                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-1997

Gotha v. United States
Precedential or Non-Precedential:

Docket 96-7442




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Recommended Citation
"Gotha v. United States" (1997). 1997 Decisions. Paper 112.
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Filed May 28, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7442

SHEILA GOTHA,
Appellant

v.

UNITED STATES OF AMERICA,
Appellee

APPEAL FROM THE
DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
(D.C. Civ. No. 95-cv-00002)

Argued April 7, 1997

Before: BECKER, ROTH and WEIS, Circuit Judges

Filed May 28, 1997

Diane M. Russell, Esquire (ARGUED)
Holt & Russell
2132 Company Street, Suite 2
Christiansted, St. Croix
U.S.A. Virgin Islands 00820

Counsel for Appellant
Frank W. Hunger, Esquire
Assistant Attorney General
Robert S. Greenspan, Esquire
Steve Frank, Esquire (ARGUED)
United States Department of Justice
Civil Division, Appellate Staff
10th & Pennsylvania Avenue, NW
Washington, D.C. 20530-0001

James A. Hurd, Jr., Esquire
United States Attorney
Michael A. Humphreys, Esquire
Office of United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
U.S.A. Virgin Islands 00820

Counsel for Appellee

OPINION OF THE COURT

WEIS, Circuit Judge.

In this appeal we conclude that the United States Navy's
failure to provide routine safeguards on a footpath leading
to a structure under its control does not implicate the
discretionary function exception to the Federal Tort Claims
Act. See 28 U.S.C. § 2680(a). Therefore, the claim of
personal injury based on the plaintiff's fall on the path
satisfies the jurisdictional facet of the Act and the judgment
dismissing the complaint will be reversed.

At the time of the accident, plaintiff, Sheila Gotha, was
an employee of the Martin-Marietta Company, which was
performing work for the Navy at the land base of the
Underwater Tracking Range located on St. Croix, Virgin
Islands. The facility consists of upper and lower sites
separated by a public road.

On February 20, 1994, at approximately 5:00 a.m.,
plaintiff was walking from the upper portion of the facility
to the lower sector to deliver material to an office trailer.

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She and a co-employee took the unpaved path that led
directly to the trailer. The path was approximately fifteen to
twenty feet in length and dropped downward at an angle of
approximately fifty-four degrees. There was no lighting in
the area, and as plaintiff descended the path in the
darkness, she fell and injured her ankle.

Plaintiff sued the United States under the Federal Tort
Claims Act, 28 U.S.C. §§ 2671-80, alleging negligence on
the part of the government in failing to provide a safe
access to the trailer. Specifically, her complaint alleged that
the government was negligent in failing to provide a
stairway with handrails and for neglecting to provide
sufficient lighting at the scene. The district court, however,
dismissed the action based on lack of subject-matter
jurisdiction, concluding that the government was protected
by sovereign immunity because the conduct alleged came
within the discretionary function exception to liability
under the Federal Tort Claims Act, 28 U.S.C. § 2680(a).

Based on testimony of Navy personnel, the court rejected
the government's first defense of delegation of responsibility
to Martin-Marietta for the condition of the premises. After
analyzing the discretionary function exception, the court
decided that no statute or regulation mandated the Navy to
make the repairs or undertake the construction measures
that plaintiff alleged were necessary.

The court, however, determined that the exception
applied because the Navy had based its decision not to
improve the path on "a complex set of policy imperatives."
These factors included "the effect of any construction on
existing military hardware," as well as "budgetary
constraints and safety concerns." In conclusion, the court
stated: "A policy decision was made concerning the
installation of steps on the [Underwater Tracking Range]
premises and that decision is protected by the discretionary
function exception."

I.

The government's motion to dismiss was based on
Federal Rule of Civil Procedure 12(b)(1), lack of subject-
matter jurisdiction. Because the Navy's motion was not

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merely a facial challenge to the district court's jurisdiction,
the court was not confined to allegations in the plaintiff's
complaint, but could consider affidavits, depositions, and
testimony to resolve factual issues bearing on jurisdiction.
See Mortensen v. First Fed. Sav. & Loan Ass'n., 549 F.2d
884, 891-92 (3d Cir. 1977) (because a trial court's very
power to hear a case is at issue in a factual 12(b)(1) motion,
a court is free to weigh evidence beyond the plaintiff's
allegations). We exercise plenary review over the
applicability of the discretionary function exception. Fisher
Bros. Sales, Inc. v. United States, 46 F.3d 279, 282 (3d Cir.
1995) (en banc).

