                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-2000

Cestonaro v. United States
Precedential or Non-Precedential:

Docket 99-3235




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Filed May 1, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3235

GIOVANNA CARBONIERO CESTONARO,
Individually and as Personal Representative
of the Estate of Danielle Cestonaro,
       Appellant

v.

UNITED STATES OF AMERICA

On Appeal from the District Court of the Virgin Islands
Division of St. Croix
D.C. Civil Action No. 95-cv-00102
(Honorable Raymond L. Finch)

Argued December 7, 1999

Before: BECKER, Chief Judge, SCIRICA and GARTH,
Circuit Judges

(Filed May 1, 2000)

       VINCENT A. COLIANNI, ESQUIRE
        (ARGUED)
       Hunter, Colianni, Cole & Bennett
       1138 King Street, Suite 301
       Christiansted, St. Croix
       U.S. Virgin Islands 00820

        Attorney for Appellant
       ERNEST F. BATENGA, ESQUIRE
        (ARGUED)
       Office of United States Attorney
       1108 King Street, Suite 201
       Christiansted, St. Croix
       U.S. Virgin Islands 00820

       PATRICIA A. HOOKS, ESQUIRE
       United States Department of the
        Interior
       Office of Regional Solicitors
       75 Spring Street, S.W., Suite 304
       Atlanta, Georgia 30303

        Attorneys for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This appeal requires us to interpret the "discretionary
function" exception to the Federal Tort Claims Act's general
waiver of sovereign immunity. The District Court dismissed
a wrongful death complaint against the United States,
finding that the discretionary function exception to the
Federal Tort Claim Act's waiver of sovereign immunity, 28
U.S.C. S 2680(a), applied. We will reverse.

I.

The underlying facts are undisputed. In December 1993,
Daniele Cestonaro, his wife Giovanna, and their daughter,
all Italian citizens and residents, were vacationing in St.
Croix, Virgin Islands. On the evening of December 28, the
Cestonaros parked their rental car in a lot on Hospital
Street in Christiansted. Upon returning to their car after
dinner, the Cestonaros were confronted by two armed gun
men. Daniele Cestonaro was shot and died almost
immediately.

The Hospital Street lot falls within the boundaries of the
Christiansted National Historic Site owned and controlled
by the United States Department of the Interior, National

                                 2
Park Service. At the time of the murder, the Hospital Street
lot was not an official parking lot. There were no signs
designating or even indicating that it was a parking lot; it
was neither paved nor striped. The lot's appearance,
however, differed from the surrounding area in the
Christiansted National Historic Site in terms of grade and
surface, as it consisted of broken asphalt from a previous
paving. Since the 1940s, the general public had used the
Hospital Street lot as a parking area. Furthermore, the
National Park Service was aware that crimes had occurred
in the lot before December 28, 1993. In addition to crime
incidents reports from the Virgin Island Police Department
and its own park rangers, the National Park Service also
received regular complaints about safety in the Hospital
Street lot from local business owners.1

It is undisputed that the National Park Service had done
nothing to deter nighttime parking in the Hospital Street
lot. It had not posted signs prohibiting parking, nor signs
warning of dangers of nighttime parking, nor issued tickets
for illegal parking. In fact, the lot was lighted at night.
Some time after the lot came into the government's
possession, five lights were installed illuminating the
Hospital Street lot. It is undisputed the National Park
Service maintained those lights.2
_________________________________________________________________

1. The record also reflects the Virgin Islands Police Department and the
National Park Service shared information on crimes occurring within the
Site's boundaries. Ten days before Mr. Cestonaro's murder, the Virgin
Islands Police Department responded to investigate afirst degree
robbery, attempted assault, carjacking and kidnaping that had taken
place in the Hospital Street lot. Despite the information sharing, the
National Park Service officials deposed here professed having had no
knowledge of this December 18 incident.

