                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                File Name: 12a0387p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                                X
                                                 -
 DEBRA R. KOHL,
                                                 -
                            Plaintiff-Appellant,
                                                 -
                                                 -
                                                     No. 11-6213
          v.
                                                 ,
                                                  >
                                                 -
                         Defendant-Appellee. -
 UNITED STATES OF AMERICA,
                                                N
                  Appeal from the United States District Court
                for the Middle District of Tennessee at Nashville.
           No. 3:09-cv-1190—Juliet E. Griffin, U.S. Magistrate Judge.
                              Argued: October 5, 2012
                      Decided and Filed: November 16, 2012
          Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

                                _________________

                                     COUNSEL
ARGUED: Brandon E. Bass, LAW OFFICES OF JOHN DAY, P.C., Brentwood,
Tennessee, for Appellant. Jeffrey E. Sandberg, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Brandon E. Bass, John A. Day,
LAW OFFICES OF JOHN DAY, P.C., Brentwood, Tennessee, for Appellant. Jeffrey
E. Sandberg, Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee.

    MOORE, J., delivered the opinion of the court in which McKEAGUE, J., joined.
MERRITT, J. (pp. 14-18), delivered a separate dissenting opinion.

                                _________________

                                     OPINION
                                _________________

       KAREN NELSON MOORE, Circuit Judge. This case arises out of the execution
of a field experiment aimed at improving the government’s technical capacity to respond



                                          1
No. 11-6213        Kohl v. United States                                           Page 2


to Improvised Explosive Devices (IEDs). Plaintiff-Appellant Debra R. Kohl (“Kohl”)
seeks recovery for injuries allegedly sustained due to negligence of a federal employee
operating a winch while collecting debris generated by the planned detonation of
explosives during this government-funded research experiment. Kohl appeals the
district court’s determination that her claims were barred by the discretionary-function
exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq.,
and that the court thus lacked subject-matter jurisdiction. Because we conclude that the
government’s decisions about how to extract evidence from the site of the explosions,
and what types of equipment to use to do so, are shielded from liability by the
discretionary-function exception, we AFFIRM the judgment of the district court.

                                  I. BACKGROUND

       On December 4, 2007, Kohl, a certified bomb technician with the Hazardous
Devices Unit of the Metropolitan Nashville Police Department (“MNPD”), participated
in a research experiment funded by the U.S. Department of Defense at the Tennessee
State Fire Academy in Bell Buckle, Bedford County, Tennessee. The experiment
involved constructing and detonating explosive devices in vehicles and then collecting
post-blast debris for laboratory analysis as forensic evidence. Kohl v. United States, No.
3–09–1190, 2011 WL 4537969, at *1 (M.D. Tenn. Sept. 29, 2011) (unpublished
opinion). This experiment was part of a larger research project conducted by scientists
working at Oak Ridge National Laboratory, managed by the University of Tennessee-
Battelle for the Department of Energy. R. 41 (Pl.’s Response to Def.’s Stmt. of
Undisputed Material Facts [hereinafter “Undisputed Material Facts”] at 1) (Page ID
#661). Explosives Enforcement Officers of the federal Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”), Jason Harrell and Alex Guerrero, assisted and
participated in the experiment.

       Following the detonation of the explosives, and after an “all-clear” was given,
participants in the project, including Kohl, entered the explosives range to inspect the
vehicles. Id. at 4 (Page ID #664). Kohl and Officer Todd Mask, another MNPD bomb
technician participating in the project, proceeded to investigate one of the vehicles, a
No. 11-6213        Kohl v. United States                                            Page 3


minivan. Id. at 4–5 (Page ID #664–65). Kohl searched the passenger’s side of the
minivan for evidence, while Mask attempted to search the driver’s side of the vehicle.
Id. at 5 (Page ID #665). However, the driver’s side door of the minivan had “buckled,”
and as a result, it would not open. R. 38-6 (Mask Dep. at 26:2–3) (Page ID #636). The
investigation team decided to try to access the inside of the van by using a winch on the
driver’s side door. R. 41 (Undisputed Material Facts at 6) (Page ID #666). After a first
failed attempt to winch the door, a second attempt was made. R. 38-5 (Kohl Dep. at
71:8–18) (Page ID #594). While other team members were preparing to winch the door
a second time, Kohl testified that she returned to the passenger’s side door of the van and
continued searching for evidence. Id. at 72:15–18 (Page ID #595). During this time,
Kohl was “leaning into the passenger side of the vehicle.” R. 1 (Compl. ¶ 10) (Page ID
#3).

