                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2001
                         ___________________________

Mary Ann Metter, as Personal Representative of the Estate of Edward O. Metter, Deceased

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                              United States of America

                        lllllllllllllllllllll Defendant - Appellee
                          ___________________________

                                 No. 14-2002
                         ___________________________

             Justin Erickson and Jennifer Erickson, Husband and Wife

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

                              United States of America

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                     Appeal from United States District Court
                          for the District of Nebraska
                                 ____________
                            Submitted: February 13, 2015
                               Filed: May 11, 2015
                                  ____________

Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       On October 9, 2011, while fishing with his son-in-law and grandson near
Gavins Point Dam on the Missouri River in Cedar County, Nebraska, Edward Metter
was tragically struck and killed when a parked pickup truck came out of gear and
rolled down an unprotected river bank. Mary Ann Metter, Metter’s widow and
personal representative of his estate, brought survival and wrongful death actions
under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680, against
the U.S. Army Corps of Engineers (Corps), asserting the Corps negligently
maintained the site. The grandson, Justin Erickson, and his wife, Jennifer Erickson,
brought a separate suit against the Corps raising the same theories of liability for the
mental and physical harms to Justin caused by witnessing his grandfather’s death and
any losses suffered by Jennifer. The Corps filed a motion to dismiss, or in the
alternative, for summary judgment. The district court1 granted the Corps’ motion to
dismiss the claims under Federal Rules of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction, finding (1) the claims were barred by the FTCA’s discretionary
function exception, and (2) the United States did not waive sovereign immunity.2
Mary Ann and the Ericksons (collectively, appellants) appeal. We affirm.


      1
      The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
      2
        The district court also granted the Corps’ motion to substitute the United
States as defendant. See Duncan v. Dep’t of Labor, 313 F.3d 445, 447 (8th Cir. 2002)
(per curiam).

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I.     BACKGROUND
       A popular spot for fishing, Gavins Point Dam, lake, and associated facilities
are operated and managed by the Omaha District of the Corps. Guardrails line most
of the parking areas along Training Dike Road where Metter was killed. Due to
historic flooding beginning in May 2011, the Corps removed two sections of
guardrail in June 2011 to allow heavy equipment access to the river shoreline and to
facilitate ongoing flood-related repairs, closing these areas for public use. David
Becker, the Corps’ Operations Project Manager, inspected the remaining wooden
guardrail posts and determined they needed to be replaced. On August 30, 2011, the
Corps hired C.B.M.C., a Tennessee contractor, to install new guardrail posts by
September 30, 2011.

       On September 19, C.B.M.C. assured the Corps it would complete the project
the following week. In an attempt to reduce contract costs and meet the planned
September 30 deadline, Corps personnel removed the remaining guardrails and posts
on September 28. Becker testified the Corps reopened the area along the river to the
public, but did not post parking restrictions or public advisories because he believed
removal of the guardrails did not endanger the public. Despite the Corps’ repeated
attempts to contact C.B.M.C. between September 26 and October 7, C.B.M.C. did not
perform as promised. The fatal accident occurred on October 9, before the Corps
terminated C.B.M.C.’s contract and re-awarded the project to another contractor. The
new contractor replaced the guardrails before November 30.

       The appellants brought suit against the Corps under the FTCA, alleging the
accident occurred as a result of the Corps’ negligence in failing to (1) “timely replace
the guardrail and posts along the parking area on Training Dike Road,” (2) “make a
reasonable inspection of the parking area,” (3) “maintain a reasonably safe parking
area,” and (4) “warn[ ] the public of the hazardous condition that existed on the
parking area.” The Corps moved to dismiss the case on jurisdictional grounds,
arguing its decisions relating to the removal and re-installation of the guardrails were

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protected by the discretionary function exception to the FTCA. The district court
agreed and granted the motion, and appellants appeal.

II.   DISCUSSION
      “It is well settled that the United States may not be sued without its consent,”
Hinsley v. Standing Rock Child Protective Servs., 516 F.3d 668, 671 (8th Cir. 2008),
but under the FTCA, an injured party can hold the United States liable in tort

      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). However, 28 U.S.C. § 2680(a)—commonly referred to as the
discretionary function exception to the FTCA—prohibits “[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.”