But we need not reconcile these facts here. The National Park Service's
knowledge, or lack thereof, of the dangers in the Hospital Street lot
relates more directly to the underlying negligence claims than to whether
the challenged actions here were protected by the discretionary function
exception. See discussion infra.
2. Because the Hospital Street lot falls within the boundaries of the
National Historic Site, which was so designated in 1952, it is likely that
any physical improvements to the parking lot during the subsequent
four decades were the result of a government decision. The record,
however, contains no information on this point -- it does not reflect
exactly when the lights were installed; who made the decision to install
them; nor why they were installed. As noted, the record does establish
that the National Park Service maintains the lights.

                               3
Giovanna Cestonaro filed a wrongful death action against
the United States under the Federal Tort Claims Act, 28
U.S.C. SS 1346(b), 2671, and the Virgin Islands Wrongful
Death Statute, 5 V.I.C. S 76. In her complaint, Mrs.
Cestonaro alleged that "[d]efendant was negligent in failing
to provide adequate lighting and correct the known
dangerous condition and to warn others about the
existence of the dangerous condition" at the Hospital Street
lot. The United States filed a motion to dismiss under Fed.
R. Civ. P. 12(b)(1) asserting the District Court lacked
subject matter jurisdiction because the challenged National
Park Service actions fell under the discretionary function
exception to the FTCA's waiver of sovereign immunity.3

The District Court dismissed the complaint, finding the
National Park Service's decisions concerning the Hospital
Street lot were grounded in its mission to "safeguard the
natural and historic integrity of national parks" and in its
policy "to minimally intrude upon the setting of such
parks." Cestonaro, Civ. No. 1995-102, slip op. at 11.

Mrs. Cestonaro appealed.

II.

We have jurisdiction under 28 U.S.C. S 1291. We exercise
plenary review over the applicability of the discretionary
function exception. See Gotha v. United States , 115 F.3d
176, 179 (3d Cir. 1997); Fisher Bros. Sales, Inc. v. United
States, 46 F.3d 279, 282 (3d Cir. 1995) (en banc). Because
the government's challenge to the District Court's
jurisdiction was a factual one under Fed. R. Civ. P. 12(b)(1),
we are not confined to the allegations in the complaint (nor
was the District Court) and can look beyond the pleadings
to decide factual matters relating to jurisdiction.
_________________________________________________________________

3. Along with its motion to dismiss, the government also sought, in the
alternative, judgment on the pleadings and summary judgment. Because
the District Court found that it lacked subject matter jurisdiction, it
did
not reach the government's alternative arguments. See Cestonaro v.
United States, Civ. No. 1995-102, slip op. at 1 n.1, (D.V.I. Sept. 11,
1998). We only address the discretionary function exception; we express
no opinion with respect to the government's judgment on the pleadings
and summary judgment motions.

                               4
See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d
884, 891 (3d Cir. 1977).

III.

A.

The Federal Tort Claims Act is a partial waiver of the
sovereign immunity that would otherwise protect the United
States from tort liability stemming from the actions of its
employees. The express purpose of the FTCA is to make the
United States liable "in the same manner and to the same
extent as a private individual under like circumstances
. . . ." 28 U.S.C. S 2674. But the FTCA's waiver is tempered
by several exceptions. See 28 U.S.C. S 2680. For our
purposes, the relevant exception is the "discretionary
function exception" that withdraws the waiver of sovereign
immunity with regard to:

       Any 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. S 2680(a).

The 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." United States
v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 808 (1984). The FTCA does not,
however, define "discretionary function." As a result there
has arisen a trove of case law identifying the contours of
the government's tort liability. Our holding that the
National Park Service's decisions concerning the Hospital
Street lot fall outside the scope of the discretionary function
exception is consistent with that jurisprudence. See, e.g.,
Gotha v. United States, 115 F.3d 176 (3d Cir. 1997); Cope
v. Scott, 45 F.3d 445 (D.C. Cir. 1995).

