UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SUZANNE B. ZIELINSKI,
Plaintiff-Appellant,

v.                                                                     No. 95-2160

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CA-92-90-L)

Argued: March 6, 1996

Decided: June 6, 1996

Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Henry E. Weil, BELLI, WEIL & GROZBEAN, P.C.,
Rockville, Maryland, for Appellant. Roann Nichols, Assistant United
States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:
Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Suzanne Zielinski brought this suit against the United States pursu-
ant to the Federal Tort Claims Act ("FTCA"). The district court
granted judgment for the United States based on the discretionary
function exception to the FTCA. Ms. Zielinski appeals. Finding no
reversible error, we affirm.

I.

Ms. Zielinski was kidnapped from her home on the Naval Station
in Guam. Her abductor, Kenneth Quenga Rappolla, gained entry to
the base by presenting his Army Reserve identification card at the
front gate. He then obtained a temporary decal pass for his vehicle
from the Pass and Decal office on the base. After kidnapping and
assaulting Ms. Zielinski, Rappolla drove her off the base where he
further assaulted her. Rappolla was subsequently captured, tried, con-
victed, and imprisoned for his crimes.

Ms. Zielinski brought this suit against the United States, asserting
that the government was negligent in failing to provide adequate
security at the base. She alleged that this negligence permitted Rap-
polla, a person who had been specifically barred from the base, to
gain access to the base and commit the assaults.

Prior to trial, both Ms. Zielinski and the United States moved for
summary judgment. Ms. Zielinski based her motion on the FTCA and
her evidence assertedly demonstrating the government's negligence;
the government based its motion on the applicability of the discretion-
ary function exception to the FTCA. The district court denied both
motions but narrowed the issues for trial. The court held that the gov-
ernment's decisions regarding the extent of the security procedures
necessary at the base fell within the discretionary function exception

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to the FTCA. Nevertheless, the court concluded that Ms. Zielinski
could still succeed on her claim if she could demonstrate that the base
had, in fact, implemented security measures and"security personnel
failed to carry out a task specifically required of them."

Noting a conflict in the evidence as to whether the base policy
required security personnel to check all I.D. cards against the debar-
ment list before permitting entry or merely to check non-military I.D.
cards, the court held that a trial was required solely on this issue. The
court ruled that if the actual policy required personnel to check only
non-military I.D. cards against the list, the government would be enti-
tled to judgment under the discretionary function exception; however,
if the policy was to check all I.D. cards, Ms. Zielinski could proceed
with her claim. The court then scheduled a non-jury trial on the issue
of which policy was actually in effect on the base.

At the conclusion of this trial, the district court issued a memoran-
dum opinion granting judgment to the government. The court found
as a fact that the policy in effect at the time of the assault required
security personnel to check only non-military I.D. cards against the
debarment list. Therefore, security personnel had no mandatory duty
to check military I.D. cards against the debarment list. Since Rappolla
had a military I.D., the security personnel violated no mandatory duty
in failing to check his name against the debarment list before issuing
him the temporary pass. Instead, in permitting Rappolla access to the
base, security personnel were performing a discretionary security
function and therefore, even if they were negligent, the discretionary
function exception applied. The district court concluded that "Ms.
Zielinski has not satisfied her burden on the issues for trial," and
awarded judgment in the government's favor.

II.

Ms. Zielinski appeals the court's decision on two grounds. She first
maintains that the district court committed clear error in finding that
the base did not have a mandatory policy for checking all I.D cards,
including military I.D. cards, against a debarment list before permit-
ting entry to the base.

There was conflicting testimony on the issue of the policy actually
in effect. Ms. Zielinski offered extensive evidence, including deposi-

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tion testimony from several individuals involved in checking I.D.
cards -- testimony which indicated that those individuals believed the
policy in effect was to check all I.D. cards. She also relied on a writ-
ten "policy," of unknown origin or vintage, which stated that security
personnel were to check all I.D. cards against the debarment list
before issuing temporary passes. In opposition, the government
offered the testimony of Captain Marchetti, the base commander ulti-
mately responsible for security at the base. Captain Marchetti testified
that the security procedure in effect at the base was to check only
civilian I.D. cards against the debarment list, not military I.D. cards.
This was in part, Captain Marchetti testified, because the military
takes care of its own problems and, therefore, it was only necessary
to check civilian I.D. cards. After considering this evidence, the dis-
trict court found as a fact that the security procedure in effect at the
base did not require security personnel to check all I.D. cards against
the debarment list, but only non-military I.D. cards. Accordingly, the
court ruled that security personnel had not violated any mandatory
requirements when they failed to check Rappolla's Army Reserve
I.D. against the debarment list and, thus, the discretionary exception
applied.