       Then, although the record is not clear about exactly how Kohl came into contact
with the vehicle, Kohl testified that she remembers feeling “pain in the top of [her] head”
and that she “saw stars.” R. 38-5 (Kohl Dep. at 74:8–9) (Page ID #597). The complaint
alleges that “[d]ue to the winching, the door came loose and the door frame of the
vehicle crashed into Ms. Kohl’s head.” R. 1 (Compl. ¶ 14) (Page ID #3). After seeking
medical care the following day, Kohl was referred to a neurologist, who diagnosed her
with “post-concussive syndrome with persistent headaches and cognitive changes.”
Kohl, 2011 WL 4537969, at *2 (internal quotation marks omitted). Since the incident,
Kohl has not been employed. Id.

       Kohl filed this action on December 16, 2009 in the U.S. District Court for the
Middle District of Tennessee under the FTCA, 28 U.S.C. §§ 1346(b), 2671–2680,
seeking damages. R. 1 (Compl. ¶ 3) (Page ID #1). The complaint alleges that federal
employees were negligent in “operat[ing] the winch in an unsafe manner,” “fail[ing] to
warn Plaintiff of dangers regarding the winch,” “conduct[ing] the operation, including
winching of the vehicle, without proper safety protocols,” and by “fail[ing] to use
reasonable and due care to prevent injury to Plaintiff.” Id. ¶ 19 (Page ID #4). Defendant
United States filed a motion to dismiss or, alternatively, for summary judgment on
No. 11-6213             Kohl v. United States                                                        Page 4


January 7, 2011, in part on the basis that the district court lacked subject-matter
jurisdiction. R. 34 (Def.’s Mot. to Dismiss at 1) (Page ID #140). Finding that the
conduct at issue in this case falls within the discretionary-function exception to the
FTCA, the district court dismissed Kohl’s claims for lack of subject-matter jurisdiction.
Kohl, 2011 WL 4537969, at *9. Kohl timely filed an appeal on October 5, 2011. R. 72
(Notice of Appeal) (Page ID #1282).

                                            II. ANALYSIS

A. Discretionary-Function Exception: Legal Framework

         At issue is whether the district court erred in finding that it lacked subject-matter
jurisdiction over Kohl’s claims. We review de novo a district court’s dismissal based
on the application of the discretionary-function exception to the FTCA.1 Rich v. United
States, 119 F.3d 447, 449 (6th Cir. 1997); Rosebush v. United States, 119 F.3d 438, 440
(6th Cir. 1997).

         Sovereign immunity generally bars claims against the United States without its
consent. See Montez ex rel. Estate of Hearlson v. United States, 359 F.3d 392, 395 (6th
Cir. 2004) (citing United States v. Orleans, 425 U.S. 807, 814 (1976)). Congress,
through the FTCA, waived this governmental immunity for claims brought

         for injury or loss of property, or personal injury or death caused by the
         negligent or wrongful act 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 in accordance with the law of the place where
         the act or omission occurred.

28 U.S.C. § 1346(b)(1). The FTCA’s waiver of immunity is limited, and contains a
series of exceptions. Id. § 2680. One of these exceptions—known as the discretionary-


         1
           Although there is some confusion over whether Defendant United States is making a facial or
factual attack on jurisdiction under Rule 12(b)(1), see Kohl, 2011 WL 4537969, at *3, “[a]s the district
court made essentially no factual findings in deciding it . . . lacked jurisdiction, we will treat this as a
‘facial’ 12(b)(1) motion.” DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). In a facial attack on
jurisdiction, all allegations of the plaintiff must be accepted as true. See Abbott v. Michigan, 474 F.3d 324,
328 (6th Cir. 2007).
No. 11-6213         Kohl v. United States                                            Page 5


function exception—states that the FTCA’s waiver does not apply to “[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.” Id. § 2680(a). If a
claim falls within this exception, then federal courts lack subject-matter jurisdiction, and
the claim must be dismissed. See Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.
1984). This appeal concerns whether the conduct at issue in Kohl’s claims falls within
the discretionary-function exception.

        Determining whether a claim falls within the discretionary-function exception
involves a two-step test. See United States v. Gaubert, 499 U.S. 315, 322–23 (1991);
Rosebush, 119 F.3d at 441. The first step “requires a determination of whether the
challenged act or omission violated a mandatory regulation or policy that allowed no
judgment or choice.” Rosebush, 119 F.3d at 441 (citing Gaubert, 499 U.S. at 322–23).
If there was such a violation of a mandatory regulation or policy, then the discretionary-
function exception will not apply, because “there was no element of judgment or
choice,” id., and thus “the employee has no rightful option but to adhere to the
directive.” Berkovitz v. United States, 486 U.S. 531, 536 (1988).