        A two-part test determines when the discretionary function exception applies.
First, the agency action must “‘involv[e] an element of judgment or choice.’” United
States v. Gaubert, 499 U.S. 315, 322 (1991) (alteration in original) (quoting Berkovitz
v. United States, 486 U.S. 531, 536 (1988)). Second, we must “decide[ ] ‘whether
that judgment is of the kind that the discretionary function exception was designed
to shield.’” Id. at 322-23 (quoting Berkovitz, 486 U.S. at 536). “‘[I]t is the nature of
the conduct’” and whether the conduct is “susceptible to policy analysis” “‘rather
than the status of the actor that governs whether the exception applies.’” Id. at 325
(alteration in original) (quoting Varig Airlines v. United States, 467 U.S. 797, 813
(1984)). “[T]he exception ‘protects only governmental actions and decisions based

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on considerations of public policy,’” and there is a rebuttable presumption that the
government “agent’s acts are grounded in policy” “[w]hen established governmental
policy . . . allows [the] agent to exercise discretion.” Id. at 323-24 (quoting
Berkovitz, 486 U.S. at 537); see also Audio Odyssey, Ltd. v. United States, 255 F.3d
512, 519 (8th Cir. 2001); Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 795-96
(8th Cir. 1998).

       “We review de novo a district court’s grant of a motion to dismiss under the
discretionary function exception to the FTCA.” Dykstra, 140 F.3d at 795.

       Appellants “concede that there was an ‘element of choice’ in the [Corps’]
actions,” but propose that after the Corps decided to replace the guardrails, “it [was]
no longer exercising a discretionary policy-making function” that was “‘susceptible
to policy analysis’” and should be required to follow through “in a non-negligent
manner.” (Quoting Gaubert, 499 U.S. at 322, 325). We must decide whether the
Corps’ decision—to remove the guardrails and not post warning signs—is
“susceptible to policy analysis.” We conclude it is.

      A.      Corps’ Actions Were Discretionary
      Becker testified two regulations in chapter 3 of the Corps’ Engineering Manual
1110-2-410 (Manual) were “relevant to the siting of parking areas . . . and the
necessity of guardrails or other railings at or near parking areas.” The first provision,
paragraph 3-3(a)(1), provides, in relevant part:

      Overlooks and their support facilities should be sited on gently sloping
      terrain. The area where the entrance, exit and parking facilities will be
      located should not exceed 7 percent grades and the section of roadway
      passing the potential site should not exceed 5 percent grade.

The second provision, paragraph 3-3(a)(2), provides, in relevant part:



                                          -5-
      Precipitous drop offs should be made safe by the provision of
      appropriate railing.

We agree with the district court that nothing in the Manual prescribes “a specific,
mandatory duty upon the Corps to install or maintain (or to not remove) guardrails,
to provide warnings, or to restrict parking” applicable to Training Dike Road. We
also agree that “[t]he use of permissive language, rather than mandatory terms, such
as ‘must’ or ‘shall,’ shows that these [Manual] provisions are merely guidelines.”
Becker described the slope of the embankment from the road to the river as “not
precipitous” at the site of the accident. The decision to replace the guardrails was
made in the context of the operation of a much larger project—the Corps’ duty to
maintain the associated recreation areas and facilities—and the Corps had authority
to decide how to best effectuate those duties.

      B.      Susceptible to Policy Analysis
      In deciding whether the nature of the Corps’ actions is “susceptible to policy
analysis,” “[t]he focus of the inquiry is not on the agent’s subjective intent.” Gaubert,
499 U.S. at 325. Rather, we look to whether the decision being challenged is
“grounded in social, economic, or political policy.” Id. at 323.

       Looking first at appellants’ contention that the Corps’ failure to warn was not
a public policy decision, we find guidance in Layton v. United States, 984 F.2d 1496
(8th Cir. 1993). In Layton, we concluded the United States Forest Service’s “decision
whether or not to issue warnings [was] susceptible to policy analysis [because] it
involve[d] balancing safety against cost: the more effort the Forest Service expended
to discover dangers and warn contractors of them, the greater the safety benefit but
also the greater the cost to the government.” Id. at 1504-05; accord Hinsley, 516 F.3d
at 673 (“[T]he decision to warn is, at its core, a policy decision.”); Demery v. U.S.
Dep’t of Interior, 357 F.3d 830, 834 (8th Cir. 2004) (concluding the “decision . . .