Ms. Zielinski asserts that this finding was clearly erroneous. The
district court listened to the testimony of the base commander and
found him to have "excellent and precise recall" of the security proce-
dures in effect, while finding Ms. Zielinski's evidence less convinc-
ing. This court does not assess the evidence by counting witnesses for
or against each side and independently assessing credibility. The dis-
trict court observed Captain Marchetti testify first-hand and its credi-
bility assessment is entitled to deference. "Factual findings are not
clearly erroneous if the record contains sufficient evidence to support
them." Agathos v. Starlite Motel, 977 F.2d 1500, 1504 (3d Cir. 1992).
The base commanders' testimony provided sufficient evidence to sup-
port the district court's factual finding that the actual policy in effect
was to check only non-military I.D. cards. Accordingly, we cannot
conclude that the district court's finding was clearly erroneous.

Ms. Zielinski asserts that the court's finding cannot stand because
the court erroneously placed the burden on her of establishing the
actual base policy in effect. This error, she contends, is indicated by

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language in the court's opinion in which it stated that she had not
"satisfied her burden on the issues for trial."

Although this statement as to "burden" is somewhat ambiguous,
nothing in the record indicates that the court placed the evidentiary
burden on Ms. Zielinski. Rather, it appears that the court meant that
Ms. Zielinski had not carried her burden to point out a mandatory
restriction that "cabined" the discretion of security personnel within
their more broad discretion regarding base security. This was neces-
sary to rebut the government's initial showing that it was entitled to
judgment under the discretionary function exception.

We agree with Ms. Zielinski that normally the burden is on the
government to prove that the discretionary function exception applies.
See, e.g., Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995).
But in this case, the district court initially found that the government
had carried its burden by showing that decisions as to necessary
security procedures at the base fell under the exception. The district
court then correctly noted that the only way Ms. Zielinski could suc-
ceed in her claim was if the base had enacted mandatory procedures
within that discretion. Because the government denied that a manda-
tory checking procedure existed, the burden necessarily shifted to Ms.
Zielinski at least to point out the mandatory security procedures that
the government allegedly violated. Cf. Daigle v. Shell Oil Co., 972
F.2d 1527, 1539-40 (10th Cir. 1992) (finding it insufficient for the
plaintiff to merely allege that the government violated a mandatory
regulation, plaintiff must point the court to the allegedly violated
mandatory regulation); Creek Nation Indian Hous. Auth. v. United
States, 905 F.2d 312, 314 (10th Cir. 1990) (same). Cf. also United
States v. Gaubert, 499 U.S. 315, 329 (1991) (noting that neither party
had identified for review any formal regulations). Accordingly, in the
somewhat unusual procedural context of this case, the district court
did not err in concluding that Ms. Zielinski could not carry her burden
to rebut the government's initial showing that its conduct fell within
the discretionary function exception.

III.

Ms. Zielinski's second argument on appeal is that, even if the dis-
trict court's finding that the policy was to check only non-military

                    5
I.D. cards is accepted, the government was still not entitled to judg-
ment. She asserts that the district court erred in"failing to determine
whether the procedure adopted to implement the official safety policy
involved an element of choice and whether such choice was grounded
in social, economic, or political policy."

