 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT




Argued October 11, 2013            Decided December 13, 2013
                                    Reissued January 15, 2014

                         No. 12-5287

 DIANNE D. SLEDGE, CO-PERSONAL REPRESENTATIVE OF THE
           ESTATE OF RICO WOODLAND, ET AL.,
                     APPELLANTS

                              v.

               FEDERAL BUREAU OF PRISONS,
                       APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:06-cv-00742)


     Stephen V. Carey argued the cause for appellants. With him
on the briefs were David P. Donovan and Philip R. Seybold.

     Heather Graham-Oliver, Assistant U.S. Attorney, argued
the cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and R. Craig Lawrence and
Michelle Lo, Assistant U.S. Attorneys.
                                   2
   Before: KAVANAUGH, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.

   Opinion for the court filed by Senior Circuit Judge
RANDOLPH.

                                   I

     RANDOLPH, Senior Circuit Judge: This case arises from an
altercation between Rico Woodland, an inmate at the Federal
Correctional Institution in Allenwood, Pennsylvania, and a
fellow inmate, Jesse Sparks. At 12:37 p.m. on October 15, 2002,
Woodland and Sparks entered their cell. The two began to fight
and were initially evenly matched, but Woodland became unable
to defend himself (possibly because of an asthma attack).1
Woodland was discovered at 1:05 p.m. with severe injuries, and
was taken to a nearby hospital. He remained in a coma for
several months, suffered brain damage, lost the use of his limbs,
and eventually passed away on January 29, 2006.

     Officer Richard Sweithelm was the corrections officer
assigned to Woodland’s housing unit on the afternoon of the
assault. Officer Sweithelm assumed his post at about noon. At
12:37 p.m., just before Woodland and Sparks began their fight,
Officer Sweithelm left the housing unit, and the prison began a
“controlled movement.” Controlled movements are regular ten-
minute periods during which inmates can move from one part of
the institution to another (for example, from housing units to a
recreation facility or the dining hall). Officer Sweithelm
remained outside the housing unit throughout this controlled
movement. He smoked a cigarette, chatted with a fellow
corrections officer, and watched inmate traffic entering and



    1
        Sparks was charged with and pled guilty to the assault.
                                   3
leaving the housing unit. He did not go back inside until 12:48
p.m., after the controlled movement was complete.

     Woodland, and later his family and estate, claimed that the
government was liable for Woodland’s injuries because Officer
Sweithelm acted negligently by standing outside and failing to
monitor the interior of the housing unit during the assault. After
exhausting administrative remedies, Teresa Sledge, the personal
representative of Woodland’s estate, sued the government in the
district court.2 Invoking the Federal Tort Claims Act, 28 U.S.C.
§§ 2671-2680, Sledge argued that the government was liable for
personal injury and wrongful death under Pennsylvania law.3

     The government moved to dismiss the complaint. It argued
that Officer Sweithelm’s conduct was protected by the
discretionary function exception to the Federal Tort Claims Act,
28 U.S.C. § 2680(a), and that Sledge’s claims were therefore
outside the district court’s subject-matter jurisdiction. The
district court granted Sledge limited jurisdictional discovery
and, after a hearing, dismissed the complaint. The opinion of the
district court is reported at Sledge v. United States, 883 F. Supp.
2d 71 (D.D.C. 2012). Sledge timely appealed.




     2
       The suit was originally filed by Steven Sledge as personal
representative of Woodland’s estate. Steven Sledge passed away after
the case was filed, and the district court granted a motion to substitute
party.
     3
       The complaint also challenged Woodland’s medical treatment
after the assault. Those claims are not the subject of this appeal.
Liability under the Federal Tort Claims Act is determined “in
accordance with the law of the place where the act or omission
occurred,” 28 U.S.C. § 1346(b)(1); see id. § 2674, here, Pennsylvania.
                                 4
                                 II

     The Federal Tort Claims Act grants district courts exclusive
jurisdiction to hear certain tort claims against the United States,
including claims for “personal injury or death” based on the
“negligent or wrongful act[s] or omission[s]” of government
employees on the job. 28 U.S.C. § 1346(b)(1); see id. § 2674.
The Act’s broad jurisdictional grant is subject to exceptions. See
id. § 2680. Among those, the discretionary function exception
bars courts from hearing claims “based upon the exercise . . . or
the failure to exercise . . . a discretionary function or duty on the
part of . . . an employee of the Government, whether or not the
discretion involved [was] abused.” Id. § 2680(a).