II.

The Federal Torts Claims Act is a partial abrogation of
the federal government's sovereign immunity that permits
suits for torts against the United States. The Act, however,
imposes a significant limitation by providing that no
liability may be asserted for a 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).

The statute does not define "discretionary function or
duty" and these terms have led to extensive litigation over
the scope of the government's liability to tort claimants. It
is clear that if the word "discretionary" is given a broad
construction, it could almost completely nullify the goal of
the Act. United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)
(exception "marks the boundary between Congress'
willingness to impose tort liability upon the United States
and its desire to protect certain governmental activities
from exposure to suit by private individuals.").

The statutory language does not apply to every situation
in which there is an actual option to choose between
courses of action or inaction. Rather, as the Supreme Court
has stated, the discretion that is immunized from "second-
guessing" in the tort suit context applies to "legislative and
administrative decisions grounded in social, economic, and
political policy." Id. at 814.

                    4
In Berkovitz v. United States, 486 U.S. 531, 537 (1988),
the Court explained: "The exception, properly construed . . .
protects only governmental actions and decisions based on
consideration of public policy." The reason for "fashioning
an exception for discretionary governmental functions" was
to "protect the government from liability that would
seriously handicap efficient government operations." Varig
Airlines, 467 U.S. at 814.

In Berkovitz, the Court adopted a two-stage inquiry: First,
a court must consider if "a federal statute, regulation or
policy specifically prescribes a course of action for an
employee to follow." 486 U.S. at 536. If so, "the employee
has no rightful option but to adhere to the directive." Id.
Consequently, there can be no lawful discretionary act.

If circumstances imposing compulsion do not exist, a
court must then consider whether the challenged action or
inaction "is of the kind that the discretionary function
exception was designed to shield." Berkovitz, 486 U.S. at
536. Again, the Court emphasized that the "discretionary
function exception insulates the Government from liability
if the action . . . involves the permissible exercise of policy
judgment." Id. at 537.

In United States v. Gaubert, 499 U.S. 315, 325 (1991),
the Court explained that for a plaintiff's claim to survive,
the challenged actions cannot "be grounded in the policy of
the regulatory regime." The Court stressed that the "focus
of the inquiry is not on the agent's subjective intent in
exercising the discretion conferred by statute or regulation,
but on the nature of the actions taken and on whether they
are susceptible to policy analysis." Id.

Gaubert noted another limitation on the exception, citing
the hypothetical situation where an agency employee
negligently drives an automobile in the course of his
employment. Such action, although within the scope of
employment, "cannot be said to be based on the purposes
that the regulatory regime seeks to accomplish." 499 U.S.
at 325 n.7.

An examination of some of the situations where the
discretionary function exception was applied may be helpful
in understanding its scope. A federal agency decision to use

                     5
a spot-checking process in inspecting aircraft was an
exercise of policy discretion. Varig Airlines, 467 U.S. at 814-
16. The supervision of day-to-day activities of a failing thrift
institution was based on the public policy considerations of
protecting the federal savings and loan insurance fund and
federal oversight of the thrift industry. Gaubert, 499 U.S. at
332. The decision of the Food and Drug Administration to
refuse entry to suspected contaminated fruit was a
discretionary action. Fisher Bros., 46 F.3d at 285. See also
Sea Land Servs. v. United States, 919 F.2d 888 (3d Cir.
1990) (decision to use asbestos in construction of ships was
a discretionary decision); General Public Utils. v. United
States, 745 F.2d 239 (3d Cir. 1984) (action of Nuclear
Regulatory Commission in not reporting safety information
was discretionary).1

Against the background of this brief survey of the general
principles governing the discretionary function exception,
we move to the consideration of the circumstances present
here.