                               5
B.

The analytical framework of the discretionary function
exception has been laid out by the Supreme Court in a
trilogy of cases -- United States v. S.A. Empresa de Viacao
Aerea Rio Grandense (Varig), 467 U.S. 797 (1984); Berkovitz
v. United States, 486 U.S. 531 (1988); and United States v.
Gaubert, 499 U.S. 315 (1991). See Gotha, 115 F.3d at 179-
80.

The first issue is whether "a federal statute, regulation, or
policy specifically prescribes a course of action for an
employee to follow." Berkovitz, 486 U.S. at 536. If so, the
exception cannot apply. If not, the question is whether the
governmental action or inaction "is of the kind that the
discretionary function exception was designed to shield." Id.
If it is, the action constitutes the exercise of protected
discretion, and the United States is immune from suit.

The touchstone of the second step of the discretionary
function test is susceptibility to policy analysis. See
Gaubert, 499 U.S. at 325 ("The focus of the inquiry is not
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."). As we have previously stated, a plaintiff 's claim
can only survive if "the challenged actions cannot `be
grounded in the policy of the regulatory regime.' " Gotha,
115 F.3d at 179 (quoting Gaubert, 499 U.S. at 325). The
Court in Gaubert underscored the importance of the
relationship between the discretionary decision and policy
considerations, noting the exception applies only if the
challenged actions can "be said to be based on the
purposes that the regulatory regime seeks to accomplish."
499 U.S. at 325 n.7.

Before proceeding to apply the discretionary function
analysis to the facts of this case, there is one remaining
preliminary issue -- we must identify the challenged action.
See Rosebush v. United States, 119 F.3d 438, 441 (6th Cir.
1997) (noting that a crucial step in determining whether
challenged action is protected "is to determine exactly what
conduct is at issue"). As noted by the District Court,
plaintiff 's complaint levels two allegations concerning the
National Park Service's conduct:

                               6
       Defendant was negligent in failing to provide adequate
       lighting and correct the known dangerous condition
       and to warn others about the existence of the
       dangerous condition.

Compl. at P 7. In effect, plaintiff challenges the National
Park Service's decisions concerning lighting and warning in
the Hospital Street lot. From the record, it is unclear
whether the National Park Service made a decision not to
add lighting or warning signs to the Hospital Street lot or
whether that resulted from inaction or a non-decision. As
was the case in Gotha, however, "[i]t would appear that . . .
the action or inaction goes more to the issue of negligence
rather than whether the issue of policy discretion is
implicated." 115 F.3d at 180. Because the question before
us is only whether the nature of the actions taken, or not
taken, are susceptible to policy analysis, we need not
concern ourselves with whether the National Park Service
acted affirmatively regarding either lighting or warning at
the Hospital Street lot. See Fisher Bros., 46 F.3d at 284;
Smith v. Johns-Manville Corp., 795 F.2d 301, 308-09 (3d
Cir. 1986) ("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.").

IV.

A.

As noted, the first step in our analysis is whether there
was discretion over the challenged action, that is, whether
a federal regulation or policy specifically prescribes a
course of action. See Berkovitz, 486 U.S. at 536. Plaintiff
contends the National Park Service, by virtue of a 1985
agreement with the Virgin Islands, had no discretion with
respect to the Hospital Street lot. The 1985 agreement
amended the 1952 Memorandum of Agreement that
established the historic area. According to the plaintiff, the
1985 Addendum mandated the removal of the Hospital
Street lot by 1988, thereby eliminating any National Park
Service discretion.

                               7
The 1985 Addendum states that:

       Whereas it is the intent of both parties to implement
       this addendum as early as possible within the next 3
       years; NOW THEREFORE, it is understood that this
       addendum is for the specific purpose of detailing the
       specific remaining responsibilities of each party to
       achieve the purposes and objectives of the said
       Memorandum of Agreement, as amended.