                                          -6-
whether to warn . . . is susceptible to a policy analysis” because it requires balancing
interests like “increased safety . . . with . . . the cost of erecting warnings”).

       Appellants urge us to follow Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995),
which held the discretionary function exception did not apply to the National Park
Service’s failure to warn adequately about the nature of a road surface because the
Park Service could not “articulate how the placement of additional or different signs
on Beach Drive implicates . . . economic, social, or political concerns.” Id. at 452.
The Park Service posted “no less than twenty-three traffic control, warning, and
informational signs” on the section of road where an accident occurred, and there was
no evidence that “engineering and aesthetic concerns” prevented the posting of
additional warning signs. Id. at 451-52 (internal marks omitted). In Cope, the court
found the Park Service had already made a specific policy decision to favor safety
over aesthetics and this involved “engineering judgment” based on objective
scientific principles not susceptible to policy analysis. Id. at 452. Our facts are
different, and Cope is not binding. Appellants have not alleged or presented evidence
to show the Corps had either adopted a safety policy or established priorities to guide
the Corps’ decisions in maintaining Training Dike Road and the facilities at Gavins
Point Dam, and appellants have failed to rebut the presumption that the Corps’
decision not to post warning signs was grounded in policy. See Gaubert, 499 U.S. at
323-24.

       We next turn to appellants’ proposition that the Corps’ failure to replace the
guardrails by a specific date was not itself a policy decision, but instead was a
negligent failure to follow through on an earlier policy determination that the
guardrails should be replaced. Appellants rely on Aslakson v. United States, 790
F.2d 688, 693 (8th Cir. 1986), for the proposition that “[w]here the challenged
governmental activity involves safety considerations under an established policy
rather than the balancing of competing public policy considerations, the rationale for
the [discretionary function] exception falls away.” Appellants claim there is evidence

                                          -7-
of an “established policy” of protecting the area where the accident occurred because
“guardrails ha[d] been in place for at least thirty years.” Appellants argue the “policy
was reaffirmed when Mr. Becker determined that the deteriorating guardrails should
be replaced” by September 30.

       Unlike the government agency in Aslakson, whose “policy clearly required it
to elevate its power lines if safety considerations compelled such action,” id., there
was no clear policy that bound the Corps to prioritize safety considerations or
maintain guardrails. As the district court observed, “[t]he Corps could have decided
to issue a binding policy,” but chose not to.

       We recognize a distinction between the Corps (1) exercising discretion and
deciding to replace the guardrails, and (2) deciding to issue a regulation or forming
a policy requiring the installation or maintenance of guardrails. Because the Corps
had the discretion to decide if, how, and when to replace the guardrails, it had the
discretion to alter its initial decision to replace the guardrails by September 30 when
the first contractor failed to perform. See, e.g., Gaubert, 499 U.S. at 331 (deciding
conduct of bank regulators did not “fall outside the discretionary function exception”
when the conduct “involved the mere application of technical skills and business
expertise . . . at the operational level” rather than at a policy-making level, because
“the challenged actions involved the exercise of choice and judgment”); Shansky v.
United States, 164 F.3d 688, 695 (1st Cir. 1999) (determining “[a]n agency that has
discretion to make policy choices” can adjust the “balance of relevant concerns” over
time, and when the “overall policy decision [is] protected by the discretionary
function exception,” the protection extends to “component” decisions).

       More importantly, the Corps need not have made a “conscious decision
regarding policy factors,” so long as the decision to remove the guardrails was
susceptible to a “balancing of public policy objectives.” Kiehn v. United States, 984
F.2d. 1100, 1105 (10th Cir. 1993) (internal marks omitted). Here, as the district court

                                          -8-
observed, the Corps had to “balance the overall purpose of Training Dike Road with
the recreational uses of the area, the allocation of funds,” the timing of repairs and
maintenance work, “and the safety of drivers,” anglers, and other users. The Corps
removed the guardrails and posts itself to save money and to expedite the
project—both reasons reflect the discretionary exercise of choice and judgment.
When the first contractor, C.B.M.C., failed to perform in accordance with the
September 30 schedule, the Corps exercised choice and judgment to retain a new
contractor with a revised schedule, yet no guardrails were at the site on October 9,
2011. We conclude the Corps’ discretionary actions were “susceptible to policy
analysis” within the meaning of Gaubert.


III.   CONCLUSION
       We affirm the well-reasoned decision of the district court.
                       ______________________________




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