     We have treated the exception as jurisdictional: if it applies
to the conduct of which a plaintiff complains, then “the district
court lacks subject matter jurisdiction over the case.” Sloan v.
U.S. Dep’t of Hous. & Urban Dev., 236 F.3d 756, 759 (D.C. Cir.
2001); see Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir. 1995). We
review de novo a district court’s decision whether the exception
applies. Loughlin v. United States, 393 F.3d 155, 162-63 (D.C.
Cir. 2004).

     Courts apply the exception using the two-part
Gaubert/Berkovitz test. See United States v. Gaubert, 499 U.S.
315 (1991); Berkovitz v. United States, 486 U.S. 531 (1988);
Sloan, 236 F.3d at 759-60; Cope, 45 F.3d at 448-49. First, a
court must ask whether a “statute, regulation, or policy” directs
a government employee to conduct himself in a particular way.
Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536).
If so, then the employee’s conduct is not discretionary and the
exception does not protect him. Id. at 322, 324. In that case, the
court proceeds under the first clause of 28 U.S.C. § 2680(a), and
the government is immune from suit if and only if the employee
followed the directive. Cope, 45 F.3d at 448. If a written
directive is unambiguous then oral testimony cannot contradict
                                5
it. See Shansky v. United States, 164 F.3d 688, 691-92 (1st Cir.
1999). The testimony of government officials may be used to
clarify or establish a directive. See, e.g., Macharia v. United
States, 334 F.3d 61, 65-66 (D.C. Cir. 2003).

     If there is no “statute, regulation, or policy” on point, then
the employee’s conduct is discretionary and the inquiry moves
to step two. At step two the court must decide whether that
discretion is the type “that the discretionary function exception
was designed to shield.” Gaubert, 499 U.S. at 322-23 (quoting
Berkovitz, 486 U.S. at 536). The precise contours of this test are
difficult to pin down. Cope, 45 F.3d at 448-49. The paradigmatic
example of step two in action is negligent driving by a
government employee on the job. Gaubert, 499 U.S. at 325 n.7.
Although “driving requires the constant exercise of discretion,”
negligent driving is unprotected because it “can hardly be said
to be grounded in regulatory policy.” Id. Otherwise, we are left
with the Supreme Court’s statement that conduct is protected
only if it is “based on considerations of public policy” such as
“social, economic, [or] political” concerns. Id. at 323 (internal
quotation marks omitted). In that calculus, the nature of the
conduct, rather than the subjective intent of the actor, is what
matters. The court must ask whether the challenged actions are
amenable to public policy analysis, even if the actor was not
acting out of public-policy motives. Id. at 325.
                                  6
                                 III

     Sledge argues that Officer Sweithelm violated a mandatory
directive by failing to monitor the inside of the housing unit.
That directive is contained in what prison officials refer to as a
post order. Post orders are adopted by individual correctional
institutions,4 and govern the conduct of corrections officers
while they serve at a particular post within the institution. Post
orders constitute government policy within a prison. See, e.g.,
Garza v. United States, 161 F. App’x 341, 345 (5th Cir. 2005).
The post order Sledge identifies requires all housing unit
officers to “continuously monitor inmate traffic within and
outside of the units” during controlled movements. Sledge
asserts that this post order is unambiguous in at least one
respect: whatever discretion Officer Sweithelm had, he was
required to visually inspect the interior of the housing unit
during the movement, which he altogether failed to do.
Therefore, Sledge concludes, Officer Sweithelm’s conduct is
unprotected at Gaubert/Berkovitz step one.