        If, on the other hand, there was room for judgment or choice in the decision
made, then the challenged conduct was discretionary. See Rosebush, 119 F.3d at 441.
In such a case, the second step of the test requires a court to evaluate “whether the
conduct is ‘of the kind that the discretionary function exception was designed to shield’”
from liability. Id. (quoting Gaubert, 499 U.S. at 322–23). The discretionary-function
exception is meant “to prevent judicial ‘second-guessing’ of . . . administrative decisions
grounded in social, economic, and political policy through the medium of an action in
tort.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 814 (1984).

        The discretionary-function exception’s scope extends beyond high-level
policymakers, and includes government employees at any rank exercising discretion.
Id. at 813 (“[I]t is the nature of the conduct, rather than the status of the actor, that
No. 11-6213         Kohl v. United States                                            Page 6


governs whether the discretionary function exception applies in a given case.”). “A
discretionary act is one that involves choice or judgment; there is nothing in that
description that refers exclusively to policymaking or planning functions.” Gaubert, 499
U.S. at 325. Even where government action is taken on the day-to-day operational level,
and implements broader governmental objectives, if that action involves choice or
judgment that is “susceptible to policy analysis,” then it falls within the discretionary-
function exception.     Id.   “We also consider the fact that ‘[w]hen 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.’” Sharp ex rel.
Estate of Sharp v. United States, 401 F.3d 440, 443 (6th Cir. 2005) (quoting Gaubert,
499 U.S. at 324).

B. Application to Kohl’s Case

        In determining whether Kohl’s claims fall within the discretionary-function
exception, “the crucial first step is to determine exactly what conduct is at issue.”
Rosebush, 119 F.3d at 441. The parties disagree about how to characterize appropriately
the conduct. Kohl argues that the relevant conduct is “use of a winch on a large minivan
while people are working in and around the minivan, and whether the Government
employee sufficiently alerted those people before doing so.” Appellant Br. at 21–22; see
id. at 22 (“Plaintiff’s claim is for operator error in using machinery.”). Kohl’s theory is
that the context of the use of the winch is irrelevant to the analysis of the discretionary-
function exception. Using this narrow characterization of the conduct at issue, Kohl
goes on to argue that the ministerial act of using a winch does not involve policy-related
judgments, and thus is not shielded from liability by the discretionary-function
exception. See id. at 22–23. The Government, on the other hand, emphasizes the
context in which the alleged injury occurred: a field experiment which recreated a bomb
scene and required trained bomb technicians to recover evidence from the scene. Using
this broad characterization, the Government argues that the decisions related to how best
to conduct the experiment did involve policy-related judgments and thus are shielded
No. 11-6213        Kohl v. United States                                            Page 7


from liability. See Appellee Br. at 22–23. The Government’s theory appears to be
tantamount to a contention that every decision, “[a]t every level,” in the context of the
post-blast investigation would be shielded from liability. Appellee Br. at 25–26. Each
of these views is too extreme.

       Kohl’s narrow characterization must be rejected, because it “collapses the
discretionary function inquiry into a question of whether the [government] was
negligent.” Rosebush, 119 F.3d at 442. “Negligence, however, is irrelevant to our
inquiry at this point.” Id. We rejected a similarly narrow approach in Rosebush, which
involved a child who was severely burned when she fell into a fire pit on a campground
site maintained by the United States Forest Service. Plaintiff argued that the Forest
Service was negligent in “fail[ing] to make the fire pit safe for unsupervised toddlers,
and to warn of the dangers of the fire pit.” Id. at 441. The Rosebush court held that this
characterization was too narrow, and that instead, the conduct at issue was the
maintenance of the Forest Service’s campsites and fire pits. See id. at 442. Similarly,
in Bell v. United States, a panel of this court in an unpublished opinion rejected a narrow
characterization of the conduct at issue for purposes of analysis under the discretionary-
function exception. See 238 F.3d 419, 2000 WL 1720932, at *3–4 (6th Cir. Nov. 6,
2000). Bell involved a slip and fall due to a wet floor of a lobby of a post office
building, which was open to the public even during hours when the Post Office itself was
closed and unstaffed. Bell, 2000 WL 1720932, at *1. Suing the United States under the
FTCA to recover for her injuries, the plaintiff argued that the relevant conduct was the
“Post Office’s lack of efforts to maintain the premises in a reasonably safe manner.” Id.
at *3. Again, we concluded that this formulation was too narrow, instead holding that
“the conduct at issue here is the [] postmaster’s conduct in deciding under what
circumstances to allow the lobby area to remain open to the public at times when the
service windows were closed.” Id. at *4; see also Merando v. United States, 517 F.3d
160, 168 (3d Cir. 2008) (rejecting a narrow framing of the conduct at issue as whether
the government had discretion “not to find and remove the hazardous tree,” instead
concluding that the “relevant issue” was whether the government “had discretion in
formulating and executing [the hazardous tree management] plan”); Autery v. United
No. 11-6213         Kohl v. United States                                            Page 8