       The National Park Service shall, subject to the
       availability of funds, assume and undertake the
       following responsibilities:

       A. Parking will . . . be removed from the area eas t of
       Hospital Street and West of Fort Christiansvaern. . . .

The District Court addressed the argument in two ways.
First, it expressed skepticism that the 1985 Addendum
constituted the kind of mandate that prevented the
government's recourse to the discretionary function
exception. Second, it held the plaintiff did not allege
negligence on the part of the National Park Service for
failing to close the parking lot, but rather for failing to
provide adequate lighting or to warn of known dangers
associated with nighttime parking in the lot.

Given the qualification "subject to the availability of
funds," the Addendum does not appear to be the kind of
express mandate that precludes coverage by the
discretionary function exception. See, e.g. , Berkovitz, 486
U.S. at 536 ("[T]he discretionary function exception will not
apply when a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to
follow."). Here, the National Park Service's determination
whether there were funds available seems to be the kind of
judgment or choice inherent in the discretionary function
exception. See id. ("[C]onduct cannot be discretionary
unless it involves an element of judgment or choice."). The
inclusion of "shall" in the Addendum language does not
necessarily destroy the National Park Service's discretion.
Cf. Brackin v. United States, 913 F.2d 858, 860 (11th Cir.
1990) ("While the language of these guidelines often
includes the word shall, it is clear that the decision to use
one method as opposed to another is based upon numerous

                                 8
factors including a consideration of a method that the
parties can agree on.").

But we need not determine whether the 1985 Addendum
eliminates the National Park Service's discretion regarding
the use of the Hospital Street lot. We agree with the District
Court that the 1985 Addendum does not mandate a specific
course of conduct and cannot be dispositive with respect to
lighting and warning decisions in the Hospital Street lot.
The lighting and warning decisions here, therefore, remain
discretionary.

But this does not end our inquiry.4 We must determine
whether the discretionary lighting and warning decisions
are susceptible to policy analysis and therefore enjoy the
protection of the discretionary function exception. See, e.g.,
Gaubert, 499 U.S. at 322-23 ("[E]ven assuming the
challenged conduct involves an element of judgment, it
remains to be decided whether that judgment is of the kind
that the discretionary function exception was designed to
shield." (internal quotations omitted)); Berkovitz, 486 U.S.
at 546-47 ("[I]f the Bureau's policy leaves no room for an
official to exercise policy judgment in performing a given
act, or if the act simply does not involve the exercise of
such judgment, the discretionary function exception does
not bar a claim that the act was negligent or wrongful.").

As recognized by the District Court, we made clear in
Gotha that susceptibility analysis "is not a toothless
standard that the government can satisfy merely by
associating a decision with a regulatory concern."
Cestonaro, Civ. No. 1995-102, slip op. at 15. In Gotha,
plaintiff sought to sue the United States for its alleged
negligent failure to install a staircase or bar passage down
an embankment at the United States Navy's Underwater
_________________________________________________________________

4. We are mindful that "[w]hen established government 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."
Gaubert, 499 U.S. at 324. That presumption, however, can be rebutted.
See id. at 324-25 (noting that complaint can survive motion to dismiss
if "the challenged actions are not the kind of conduct that can be said
to be grounded in the policy of the regulatory regime").

                               9
Tracking Range in St. Croix, Virgin Islands. Plaintiff slipped
and fell while traveling along a footpath down the hillside.
The United States contended its actions (or inactions) were
motivated by "military, social and economic considerations."
Gotha, 115 F.3d at 181 (internal quotations omitted). In
rejecting the government's appeal to broad policy
considerations that "conceivably could go to any decision by
the Navy," we observed that "[t]his 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." Id. We also
concluded that "[i]t 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." Id. at 182. That torts stemming from garden variety
decisions fall outside the discretionary function exception is
consistent with a primary motive behind the FTCA. See
Dalehite v. United States, 346 U.S. 15, 28 & n.19 (1953)
(noting that "[u]ppermost in the collective mind of Congress
were the ordinary common-law torts" and that
"congressional thought was centered on granting relief for
the run-of-the-mine accidents"). In our view, the events
surrounding Daniele Cestonaro's death are no more related
to the National Park Service's policies than were the events
surrounding Ms. Gotha's broken ankle related to the Navy's
overarching policies. See discussion infra. What was true in
Gotha is true here, except the consequences here were far
more tragic.