The district court's initial conclusion, that the extent and manner
of base security measures in general fell within the discretionary func-
tion exception, is well-supported by the case law. See Goldstar (Pan-
ama) S.A. v. United States, 967 F.2d 965, 970 (4th Cir.) (discretionary
function exception applies to government's decision regarding secur-
ity measures necessary to protect Panamanian businesses in wake of
U.S. occupation), cert. denied, 506 U.S. 955 (1992); Attallah v.
United States, 955 F.2d 776, 785-86 (1st Cir. 1992) (exception applies
to Customs Service policy and procedures for providing security to
passengers); Haygan v. United States, 627 F. Supp. 749, 750-51
(D.D.C. 1986) (exception applies to security precautions at a parking
lot); Marbley v. United States, 620 F. Supp. 811, 813 (D.D.C. 1985)
(exception applies to security measures taken at Washington Navy
Yard). Accordingly, the district court did not err in concluding that
Ms. Zielinski could rebut the government's entitlement to judgment
only by showing that within its broad discretion regarding security,
the government had implemented mandatory security procedures.

In attempting to meet this burden at trial, Ms. Zielinski pointed
only to the alleged policy for checking all I.D. cards against the list
as the mandatory policy implemented within the government's
broader security discretion. As indicated within, the district court
found as a fact that this was not the policy in effect and we have con-
cluded that this finding was not clearly erroneous. Perhaps in view of
the small likelihood of reversal of the district court's factual finding
on appeal, Ms. Zielinski makes a second argument. In direct contra-
diction to the district court's ruling prior to trial that the government
would be entitled to judgment if the court found that no mandatory
policy existed for checking all I.D. cards against the list, she contends
that she can still establish the government's liability in the face of
such a finding. She now maintains that the "debarment list" itself is
the mandatory policy "cabining" security personnel's discretion, and
that the failure to implement properly that mandatory policy did not

                     6
involve a policy choice based on economic, social, or political consid-
erations.

Because it is not clear that she ever raised this specific argument
before the district court, arguably it is not properly before us on
appeal. See e.g., United States v. Banisadr Bldg. Joint Venture, 65
F.3d 374, 379 (4th Cir. 1995); Agra, Gill & Duffus, Inc. v. Benson,
920 F.2d 1173, 1176 (4th Cir. 1990). Regardless, even if the argument
had been preserved for appeal, we would have to reject it as meritless.
The manner in which the government chose to keep debarred persons
from the base involved discretionary decisions based on social, eco-
nomic and political considerations. In our review, we do not look to
whether the government actually balanced these assorted consider-
ations, but whether the government's decision was of a type that is
typically grounded in such considerations. See Baum v. United States,
986 F.2d 716, 720-21 (4th Cir. 1993). There are numerous ways the
base commander could have effectuated the policy of keeping debar-
red persons from the base. Security procedures could involve check-
ing all persons at the gate, employing a roving patrol to check I.D.
cards, simply escorting debarred persons from the base whenever they
were found on the base, or checking only non-military I.D. cards at
the gate.

These security decisions are grounded in economic, social and
political considerations. Among the factors military commanders
should consider are the resources and manpower necessary to check
I.D. cards (see Baum, 986 F.2d at 724); the impact of the security
measures on the functioning of the base (for example, in this case
there was testimony that not all I.D. cards were checked at the gate
because this caused extensive back-ups and delays); the impact of
security measures on the general base atmosphere and local sensibili-
ties; and other distinctly military concerns (take, for example, Captain
Marchetti's comment that the military takes care of its own disciplin-
ary problems). Contrast Noel v. United States , 893 F. Supp. 1410,
1420-21 (N.D. Cal. 1995) (discretionary function exception does not
apply where government decision is motivated solely by safety con-
siderations similar to those facing private individuals).

Indeed, due to financial constraints, Captain Marchetti testified that
the Naval Station on Guam at present is an "open base" with free

                    7
access to all persons. If the "debarred list" still exists, security person-
nel no longer make any effort to stop those persons at the gate or the
Pass and Decal office. Additionally, it should be noted that the letter
informing Rappolla that he was barred from the base did not state that
he would be stopped from entering the base, but that he would be
punished if found on the base. The decision whether to open or close
a base, or to what extent the base should be open or closed, is a deci-
sion within the commander's discretion. Moreover, the base com-
mander's decision as to how to keep debarred persons from the base
involves an exercise of discretion grounded in policy concerns.

IV.

No one denigrates the tragedy Ms. Zielinski has suffered. Unfortu-
nately, it is not one for which there is any remedy against the United
States. Accordingly, the district court's decision dismissing this case
for lack of subject matter jurisdiction is

AFFIRMED.

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