States, 992 F.2d 1523, 1527–28 (11th Cir. 1993) (rejecting plaintiff’s contention that the
relevant conduct was the allegedly negligent manner in which the park’s employees
carried out a plan to remove hazardous trees, instead concluding that the relevant issue
was “[w]hether park personnel had discretion in executing that plan”).

        Kohl’s formulation of the conduct at issue is inappropriate for the same reason:
by framing the question as whether the ATF employee operated the winch in a safe
manner, Kohl “begs the question.” Autery, 992 F.2d at 1528. To characterize the issue
as whether the ATF employees had discretion to operate the winch in an unsafe manner
is to ask whether the employees had discretion to be negligent. As we stated in
Rosebush, negligence is irrelevant at this stage of the inquiry. Rosebush, 119 F.3d at
442. The issues of whether the ATF employee who operated the winch was negligent,
and whether the safety precautions taken were reasonable, are separate inquiries from
the analysis of the discretionary-function exception. “It is the governing administrative
policy,” rather than the negligence of a particular employee, “that determines whether
certain conduct is mandatory for purposes of the discretionary function exception.”
Autery, 992 F.2d at 1528. Thus, the conduct at issue must be framed in terms of the
scope of administrative authority to use discretion in executing the research experiment.
More properly formulated, the conduct at issue is “the recovery of forensic evidence and
the necessary actions taken to facilitate that recovery, including actions taken to dislodge
the door of the minivan so that evidence could be recovered.” Kohl, 2011 WL 4537969,
at *7. Our analysis thus focuses on whether ATF’s actions in collecting the forensic
evidence from the field test, including decisions about what equipment to use, are
protected by the discretionary-function exception.

        Regarding the first step of the discretionary-function-exception test, neither party
in this case argues that there was a mandatory policy or regulation at issue. See
Appellant Br. at 17 (“It is undisputed that there was no mandatory regulation or policy
governing the federal employees’ conduct in this case[.]”); Appellee Br. at 19. Because
there was no specific regulation or policy governing the post-blast investigation, the
No. 11-6213            Kohl v. United States                                                        Page 9


challenged government conduct involved discretion.2 See Berkovitz, 486 U.S. at 536.
Thus, the district court properly concluded that the “relevant inquiry” is at the second
step of the two-part discretionary-function-exception test. Kohl, 2011 WL 4537969, at
*6.

         The second step of the test requires a determination of whether the conduct is
“‘of the kind that the discretionary function exception was designed to shield’” from
governmental liability. Gaubert, 499 U.S. at 322–23 (quoting Berkovitz, 486 U.S. at
536). It is important to note that framing the conduct more broadly, as we have done,
does not imply that every action taken in connection with a government program will be
brought under the umbrella of the broader policy-related judgments involved in the
program. See Bultema v. United States, 359 F.3d 379, 383 (6th Cir. 2004) (explaining
that an “act does not necessarily amount to an exercise of a discretionary function merely
because carrying out the general policy provided the opportunity for the negligent act”).
Although difficult to draw, there is a line between conduct “of the kind that the
discretionary function exception was designed to shield,” Berkovitz, 486 U.S. at 536, and
the sorts of run-of-the-mill torts, which, while tangentially related to some government
program, are not sufficiently “grounded in regulatory policy” so as to be shielded from
liability. Gaubert, 499 U.S. at 325 n.7; see also Totten v. United States, 806 F.2d 698,
700 (6th Cir. 1986) (explaining that Congress, in the discretionary-function exception,
“was drawing a distinction between torts committed in the course of such routine
activities as the operation of a motor vehicle and those associated with activities of a
more obviously governmental nature”). Where an act “cannot be said to be based on the
purposes that the regulatory regime seeks to accomplish,” the discretionary-function
exception will not apply. Gaubert, 499 U.S. at 325 n.7. The Gaubert Court used
negligent driving by a government actor on government business as an example of