     Sledge’s position finds some support in the case law. Courts
have held that corrections-officer conduct is not protected when
it contravenes specific and unambiguous directives, such as
“account[] for and dispose[] of” “all razors” “at the end of the
shower,” Gray v. United States, 486 F. App’x 975, 978 (3d Cir.
2012), or “patrol the recreation yard” “[d]uring closed
movement[s],” Garza, 161 F. App’x at 344-45. But courts reach
a different conclusion when directives are phrased in more
general terms or when the terms themselves are ambiguous, such
as directives to “take disciplinary action at such times and to the


     4
       Corrections officers are also subject to directives contained in
program statements, which are adopted by the Bureau of Prisons, and
institutional supplements, which apply program statements to
particular institutions.
                                7
degree necessary to regulate an inmate’s behavior,” Calderon v.
United States, 123 F.3d 947, 949 (7th Cir. 1997) (emphasis
omitted) (citing 28 C.F.R. § 541.10(b)(2)), or “[do] not . . .
allow[ inmates] to gather in large groups,” Garza, 161 F. App’x
at 345. Those directives provide discretion about how and when
a corrections officer should act, even if they have a readily
discernable objective. See Garza, 161 F. App’x at 345-46;
Calderon, 123 F.3d at 949-50.

      Although the question is close, we think the post order to
“continuously monitor inmate traffic within . . . the unit[]” falls
into the discretionary category. Sledge argues that the order
obligated Officer Sweithelm to look inside the housing unit.
That interpretation is plausible, though not required, when the
particular phrase is read in isolation. But read in context, the
order confers discretion on Officer Sweithelm to act as he did.
It directs him to monitor the flow of inmates into and out of the
housing unit without telling him precisely how to do so or where
to stand.

     First, the order requires “continuous[]” monitoring of
inmate traffic both “within and outside of the units” (emphasis
added). Sledge’s interpretation, that “within” designates inmates
already inside the housing unit, appears to require the
impossible. A unit officer cannot continuously observe two
different locations, separated by a wall, at the same time. See
Sledge, 883 F. Supp. 2d at 85. We are not inclined to accept
Sledge’s “tortured reading” of the order. Id.

     Second, the order refers to “inmate traffic.” In the context
of controlled movements, during which inmates can move from
one area of the institution to another, “inmate traffic” likely
refers to ingress, egress, and travel between buildings, rather
than inmates moving about the interior of housing units. If the
post order required Officer Sweithelm to monitor the inside of
the housing unit, it is difficult to see why it would be confined
                                8
to monitoring “traffic.” Inmates inside a housing unit could pose
a security risk whether or not they were moving around. If the
prison wanted to adopt Sledge’s interpretation, it would make
more sense to speak of “inmates within and outside of the units”
rather than “inmate traffic.”

     Third, the remainder of the order undermines Sledge’s
interpretation. The penultimate sentence of the disputed
paragraph directs unit offers to “[m]aintain[] high visibility” in
order to “disrupt inmate chances of bringing contraband into the
unit.” That directive is not easily reconciled with Sledge’s
suggestion that Officer Sweithelm stand in the sallyport, an
approximately seven-foot-by-nine-foot room between the inner
and outer doors to the housing unit. Standing there would
minimize his visibility, according to the deposition testimony of
several prison officials.

       That same testimony generally approved of Officer
Sweithelm’s conduct and rejected Sledge’s interpretation of the
post order. Robert Womeldorf, the Operations Lieutenant,
explained that during a controlled movement “there’s no need to
monitor your inmates . . . inside your housing unit because
they’re not moving anywhere. You’re watching the inmates go
from point A to point B.” Other officials were more emphatic.
Stanley Yates, the Allenwood Warden at the time of the assault,
stated that housing offers were “directed” to “stand[] in the front
of the housing unit, . . . controlling th[e] compound,” and that to
do otherwise would have been irresponsible. “[I]f [a unit officer]
went back in and stayed in” there would be no “officer paying
attention to the flow of traffic.” To Warden Yates this would
constitute a dereliction of the officer’s duty.

