                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1787
                                   ___________

Raphael Demery,                          *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
       v.                                * District Court for the District
                                         * of North Dakota.
United States Department of the          *
Interior; Bureau of Indian Affairs,      *
                                         *
             Appellees.                  *
                                    ___________

                             Submitted: December 15, 2003

                                 Filed: February 6, 2004 (Corrected 2/20/04)
                                  ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and FAGG, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Raphael Demery appeals the summary judgment entered against him in his
action under the Federal Tort Claims Act (FTCA) against the United States
Department of the Interior and the Bureau of Indian Affairs (hereinafter referred to
collectively as BIA). For the reasons stated below, we affirm the district court's1
order.


      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
                                            I.
       This case arises out of the drowning death of Mr. Demery’s wife which
occurred when the snowmobile on which she was a passenger was driven into open
water on Belcourt Lake. At the time of Ms. Demery's death, the BIA maintained an
aeration system on the lake that prevented a portion of it from freezing. In order to
provide a warning of the open water, the BIA had set up laths with red flags
approximately thirty to fifty feet apart and had established a snow berm encircling the
area. Additionally, large signs bearing the words "Danger, Open Water" were erected
near at least two vehicle entrances to the lake.

       Mr. Demery filed a wrongful death action against the BIA under the FTCA, see
28 U.S.C. § 1346(b), asserting that the BIA failed to maintain the aeration system
properly, carefully, and continuously. He also claimed that the BIA failed to mark
the open water properly and to warn the public of its dangers. Mr. Demery argued
that the BIA’s negligence caused his wife’s death.

       The BIA moved for summary judgment, asserting that the court lacked
jurisdiction because of what is commonly called the discretionary-function exception
to the FTCA, see 28 U.S.C. § 2680(a). The district court agreed with the BIA, finding
that the "decision to aerate the lake, the design of the aeration system, whether to
warn of the dangers of open water on the lake attributable to the aeration system, and
the types of markings and warnings as well as the effectiveness of various types of
warnings" were all decisions protected by the exception. Thus, the district court
concluded, the BIA was immune from suit for its decisions regarding Belcourt Lake
and the district court lacked jurisdiction to hear the case.

                                         II.
       The FTCA generally waives the federal government's sovereign immunity for
certain torts committed by government employees. The Act allows suits against the
United States for "personal injury or death caused by the negligent or wrongful act

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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." 28 U.S.C. § 1346 (b)(1). Thus, actions of
the BIA's employees can expose the United States to tort liability for money damages.
See 28 U.S.C. §§ 1346(b), 2671.

      The FTCA's waiver of sovereign immunity is limited, however, by several
exceptions, one of which removes the effects of some governmental decisions from
the waiver in order to protect government policy making. See Dykstra v. United
States Bureau of Prisons, 140 F.3d 791, 795 (8th Cir. 1998); see also 28 U.S.C.
§ 2680. Under this exception, the United States may not be sued under the FTCA 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."
28 U.S.C. 2680(a).

       In order to take advantage of the exception, the government must first establish
that the employee's action "involve[d] an element of judgment or choice." Berkovitz
by Berkovitz v. United States, 486 U.S. 531, 536 (1988). If a statute, regulation, or
specific policy dictates the employee's actions, he or she cannot be said to be
exercising discretion, and the exception to the waiver of sovereign immunity does not
apply. Id.; Appley Bros. v. United States, 164 F.3d 1164, 1170 (8th Cir. 1999); C.R.S.
by D.B.S. v. United States, 11 F.3d 791, 795-96 (8th Cir. 1993). Mr. Demery
concedes that there are no specific or clear BIA policy statements regarding aerated
lakes or the necessity or adequacy of warning signs to be located near them.
Therefore, decisions regarding the maintenance of the aeration system, whether
warnings of the open water would be posted, and the method and manner of those
warnings were discretionary. Cf. Chantal v. United States, 104 F.3d 207, 210 (8th
Cir. 1997).



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        Even if the employee's action was discretionary, however, the "court must
[still] determine whether that judgment is of the kind that the discretionary function
exception was designed to shield" before concluding that a suit is barred. Berkovitz,
486 U.S. at 536. "The basis for the discretionary function exception was Congress'
desire 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.' " Id. at 536-37 (quoting United States v. Varig Airlines, 467 U.S. 797, 814
(1984)). The judgment or decision need only be susceptible to policy analysis,
regardless of whether social, economic, or political policy was ever actually taken
into account, for the exception to be triggered. C.R.S., 11 F.3d at 801.

       "When established governmental policy ... allows a Government agent to
exercise discretion, it must be presumed that the agent's acts are grounded in policy
when exercising that discretion." United States v. Gaubert, 499 U.S. 315, 324 (1991);
see also Audio Odyssey, Ltd. v. United States, 255 F.3d 512, 519 (8th Cir. 2001). The
plaintiff must rebut this presumption. Dykstra, 140 F.3d at 796. Otherwise, the court
will "presume the decision was based on public policy considerations." Id.