         2
           Kohl appears to argue in her brief that because there was no formal or written policy addressing
the conduct at issue, the discretionary-function exception cannot apply. See Appellant Br. at 23–26. This
argument makes little sense. The governing precedents do not imply that government conduct can be
discretionary only if it is taken pursuant to a written directive of some sort. Rather, the existence of such
a formal statute, regulation, or policy prescribing a course of action means that the discretionary-function
exception will not apply. See Berkovitz, 486 U.S. at 536. Indeed, it is more likely that government agents
are exercising discretion if they are conducting an experiment that is not governed by a written manual or
regulation, because such decisions will involve “an element of judgment or choice.” Id.
No. 11-6213         Kohl v. United States                                           Page 10


conduct that would not be shielded by the discretionary-function exception. Id. Driving
a car, while it “requires the constant exercise of discretion,” is not sufficiently connected
to regulatory policy to fall within the discretionary-function exception. Id.

        The key question in this appeal is whether the conduct at issue here was
sufficiently based on the purposes that the regulatory regime—here the research
experiment—sought to accomplish. See id. Although this is a close case, we conclude
that the answer to this question is yes. The decision to use a winch was part of the
decisionmaking involved in deciding how best to conduct the post-blast investigation.
Cf. Konizeski v. Livermore Labs (In re Consol. U.S. Atmospheric Testing Litig.),
820 F.2d 982, 993–95 (9th Cir. 1987) (finding that claims of negligence for failure to
maintain sufficient safety precautions during “inherently dangerous” field testing of
nuclear weapons were barred by the discretionary-function exception); Creek Nation
Indian Hous. v. United States, 677 F. Supp. 1120, 1124–26 (E.D. Okla. 1988) (finding,
in a case involving an explosion of bombs being transported by a commercial carrier,
that the discretionary-function exception barred negligence claims against the United
States for alleged failure to take adequate safety precautions regarding transportation of
explosives).

        The planning and execution of the research experiment is susceptible to policy
analysis, including judgments about how to respond to hazards, what level of safety
precautions to take, and how best to execute the experiment in a way that balanced the
safety needs of the personnel and the need to gather evidence from the vehicles. See
Rosebush, 119 F.3d at 444 (explaining that even if there is no indication “that policy
concerns were the basis of a challenged decision, the discretionary function exception
applies if the decision is susceptible to policy analysis”) (citing Myslakowski v. United
States, 806 F.2d 94, 97 (6th Cir. 1986)). Decisions about how to execute the experiment
include judgments as to what kinds of equipment to use to extract the evidence for
forensic laboratory analysis. These equipment-related decisions were “intimately
related” to the execution of the field experiment—in other words, judgments as to how
to extract the evidence from the vehicles after the bombs were detonated, including what
No. 11-6213            Kohl v. United States                                                    Page 11


equipment to use, were necessary to the execution of the project. See Graves v. United
States, 872 F.2d 133, 137 (6th Cir. 1989). Thus, a challenge to the use of a particular
piece of equipment, i.e., the winch, would amount to a challenge as to the overall
execution of the research project. See Bultema, 359 F.3d at 383.3 The conduct at issue
is thus unlike the Gaubert Court’s example of driving a car in connection with a
government mission; the ATF employee’s use of the winch was sufficiently related to
the purposes that the post-blast investigation sought to accomplish to fall within the
discretionary-function exception.

         We have previously concluded that in executing a government program, the
government’s decisions as to what equipment to use and how to use that equipment fall
under the discretionary-function exception, absent governing standards or directives.
See Totten, 806 F.2d at 701 (holding that decisions regarding the kinds of equipment
used and the manner in which fuel was removed following a missile-test failure were
shielded by the discretionary-function exception); see also Flynn v. United States, 902
F.2d 1524, 1530–31 (10th Cir. 1990) (holding that the discretionary-function exception
barred claims against National Park Service employees for negligent operation of
emergency lights on emergency vehicles because there were “no fixed standards for
training or use of emergency vehicles”).