     We also reject Sledge’s interpretation of the post order
because it is contrary to sound public policy and prison security.
At the very least, these considerations lead us to conclude that
the order and the discretion it conferred were grounded in public
                                9
policy. The policy problem is one of resource allocation. In a
prison with 1,300-1,400 inmates it is impossible to keep each
inmate in view at all times. During a controlled movement, 60
to 70 percent of inmates are outside, and prison officials
therefore want more eyes watching inmate movement between
buildings. By standing outside during controlled movements,
unit officers can observe any events on the compound and
respond quickly by closing the doors and securing the housing
units. Monitoring inmate flow from the outside also helps
prevent inmates from moving contraband into the housing units,
which is a stated objective of the post order. Without housing
unit officers observing inmate traffic, the large group of inmates
moving between buildings would lack substantial supervision.
We are thus persuaded that the order provided Officer
Sweithelm with discretion to act as he did.

     Sledge also argues that Officer Sweithelm violated orders
that he remain at his post when he left the housing unit and
stood several yards beyond the door. Sledge is correct that
corrections officers may not leave their posts. But the orders do
not identify the boundaries of the housing unit post, and the
record does not support Sledge’s claim that the boundaries are
the walls of the housing unit. When asked directly about the
issue, prison officials stated Officer Sweithelm’s post included
the area closely surrounding the housing unit. Relying on this
testimony, and the absence of any order directing Officer
Sweithelm to stand in a certain location, the district court
correctly found that Officer Sweithelm did not leave his post.
Sledge, 883 F. Supp. 2d at 84-85.

    As to Gaubert/Berkovitz step two, Sledge argues that the
exception does not protect Officer Sweithelm because he was
not actually exercising discretion. Instead, Sledge alleges,
Officer Sweithelm utterly neglected his duties. He stepped
outside to smoke, pace, and talk, but not to monitor inmates.
Sledge relies on other negligent guard cases. In those cases,
                                10
courts have held (or recognized the possibility in dicta) that the
discretionary function exception does not protect corrections
officers who are totally derelict of duty, for example, by packing
up personal belongings and leaving early, Chess v. United
States, 836 F. Supp. 2d 742, 751 (N.D. Ill. 2011), or by
completely failing to perform required inspections, Coulthurst
v. United States, 214 F.3d 106, 110-11 (2d Cir. 2000).

     The validity of the negligent guard theory is an open
question in this court. Even if that theory could ever allow a
plaintiff’s claim to survive the discretionary function exception,
it would not do so here. The Supreme Court stated in
Gaubert that the “focus of the inquiry [at step two] is not on the
agent’s subjective intent in exercising the discretion . . ., but on
the nature of the actions taken and on whether they are
susceptible to policy analysis.” 499 U.S. at 325. We read the
negligent guard cases in light of that statement. The problem
with packing up personal belongings while still on the clock, for
example, is not that a particular corrections officer does so for
purely personal non-policy reasons. The problem is that there
can never be a public-policy reason for doing so. Thus the
decision to pack up early is unprotected.

     Aside from subjective intent, the “nature of the actions” that
might give rise to liability in this case is that Officer Sweithelm
stood outside without looking into the housing unit. Even if
Sledge is correct that Officer Sweithelm so acted merely to
satisfy a nicotine craving, that motivation is irrelevant. The
decision to stand outside, as explained above, is “susceptible to
policy analysis.” Id. Prison officials testified to several reasons
why they would permit, or even advise, a housing unit officer to
stand outside and monitor the compound during controlled
movements. Officer Sweithelm’s conduct is therefore protected
at step two, as well as step one. See Sledge, 883 F. Supp. 2d at
86-87.
                            11
     Because the discretionary function exception denies the
district court subject-matter jurisdiction over Sledge’s
complaint, the decision of the district court is

                                                  Affirmed.