B.

The National Park Service contends its decisions (or non-
decisions) not to add lighting nor to post warning signs
were grounded in its overarching objective of returning the
area to its historic appearance.5 The government points to
_________________________________________________________________

5. "The United States has the burden of proving the applicability of the
discretionary function exception." National Union Fire Ins. v. United
States, 115 F.3d 1415, 1417 (9th Cir. 1997). See also 14 Wright &
Miller, Federal Practice and Procedure Jurisdiction 3d. S 3658.1 at 639
(1998) ("[M]ost courts have concluded that the burden of proving the
applicability of the discretionary-function exception falls upon the
United
States.").

                               10
several documents to ground this policy concern. First, it
relies on the original 1952 Memorandum of Agreement,
which established the National Historic Site with the
purpose of preserving the integrity of the historic structures
and grounds. It also points to a 1972 Memorandum of
Agreement which recited that its "basic objective in the
management of Christiansted National Historic Site is to
retain the architectural and historical integrity of the
structures and their environment." The National Park
Service also argues it is not expressly required to add
lighting or post warning signs in the Hospital Street lot.

The National Park Service's arguments are inapposite. It
may be arguable that the initial decision to maintain
parking at the Hospital Street lot was protected by the
discretionary function exception. But assuming this were
so, subsequent decisions concerning the Hospital Street lot
were not necessarily protected. See, e.g., Indian Towing Co.,
Inc. v. United States, 350 U.S. 61 (1955); George v. United
States, 735 F. Supp. 1524 (M.D. Ala. 1990).

Indian Towing involved alleged negligence by the United
States Coast Guard in its failure to properly maintain the
light on a lighthouse it had established. Despite the Coast
Guard's claim of sovereign immunity, the Court found the
United States could be held liable under the FTCA for the
negligent operation of the lighthouse even though the initial
decision to establish a lighthouse was discretionary. The
Court explained

       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 good working order; and, if the light did become
       extinguished, then the Coast Guard was further
       obligated to use due care to discover this fact and to
       repair the light or give warning that it was not
       functioning. If the Coast Guard failed in its duty and
       damage was thereby caused to petitioners, the United
       States is liable under the Tort Claims Act.

                               11
Indian Towing Co., 350 U.S. at 69. In reasserting the
vitality of Indian Towing, the Supreme Court has stated
that

       The [Indian Towing] Court stated that the initial
       decision to undertake and maintain lighthouse services
       was a discretionary judgment. The Court held,
       however, that the failure to maintain the lighthouse in
       good condition subjected the Government to suit under
       the FTCA. The latter course of conduct did not involve
       any permissible exercise of policy judgment.

Berkovitz, 486 U.S. at 538 n.3 (internal citations omitted).

In George, a District Court rejected the National Forest
Service's attempt to invoke the discretionary function
exception when Mr. George was attacked by an alligator
while swimming in a recreational swimming area
designated by the Forest Service. The court held that
although the decision to establish the swimming area was
discretionary, the subsequent failure to warn the public of
known dangers was not covered by the exception. See
George, 735 F. Supp. at 1533 ("[O]nce the decision was
made, the Forest Service was under a duty to act
reasonably for protection of humans, particularly against
hidden dangers known to the Service.").