         Further, Kohl’s contention that the conduct falls outside the exception because
it involved “machine operator error” is of no avail. Appellant Reply Br. at 5. The
Supreme Court’s discretionary-function-exception cases have made clear that the fact
that the decisionmaking involved occurred on an operational level does not affect the
analysis. See Gaubert, 499 U.S. at 325; Varig Airlines, 467 U.S. at 820. The
discretionary-function exception protects both high-level policymakers and the


         3
          In Bultema, we stated that an action which is not a “necessary concomitant” of a broader
discretionary policy would not fall within the discretionary-function exception. Bultema, 359 F.3d at 383.
At oral argument, Kohl relied on this statement and argued that because the use of the winch was not a
necessary concomitant of the broader discretionary decisions about how to run the experiment, any
negligence in using the winch would not be shielded from liability. As explained above, we do not agree
that the decision to use the winch was tangential. Given that a main part of the experiment involved
recovering evidence from the explosives range for later laboratory analysis, decisions about what
equipment to use to extract the evidence were a necessary part of the decisions involved in how to execute
the experiment.
No. 11-6213             Kohl v. United States                                                       Page 12


employees who implement broader governmental objectives. In Varig Airlines, the
Court held that the discretionary-function exception shielded not only the federal
government’s broad decision to implement a “spot-check” system for ensuring
compliance of airplanes with FAA regulations, but also “the acts of FAA employees in
executing” the program. Varig Airlines, 467 U.S. at 820. Similarly, in Gaubert, the
plaintiffs argued that some of the government’s actions fell outside the discretionary-
function exception because “they involved the mere application of technical skills and
business expertise” to the supervision of a savings-and-loan association. Gaubert, 499
U.S. at 331. The Court rejected this proposition, holding that operational, day-to-day
decisions can fall within the discretionary-function exception.4 Id. at 331–32. These
cases make clear that the discretionary-function exception protects decisions at the
operational level, including choices like the one ATF employee Guerrero made in this
case about when to use a winch. Because ATF employees had discretion to decide how
best to conduct the field test, including which equipment to use, the decision to use a
specific piece of equipment in this particular situation, i.e., to use a winch to open the
door of the minivan, also falls within the government’s discretionary decisions. This is


         4
           The dissent, citing the Supreme Court’s decision in Indian Towing Co. v. United States, 350 U.S.
61 (1955), concludes instead that “once the government makes a protected policy, every implementing step
like conducting an experiment or repairing damaged equipment must proceed with ‘due care’ in carrying
out its decision.” See Dissent Opn. at 14. First, we note that the discretionary-function exception was not
at issue in Indian Towing, because the government in that case conceded it was not applicable. See 350
U.S. at 64. This appears to have been because the allegedly negligent acts occurred at the operational
level, which, under early Supreme Court precedent, were not within the scope of the discretionary-function
exception. See Harrell v. United States, 443 F.3d 1231, 1237 (10th Cir. 2006). Thus, the Court’s
statements about the government’s duty to maintain the lighthouse related to “hornbook tort law,” not
discretionary-function-exception analysis. See 350 U.S. at 64. Even if we read the government’s
concession in Indian Towing as an indication that the conduct at issue did not involve discretion, but rather
only a “ministerial” act, we do not think that the case’s holding that the government may be sued for
negligence involving the ministerial act of “maintaining a physical object in good working order”
necessitates a different result than we reach here. See Alfrey v. United States, 276 F.3d 557, 567 (9th Cir.
2002). Second, several courts of appeals have explained that Indian Towing, decided in 1955, is “simply
not persuasive authority in the context of the discretionary function exception” given subsequent Supreme
Court decisions. Harrell, 443 F.3d at 1237; see, e.g., Thames Shipyard & Repair Co. v. United States, 350
F.3d 247, 255 (1st Cir. 2003); Ochran v. United States, 117 F.3d 495, 505 (11th Cir. 1997); Baum v.
United States, 986 F.2d 716, 723 (4th Cir. 1993).
          The dissent further relies on Downs v. United States, 522 F.2d 990 (6th Cir. 1975), stating that
“[t]he relevant question [i]s whether the agents’ activities entailed ‘the formulation of governmental policy,
whatever the rank of those so engaged.’” Dissent Opn. at 18 (quoting Downs, 522 F.2d at 997). But the
Supreme Court has explained that the discretionary-function exception applies not only to policy
formulation, but also to the implementation of such policies, when discretion is involved in such
implementation. See Gaubert, 499 U.S. at 325–26; Varig Airlines, 467 U.S. at 820. Regardless of the
wisdom of the dissent’s focus on redistributing the cost of accidents, its analysis is not in accord with
current precedents regarding the discretionary-function exception.
No. 11-6213        Kohl v. United States                                         Page 13


so even if Guerrero was negligent in using the equipment—the discretionary-function
exception protects even abuses of discretion. 28 U.S.C. § 2680(a) (stating that the FTCA
does not apply to claims based on discretionary functions, “whether or not the discretion
involved [was] abused”). Kohl’s claims against the United States for negligence during
the research experiment are thus barred by the discretionary-function exception.

