cir. 2009). “To determine whether the exception

applies, we consider whether the government action at issue ‘involve[d] an element of

judgment or choice’ that [was] ‘based on considerations of public policy.’” Holbrook v.

United States, 673 F.3d 341, 345 (4th Cir. 2012) (quoting Berkovitz v. United States, 486

U.S. 531, 536–37 (1988)). Our review convinces us that the design of the step and warning

sign at issue here involved policy considerations and choices protected by the discretionary

function exception, and we therefore affirm that portion of the district court’s order.

Workman v. United States, 232 F. Supp. 3d 910 (S.D.W. Va. 2017).

                                              2
       However, because the district court concluded that the Government had not waived

sovereign immunity with regard to this claim, the court should have dismissed the claim

for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Williams v.

United States, 50 F.3d 299, 303-04 (4th Cir. 1995). We find it unnecessary to remand this

matter, however, because the parties have correctly identified and argued the issue on

appeal. Id. (declining to remand because parties sufficiently addressed issue and no factual

development was necessary). Accordingly, we affirm the judgment as modified to reflect

a dismissal for lack of subject matter jurisdiction. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before this court

and argument would not aid the decisional process.

                                                              AFFIRMED AS MODIFIED




                                             3