The plaintiff's complaint focuses on the lack of a
stairway, railing, and lighting that made the steep path an
unsafe means of access to the trailer in the lower lot.
Although the district court referred to the Navy's "decision"
not to provide such improvements, it is not clear from that
court's opinion whether there had been an actual decision
to forego those measures, or whether the "decision" was
simply inaction. In a deposition, an employee of Martin-
Marietta stated that several years before plaintiff fell, the
Navy had been asked on two or three occasions to build a
stairway or install a handrail to ease travel down the path,
but that these requests had been rejected. The government
_________________________________________________________________

1. For a post-Gaubert commentary of the Federal Tort Claims Act, see
Harold J. Krent, Preserving Discretion Without Sacrificing Deterrence:
Federal Governmental Liability in Tort, 38 UCLA L. Rev. 871, 898 (1991)
("The discretionary function exception should insulate all agency actions
that, like congressional enactments themselves, reflect national policy");
William P. Kratzke, The Supreme Court's Recent Overhaul of the
Discretionary Function Exception to the Federal Tort Claims Act, 7 Admin.
L.J. Am. U. 1, 32 (1993) ("The discretionary function exception should
immunize government decisions only when cases present policy
questions that do not lend themselves to resolution by adjudication").

                    6
produced testimony that no records of such requests were
found in its files.

The government submitted affidavits of several Navy
personnel, pointing out what considerations would be
germane in "a decision" to construct a stairway or handrail.
The use of the article "a" appears to be deliberate and
indicates some uncertainty in the record. We gather that
there is thus a disavowal of a "decision in fact," or perhaps
merely a lack of knowledge, on whether the Navy actually
did decide not to take measures to reduce the hazardous
conditions in the pathway.

It would appear that in any event, the action or inaction
goes more to the issue of negligence rather than whether
the issue of policy discretion is implicated. "The test is not
whether the government actually considered each possible
alternative in the universe of options, but whether the
conduct was of the type associated with the exercise of
official discretion." Smith v. Johns Manville Corp., 795 F.2d
301, 308-09 (3d Cir. 1986); see also Fisher Bros., 46 F.3d
at 284 (we ask only if the nature of the action taken, or not
taken, is susceptible to policy analysis).

A.

The plaintiff's first line of attack is that the discretionary
function exception is not really at issue because the Navy
was bound to provide a stairway under the terms of the
OSHA regulations. Under Berkovitz, regulations that give no
options to a government agency take away the exercise of
discretion. 486 U.S. at 536. If the OSHA regulations did
apply, then the Navy could not rely on the discretionary
function exception absent a statutory exemption. The
district court held that by their own terms, however, the
regulations cited by plaintiff applied to construction sites
and not to an established facility like the Underwater
Tracking Range. On the record before us, the district
court's ruling was not erroneous.

The district court also reviewed the evidence on the
Navy's alternative theory that, by contract, Martin-Marietta
was the entity responsible for the condition of the path to
the trailer. The testimony of the Navy personnel did not

                    7
support the government's theory of delegation to an
independent contractor. Based on that evidence, the district
court properly rejected the delegation defense. We therefore
proceed to the discretionary decision issue.

B.

In concluding that policy considerations were present in
the Navy's action (or inaction), the district court relied on
an affidavit submitted by the Navy's technical director for
the Atlantic Fleet Weapons Training Facility. The affidavit
stated that "[i]n evaluating a decision of whether to install
an outdoor staircase and artificial lighting there are
military, social and economic considerations involved."

The pertinent factors were described as "a policy of
insuring that United States Navy and allied forces can
safely train with weapons in a realistic warfare
environment." It was also alleged that sophisticated weapon
systems could be damaged by construction near cables and
conduits forming part of those systems. Social
considerations included the safety of personnel using the
facility and economic factors included budgetary
constraints, procurement regulations, and the anticipated
service life of the facility.

The latter two categories in the affidavit are a
compendium of considerations that conceivably could go to
any decision by the Navy, from contracting for highly
complex missiles to patching a hole in the floor of an office
building. They are hardly the stuff that implicates the
Navy's mission to provide a defense to the Nation or to
enforce its diplomatic efforts. Consideration of tenets that
sweep so broadly is of little use in the application of the
discretionary function exception here.