                                 III. CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court
dismissing Kohl’s claims for lack of subject-matter jurisdiction.
No. 11-6213           Kohl v. United States                                                    Page 14


                                       _________________

                                             DISSENT
                                       _________________

         MERRITT, Circuit Judge, dissenting. It seems to me that a private person acting
as agent of a company, who is trying to open the door of a car with a regular winch with
a strong spring, would normally be subject to standard tort principles in case of injury.
Instead, my colleagues simply say there can be no such liability, despite the statutory
language,1 if the conduct “involves choice or judgment” because — for some unstated
reason — liability for such a choice “amount[s] to a challenge as to the overall execution
of the research project.” (Opn., p. 11.) Why? The problem with formulating a standard
or principle this way is that almost every act by government or private agent in the scope
of employment would “challenge a policy” if it is for the purpose of carrying out some
government or private interest, policy or plan.

                                                   I.

         The court’s theory is incoherent and directly contrary to the early case of Indian
Towing Co. v. United States, 350 U.S. 61 (1955), decided not long after the Federal Tort
Claims Act was enacted. In the Indian Towing case the Court concluded that once the
government makes a protected policy, every implementing step like conducting an
experiment or repairing damaged equipment must proceed with “due care” in carrying
out its decision. In Indian Towing the government set up a lighthouse service. The
government agent did not “repair” the light properly:

         The Coast Guard need not undertake the lighthouse service. But once it
         exercised its discretion to operate a light on Chandeleur Island and
         engendered reliance on the guidance afforded by the light, it was
         obligated to use due care to make certain that the light was kept in
         working order . . . and to repair the light or give warning that it was not
         functioning.


         1
           The statute is intended to waive immunity “where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1).
No. 11-6213        Kohl v. United States                                         Page 15


350 U.S. at 69 (Emphasis added). Likewise, once the government decided to carry out
the hazardous IED experiment “it was obligated to use due care.” The firearms agent
using the winch did not have to ponder the nature of a policy. No considerations of
social policy would come to mind in getting the door opened. The question should be
the regular tort question for “private” persons in the economy: did the agent use due
care?

        Otherwise, there are severe distributional consequences for the entire society.
The costs of torts by government agents are distributed only to private individuals. Here
the plaintiff is permanently disabled by alleged government error. The government
distributes income to the private companies that manufacture the IED’s, the car and the
winch. But the plaintiff’s injuries somehow become a “challenge to government policy”
and cannot be compensated.

                                           II.

        The nature of the conduct here is perfectly clear: a federal agent attempted to
remove a door from a minivan with a winch in order to obtain evidence from within. We
need not assess the broader context of the experiment to reach this simple understanding.
Of course, the baseline definition of the conduct should not assume negligence before
trial — at least not anymore than it should assume that the conduct involved policy
judgment. But I fail to see how a simple description of the agent’s action conflates
discretionary-function analysis with negligence, as the majority believes it does.

        Having defined the conduct, its context becomes relevant to the legal standard
we must apply: Whether the government agent’s decision was “grounded in social,
economic, [or] political policy.” United States v. Gaubert, 499 U.S. 315, 323 (1991).
To make this determination, we typically must discern the legal authority for an agent’s
action. Even where there is no explicit constraint on an agent’s action — and here there
is not — discretion is guided by some sort of governmental pronouncement. An agent
acquires immunity for the government not simply by making a choice — she acquires
it by making a choice that substantively constitutes the policy behind a statute,
No. 11-6213         Kohl v. United States                                          Page 16


regulation, or agency guidance. See id. at 325 (holding that the discretionary function
exception only protects actions “grounded in the policy of the regulatory regime”).

        In this case, the Government has been quite sketchy about the authority or
purpose of the IED experiment at issue. Without an adequate explanation of the
authority for the experiment — which appears not to have been disclosed before the
district court granted the motion to dismiss — it is clear that the agent’s decision was not
grounded in any policy that the government or my colleagues can articulate. Even if we
assume some sort of agency guidance and interpret the exercise in the way most
favorable to the Government — as a training mission to recover evidence — I fail to see
how the decision to winch the door off the van required any sort of policy judgment.