In a similar case, in which a swimmer was struck and
killed by a boat in an unrestricted portion of a lake
supervised by the Army Corps of Engineers, the Court of
Appeals for the Tenth Circuit held that although a"zoning"
decision that resulted in the area having no restrictions
was discretionary, the subsequent failure to warn
swimmers was not. Boyd v. United States, 881 F.2d 895,
898 (1989). In so holding, the court in Boyd rejected the
government's argument that a finding that it had protected
discretion with respect to initial "zoning" decisions
necessitated a conclusion that the discretionary function
exception protected all decisions affecting the zoned area.
See id. ("[T]he government asserts that a discretionary
decision not to zone an area necessarily makes
discretionary a decision that nothing be done there,
regardless of potential hazards. We do not agree.").

                               12
Even if there was protected discretion for the National
Park Service's decision to maintain parking at the Hospital
Street lot, that does not answer whether subsequent
decisions were also protected. See Indian Towing , 350 U.S.
at 69; Boyd, 881 F.2d at 898; George, 735 F. Supp. at
1533. See also Patel v. United States, 806 F. Supp. 873,
878 (N.D. Cal. 1992) (refusing to hold that "all actions
taken in the course of serving a search warrant are
protected by the discretionary function exception" despite
recognizing that "decisions to investigate the alleged illegal
activity, to obtain the search warrant, when and where to
serve the warrant" among others were immune from suit
because they were "based on public policy considerations").

The National Park Service fails to show how providing
some lighting, but not more, is grounded in the policy
objectives with respect to the management of the National
Historic Site. Similarly, the National Park Service has not
presented a viable argument as to how its alleged failure to
warn is rooted in its policy objectives. The government has
not argued that having some lighting at the Hospital Street
lot, but not more lighting, is consistent with its policy
objective of preserving the historical integrity of the
structures and their environs at the National Historic Site.
Nor has it argued that having an allegedly dimly lit parking
lot with no warning signs is consistent with its stated
objectives. We doubt it can reasonably make such
arguments.6
_________________________________________________________________

6. In past cases, the National Park Service has relied on 16 U.S.C. S 1 to
argue the discretionary function exception protects its policy decisions
made by balancing aesthetic against safety interests. See, e.g., Shansky
v. United States, 164 F.3d 688 (1st Cir. 1999); Chantal v. United States,
104 F.3d 207 (8th Cir. 1997); Bowman v. United States, 820 F.2d 1393
(4th Cir. 1987). In the present case, the National Park Service might
have argued that its decision not to install further lighting and/or post
warning signs regarding the dangers relative to the Hospital Street lot
involved a similar balancing given the historical nature of the
Christiansted National Historic Site. The National Park Service, however,
neither raised this argument before us nor cited the cases reflecting this
balancing formula. This alone gives us ground to reject such a balancing
formula.

Accordingly, we see no tension between our decision and those
reached in the cases cited. Under proper circumstances, the National

                               13
Looking beyond the government's general preservation of
historicity argument, the District Court stated that
"[f]urther and more importantly, the government argues
that the NPS' decision reflected the NPS' hope that it could
discourage parking -- a use of the Site inconsistent with
the Site's historicity -- by eliminating all indicia of parking
in the lot." Cestanaro, Civ. No. 1995-102, slip op. at 11.
But, as noted, the record shows the National Park Service
had not eliminated all indicia of parking in the Hospital
Street lot. Neither had the National Park Service taken any
action to restore the property to grade or surface of the
original nor had it any plan to do so.

In short, there is no evidence to support the government's
contention, adopted by the District Court that "the NPS
made no improvements to the Site, for fear that
improvements would (1) detract from the historic scene;
and (2) lead individuals to believe that the Hospital Street
lot was a sanctioned parking area and so increase the
number of individuals parking there, further undermining
the Site's historic character." Id. at 16.7
_________________________________________________________________

Park Service may balance aesthetic and safety interests and avoid
liability through the discretionary function exception. To properly invoke
an aesthetic interest, there must be a reasonable relationship between
that interest and the challenged action. See discussion infra Part IV.C.
See also Shansky 164 F.3d at 695 (recognizing there must be a
"plausible nexus between the challenged conduct and the asserted
justification"). The Shansky court, relying both on the National Park
Service's lack of knowledge of any prior incidents at the site and its
demonstrated efforts to restore the site in an historically accurate
manner, found the requisite connection between policy and justification
satisfied. 164 F.3d at 695-96. As noted, neither factor pertains here. It
is clear that the requisite nexus between the challenged action and 16
U.S.C. S 1 is missing.