       The BIA's maintenance of the aeration system clearly lends itself to policy
analysis. The original decision to aerate the lake was made to promote Belcourt
Lake's fish populations. This decision concerned protecting the environment and
aquatic habitats, which are obvious issues of policy. The BIA's decisions about how
it would go about aerating the lake and maintaining the open water were part of its
original decision to aerate the lake. Mr. Demery has not and could not produce
evidence that would take these decisions out of the realm of decisions that the
discretionary function exception was designed to protect. The BIA is therefore
immune from suit for decisions regarding the BIA's maintenance of the aeration
system.




                                          -4-
      Mr. Demery argues, however, that once the BIA aerated the lake, it had a duty
properly and adequately to warn the public of the danger that the open water created.
The BIA actually made two separate discretionary decisions with respect to the
warnings at Belcourt Lake: First, a BIA employee decided to warn the public about
the danger; and second, he decided what kind of warnings to erect. Mr. Demery
argues that while the first decision was protected by the discretionary-function
exception, the second was not.

      If Mr. Demery is correct, the federal government could not be held accountable
for deciding not to issue warnings, but if it decided to do so (an act that Mr. Demery
and this court agree would be socially beneficial ceteris paribus) it would be open to
suit. A governmental agency would then be well advised never to decide to issue
warnings in the first place when its decision is susceptible to policy analysis. This
makes scant sense.

       Beyond the common sense reason that Mr. Demery's argument must fail, our
case law requires it. The BIA's first decision (whether to warn or not) is susceptible
to a policy analysis that weighs the benefits of warning (e.g., increased safety) with
its costs (e.g., the cost of erecting warnings). That decision satisfies Berkovitz
because these are issues of social, political, and economic policy. See C.R.S., 11 F.3d
at 801-02; Layton v. United States, 984 F.2d 1496, 1504 (8th Cir. 1993), cert. denied,
510 U.S. 877 (1993). Mr. Demery concedes this point. The BIA's second decision
(the manner and method used to warn) is also susceptible to policy analysis, however.
See Layton, 984 F.2d at 1504-05; Buffington v. United States, 820 F. Supp. 333, 335-
36 (W.D. Mich. 1992). As the sophistication of warning mechanisms increases, so
does the monetary cost and the aesthetic displeasure associated with the warnings.
Cf. Chantal, 104 F.3d at 212. The BIA could have weighed these policy factors when
determining what kind of warning system to deploy. Mr. Demery has presented no
evidence that rebuts the presumption that the BIA employee's two decisions were



                                         -5-
grounded in policy. The decisions are thus protected by the discretionary-function
exception.

        On a final note, Mr. Demery argues that the district court incorrectly analogized
to an Eighth Circuit case, Jurzec v. American Motors Corp., 856 F.2d 1116 (8th Cir.
1988). We disagree and we believe that Jurzec provides valuable guidance on the
bounds of the discretionary-function exception in the present context. In that case,
the United States Postal Service sold used Jeeps that it no longer needed to private
citizens accompanied by a warning that the vehicles could roll over. Id. at 1117. The
plaintiff argued that the warning was inadequate, but the court found that the decision
about the type of warning used was protected by the discretionary-function exception.
Id. at 1119. The court held that because the Postal Service had established a policy
of warning the public about the Jeep's roll-over potential, "[i]f the warning operate[d]
to serve public safety, all that remain[ed were] matters of particular language, color
and size of the warning. All these matters [were] clearly within the discretion of the
Postal Service." Id.

       In Mr. Demery's case, however, the BIA, unlike the Postal Service, had no
policy of warning the public. If the BIA had a policy similar to that of the Postal
Service, the court would look at whether the laths, berm, and signs served as a
warning to determine whether the discretionary-function exception applied. If the
BIA not only had a policy to warn, but had established a policy regarding the manner
and method of those warnings, the discretionary-function exception would not apply
because the employee would have had no discretion over the method and manner of
the warnings required. See id. at 1119-20; Mandel v. United States, 793 F.2d 964,
967 (8th Cir. 1986); Aslakson v. United States, 790 F.2d 688, 692-93 (8th Cir. 1986).
The BIA, however, had no policy to warn, adequately or otherwise. Thus, each of the
BIA's decisions (whether to warn or not and, if so, how to warn) is protected by the
discretionary-function exception because each of them is a discretionary decision
grounded in policy analysis.

                                          -6-
                                          III.
       While we are sympathetic to Mr. Demery's personal tragedy, our case law is
clear that the BIA's decisions to aerate Belcourt Lake and to erect what may have
been inadequate warnings when there was no BIA directive requiring warnings are
protected by the discretionary-function exception to the FTCA. We therefore affirm
the district court's grant of summary judgment for lack of subject matter jurisdiction.
                         ______________________________




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