        At root, policy judgment requires a balancing of interests. See Myers v. United
States, 17 F.3d 890, 898 (6th Cir. 1994) (“Th[e] balancing of interests . . . characterizes
the type of discretion that the discretionary function exception was intended to protect.”).
Of course, balancing is a necessary element of discretion. The majority believes that the
agent’s decision to use a winch was susceptible to policy analysis because it required
him to “execute the experiment in a way that balanced the safety needs of the personnel
and the need to gather evidence from the vehicles.” (Opn., p. 12.) This sort of balancing
is a meaningless way to identify policy analysis. Had the agent crashed his car while
speeding to the scene of the exploded van, he would have tacitly been balancing the
safety of his passengers against the need to reach the subject of the experiment. Yet
crashing a car is not behavior from which the government can claim immunity. The
relevant question is not whether the government actor engaged in some sort of balancing,
but whether judicial interference with the actor’s balancing would “seriously handicap
efficient government operations.” United States v. Varig Airlines, 467 U.S. 797, 814
(1984) (quoting United States v. Muniz, 374 U.S. 150, 163 (1963)).

        Complex balancing pursuant to stated regulatory authority has characterized the
situations in which courts apply the discretionary function exception. In United States
v. Varig Airlines, for example, the Federal Aviation Administration conducted this sort
of balancing when determining how best to carry out regulations requiring it to inspect
No. 11-6213        Kohl v. United States                                          Page 17


aircraft. Varig Airlines, 467 U.S. at 814-20. As a result, the government’s ultimate
decision to approve a defective airplane was grounded in policy and subject to the
discretionary function exception. Similarly, a series of this circuit’s cases have held the
government immune from suit for failing to maintain public roads and grounds,
reasoning that maintenance decisions require government actors to make multi-factor
calculations about how to manage finite resources. See Edwards v. TVA, 255 F.3d 318,
324-25 (6th Cir. 2001) (TVA must balance financial, aesthetic, environmental, and
safety concerns when determining how to maintain area around dam); Rich v. United
States, 119 F.3d 447, 451 (6th Cir. 1997) (Army Corps of Engineer’s decision about how
to maintain road is “at bottom a question of how best to allocate resources”); Rosebush
v. United States, 119 F.3d 438, 444 (6th Cir. 1997) (maintenance of campsite requires
“balancing the needs of the campground users, the effectiveness of various types of
warnings, aesthetic concerns, financial considerations, and the impact on the
environment, as well as other considerations”).

       By contrast, no complex balancing was required in this case. The challenge
facing the agent was how to get the door off the van to recover evidence. The
Government points to no statute, regulation, or agency guidance granting the agent
discretion to choose among a number of methods to achieve this task. Assuming that the
agent had authority to remove the door, the ultimate decision to use the winch required
no calculus as to the best use of government resources or the cost of proceeding
otherwise. Indeed, there is no evidence that the agent had any tool but the winch
available, or that he did anything other than grab the instrument nearest at hand. The
decisional process the agent employed is not the sort of judgment characteristic of social,
economic, or political policy.

       The discretionary function exception has not always been so muddled as the
majority makes it today. In Downs v. United States, 522 F.2d 990 (6th Cir. 1975), this
Court considered the FBI’s botched rescue from an airplane highjacking. Alerted that
the plane had landed but was in need of fuel, agents refused to provide the fuel and
attempted to shoot out the plane’s tires and engines. In the course of this action, the
No. 11-6213        Kohl v. United States                                         Page 18


highjacker shot and killed the passengers. We held that the discretionary function
exception did not apply in a subsequent negligence suit against the government. The
relevant question was whether the agents’ activities entailed “the formulation of
governmental policy, whatever the rank of those so engaged.” Downs, 522 F.2d at 997.
We concluded that the answer was no, and supported this conclusion with the reasoning
that “[t]he need for compensation to citizens injured by the torts of government
employees outweighs whatever slight effect vicarious government liability might have
on law enforcement efforts.” Id. at 998. In other words, the lawsuit did not substantially
interfere with the FBI’s highjacking policy.

       The law has not changed since Downs. We are still required to assess whether
the decision of a government actor is grounded in social, economic, or political policy;
and the motivation for this inquiry is still to prevent “judicial second-guessing” of such
policies. Gaubert, 499 U.S. at 323. Yet somehow our jurisprudence has come
unmoored from these principles. We now seem inclined to redistribute the costs of
accidents created by government to private individuals who are much less capable of
shouldering the burden. Because the agent’s decision to use a winch required no policy
judgment, and because the plaintiff’s suit would in no way interfere with government
operations, I respectfully dissent.