7. As noted, the District Court understood the National Park Service to
argue the discretionary function exception applied because it did not
post signs so as to avoid unintentionally attracting additional parking,
which in turn would be contrary to its policy of restoring the Site's
historicity. The National Park Service has made similar claims in past
cases involving the discretionary function exception. See Childers v.
United States, 40 F.3d 973, 976 (9th Cir. 1995). Although the National
Park Service in Childers claimed its decision not to post warning signs
on unmaintained winter trails in Yellowstone National Park was based,

                               14
In its attempt to fashion a policy rationale for the
National Park Service's actions, the District Court also
relied on the Christiansted General Management Plan,
which set forth a management strategy for the site, and
which called on the Park Service to:

       preserve the historic site to as closely as possible
       represent its appearance of the early to mid nineteenth
       century . . . No physical alterations will be undertaken
       to provide for . . . visitor safety, if it is determined that
       such actions will impair significant architectural
       features or structural systems.

Id. at 11-12.

The District Court accurately noted that the connection
between the "above-described policy and the NPS' inaction
in the instant matter is somewhat attenuated." Id. at 12.
But it concluded that "the NPS' decision not to place
improved lighting or signs at the Hospital Street lot can be
characterized as part of an overall policy and so falls within
the discretionary function exception." Id. We disagree.

As noted, the Supreme Court has made clear that the
proper inquiry in analyzing the discretionary function
exception is whether "the challenged acts of a Government
employee . . . are of the nature and quality that Congress
intended to shield from tort liability." Varig, 467 U.S. at
813. In explaining Congress' intent, the Court emphasized
that the core purpose of the exception was to "prevent
_________________________________________________________________

in part, on its cognizance "that posting warning signs would
inadvertently attract visitors to unmaintained trails," the court decided
the case on other grounds. Id. The National Park Service policy at issue
in Childers provided: " `If roads and trails cannot be maintained as
designed and built, they should either be closed or the public adequately
warned.' " Id. (citation omitted). The Court of Appeals for the Ninth
Circuit found the National Park Services decision to provide warnings
"though park brochures, visitor center displays, bulletin board
information, and personal contacts" rather than by posting signs on
trails was protected by the discretionary function exception. Id. Here,
there is no evidence the National Park Service warned or attempted to
warn of the potential danger of parking in the Hospital Street lot through
any means.

                               15
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 814. The
exception is meant " `to protect the Government from
liability that would seriously handicap efficient government
operations.' " Id. (quoting United States v. Muniz, 374 U.S.
150, 163 (1963)).

In our view, plaintiff 's suit does not put the District
Court in the position of second guessing a National Park
Service administrative decision that is "grounded in social,
economic, and political policy." We are unable tofind a
rational nexus between the National Park Service's lighting
or warning decisions (or non-decisions) and social,
economic and political concerns. Nor will plaintiff 's claim
seriously impede the National Park Service's proper
functions or operations. The National Park Service remains
free to make decisions grounded in policy considerations
without risking tort liability; but it cannot make decisions
unrelated to policy and then seek shelter under the
discretionary function exception. See Sami v. United States,
617 F.2d 755, 766-67 (D.C. Cir. 1979) ("[T]he exception
exempts the United States from liability only where the
question is not negligence but social wisdom, not due care
but political practicability, not reasonableness but
economic expediency." (internal quotations omitted)).