Certainly there is a distinction between contracting for
the delivery of a weapons system costing millions or billions
of dollars, and the material and labor costs of a few
hundred dollars to construct a set of wooden steps, or even
the lesser expenditures of erecting a barricade and directing
personnel to use alternate routes. The safety of personnel
cited by the Navy actually cuts against its position. Again,
the Navy's proffered reasons are of such general application

                    8
as to provide no assistance in determining whether the
discretionary function exception fits the situation here.

The third factor -- that of possible damage to cables that
are integral to the monitoring devices in the weapons range
-- could be a factor affecting the Navy's mission. The
difficulty with the Navy's position is that there is no
evidence that cables are under or near the path, and
potential damage to them from construction of a stairway is
highly speculative. Based on this record, there is no
indication that any cables would be endangered by the
minor improvements involved here. Moreover, location of
the cables would have no relevance at all to placing a
barricade and diverting pedestrian traffic to an alternate
route. The Navy's contention is undermined further by the
apparent use of the path by personnel for many years
without hazard to the cables.

In emphasizing matters so remote from the
circumstances of this case as to be useless, the affidavit
employs the fire power of a sixteen-inch gun to attack an
irritating gnat. This case is not about a national security
concern, but rather a mundane, administrative, garden-
variety, housekeeping problem that is about as far removed
from the policies applicable to the Navy's mission as it is
possible to get. In the words of the Supreme Court, the
"challenged actions are not the kind of conduct that can be
said to be grounded in the policy of the regulatory regime."
Gaubert, 499 U.S. at 325. It is difficult to conceive of a case
more likely to have been within the contemplation of
Congress when it abrogated sovereign immunity than the
one before us.

The government cites a number of cases that it believes
supports its position. We find them quite distinguishable
from the matter at hand. In Ayer v. United States, 902 F.2d
1038 (1st Cir. 1990), a civilian visitor was injured allegedly
as a result of the Air Force's failure to attach a railing to a
floor forming part of a missile launch site. The decision to
omit railings was a deliberate choice to provide maximum
flexibility in the event of a nuclear attack and, in addition,
to maintain consistency of configuration with sites at other
locations. Id. at 1043. The difference between that case and
the one at hand is obvious.

                    9
In Baum v. United States, 986 F.2d 716 (4th Cir. 1993),
the Court concluded that an agency decision as to the
material used in guardrails alongside a highway came
within the exception. The Court decided that the choice to
replace a major element of a substantial public facility was
a discretionary decision of resource allocation. Id. at 722.
Notably, the agency's decision affected the construction of
the entire highway.

A somewhat similar case is Bowman v. United States, 820
F.2d 1393 (4th Cir. 1987), where the National Park Service
decided not to place a guardrail alongside the Blue Ridge
Parkway. The Court indicated that the agency's decision
involved a balancing of safety, aesthetic, and environmental
reasons, as well as available financial resources. Id. at
1395. Although that case somewhat favors the Navy's
position here, we do not find it so similar in its factual
background as to be a persuasive precedent for us.

In Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995), another
automobile accident case, the plaintiff alleged that the Park
Service allowed a road surface to become slippery and failed
to post warning signs. The Court concluded that the
decision to delay resurfacing of that road, in preference to
others in need of repair, was a policy judgment to be made
by the agency. Id. at 451. However, the Court decided that
the government's failure to post warning signs was not a
decision "fraught with public policy considerations" and,
hence, was outside the exception. Id. See also Cassens v.
St. Louis River Cruise Lines, Inc., 44 F.3d 508 (7th Cir.
1995) (coast guard inspectors use discretion when
conducting inspections); Johns-Manville, 795 F.2d at 307-
08 (government decision to sell asbestos "as is," without
warnings, fell within exception).

The government also relies on Hughes v. United States,
110 F.3d 765 (11th Cir. 1997), where the plaintiff was shot
by two assailants in the parking lot of a post office. The
Court held that the decision of the postal authorities to
limit security measures during hours when the post office
was closed fell within the discretionary function exception.
That case is easily distinguishable on its facts.

We conclude that the discretionary function exception is
not applicable in this case. Our holding on the issue of

                    10
jurisdiction, of course, is not intended to intimate any view
on the liability of the government on the merits. The
judgment of the district court will be reversed and the case
will be remanded for further proceedings.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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