In one of its early treatments of the FTCA, the Supreme
Court articulated the Act's purpose in terms that
underscore why the National Park Service cannot rely on
the discretionary function exception here. The Court stated:

       The broad and just purpose which the statute was
       designed to effect was to compensate the victims of
       negligence in the conduct of governmental affairs in
       circumstances like unto those in which a private
       person would be liable and not to leave just treatment
       to the caprice and legislative burden of individual
       private laws.

Indian Towing, 350 U.S. at 68-69. Would a private actor in
the National Park Service's shoes be amenable to suit? We
believe under the facts presented, the answer is yes. No
challenged decision, or non-decision, taken here by the

                                16
National Park Service was reasonably rooted in policy
considerations. As a result, the discretionary function
exception does not apply. Plaintiff may or may not prevail
on the merits, but the FTCA does not bar her suit. 8

C.

We do not hold that once an agency makes a decision
inconsistent with its policies that all subsequent decisions
must fall outside the discretionary function exception.
Relying on Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995),
plaintiff contends that by deciding to maintain a parking lot
in the middle of the historic site contrary to its stated
objective of returning the area to its early 19th Century
appearance, the National Park Service abrogated its policies
and cannot rely on them to justify its subsequent decisions
concerning the Hospital Street lot. But Cope does not stand
for such a broad proposition.

In Cope, plaintiff was injured in an accident on Beach
Drive which passes through Washington, D.C.'s Rock Creek
Park. Plaintiff sustained injuries when a car crashed into
his after losing traction on a curve in the rain. The National
Park Service, which owns and operates Beach Drive,
asserted a discretionary function exception defense saying
that its decision not to place a "slippery when wet" warning
_________________________________________________________________

8. In her appeal, Mrs. Cestonaro also raised whether the District Court
abused its discretion in its treatment of her motion for reconsideration,
which she claimed contained a request for leave to amend her complaint
which was ignored by the District Court. In a footnote in her Motion to
Reconsider, plaintiff stated:

       In the event the Court feels that the allegation that the NPS was
       negligent in failing to prohibit parking in the Hospital Street lot
       should be pled more explicitly in the Complaint, Plaintiff requests
       the opportunity to file a Motion to Amend the Complaint to include
       such allegation.

In light of our conclusion that the conduct challenged in plaintiff 's
original complaint, as understood by the District Court, is not covered by
the discretionary function exception, we need not address plaintiff 's
motion for reconsideration. Upon the reinstatement of her suit, plaintiff
may request leave to amend her complaint. See Fed. R. Civ. P. 15(a). We
express no opinion whether such a motion should be granted.

                                17
sign before the curve was a discretionary policy decision.
The Court of Appeals for the D.C. Circuit reversed the
District Court's dismissal based on the discretionary
function exception, holding the decision of whether to post
the sign was not rooted in policy considerations. See Cope,
45 F.3d at 451-52.

The Cope Court stated that it was unconvinced by the
National Park Service's aesthetics argument given that
"twenty-three traffic control, warning, and informational
signs already exist on the half-mile stretch bracketing the
curve on which the accident occurred--a stretch of road
that carries 20,000 vehicles daily." Id. at 452 (internal
quotations omitted). Recognizing that other aesthetics-
based failure to warn cases had reached the opposite
result, the D.C. Circuit stated that those decisions were
"easily distinguishable [because] . . . the decisions were
based on a reasonable desire to protect the experience of
the park visitor." Id. We believe the essential holding in
Cope to be that a decision (or non-decision) must be
reasonably related to a policy consideration to fall under
the discretionary function exception.9

V.

For the reasons stated, we hold the discretionary
function exception does not apply to the National Park
Service's decisions concerning the Hospital Street lot. We
will reverse the judgment of the District Court and remand
for proceedings consistent with this opinion.

A True Copy:
Teste:

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

9. Note that this is different than asking whether a policy-based decision
was correct or wise because such analysis would run afoul of the
statutory command that the exception applies "whether or not the
discretion be abused." 28 U.S.C. S 2680(a).
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