                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        APRIL 2, 2012
                                            No. 11-14300
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                            D.C. Docket No. 2:10-cv-00894-MEF-TFM



VIRGINIA A. SMITHERMAN,
Administrator of the Estate of Trentina
Valencia Smitherman, deceased,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

                                             versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellee.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Alabama
                                 ________________________

                                           (April 2, 2012)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:

      Virginia Smitherman, proceeding pro se, appeals the district court’s grant of

the government’s motion to dismiss her wrongful death action filed under the

Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1).

                                          I.

      Smitherman alleges that United States Army medical personnel in Germany

prescribed her daughter sodium fluoride supplements because the water in

Germany was not fluoridated. She claims that the prescription was issued under

guidance from the Food and Drug Administration and the Centers for Disease

Control and Prevention even though sodium fluoride supplements have never been

approved by the FDA. She alleges that the fluoride supplements caused her

daughter to develop cancer, from which her daughter eventually died.

      Smitherman was appointed administrator of her daughter’s estate and filed a

wrongful death action against the United States under the FTCA, alleging that the

FDA and CDC acted negligently by “establishing, promulgating and enforcing

rules, regulations, policies, directives, guidelines and practices” that encouraged

doctors in areas with nonfluoridated water to give children fluoride supplements.

The government filed a motion to dismiss, arguing that the district court lacked

subject matter jurisdiction because the United States had not waived its sovereign

                                          2
immunity to torts arising in foreign countries. See 28 U.S.C. § 1346. It also

argued that Smitherman was not allowed to proceed pro se on behalf of her

daughter’s estate.

      The district court adopted a magistrate judge’s amended report, which

recommended granting the government’s motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6) because Smitherman could not proceed pro se on behalf

of her daughter’s estate. This is Smitherman’s appeal.

                                        II.

      We review de novo a district court’s grant of a motion to dismiss under Rule

12(b)(6). See Ironworkers Local Union 68 v. AstraZeneca Pharm., LP, 634 F.3d

1235, 1259 (11th Cir. 2011). And we must inquire into subject matter jurisdiction

whenever it might be lacking. See Mallory & Evans Contractors & Eng’rs, LLC

v. Tuskegee Univ., 663 F.3d 1304, 1304 (11th Cir. 2011).

      The United States, as sovereign, is immune from suit unless it consents to

be sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351

(1980). By enacting the FTCA, the United States waived its immunity to suit for

certain torts committed by its employees acting within the scope of their

employment, and it vested exclusive jurisdiction over those suits in the United

States District Courts. See 28 U.S.C. § 1346(b)(1).

                                         3
      The United States did not, however, waive its immunity to claims “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.” Id. § 2680(a).

A discretionary function “involves an element of judgment or choice.” Berkovitz

v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1959 (1988). “The exception,

properly construed, protects only governmental actions and decisions based on

considerations of public policy.” Id. at 537, 108 S.Ct. at 1959. “Where there is

room for policy judgment and decision there is discretion.” Id. (quotation marks

omitted).

      Smitherman alleges that employees of the CDC and the FDA acted

negligently in setting a policy that encouraged doctors to give some children

sodium fluoride as a dietary supplement. The United States has not waived its

sovereign immunity for this type of decision because it “involves an element of

judgment or choice” and is a “governmental action[] or decision[] based on

considerations of public policy.” See 28 U.S.C. § 2680(a); Berkovitz, 486 U.S. at

536, 108 S.Ct. at 1959.

      The district court lacked subject matter jurisdiction over Smitherman’s

wrongful death claim because it is barred by the United States’ sovereign

                                         4
immunity. Because the district court did not dismiss the case for lack of

jurisdiction, we vacate and remand with instructions for it to do so.1

       VACATED AND REMANDED.




       1
          The district court also denied as futile what it construed as Smitherman’s motion to
amend her complaint to allege the wrongful death claim on her own behalf, instead of on behalf
of her daughter’s estate. Because the district court would still lack jurisdiction over the claim if
the district court permitted that amendment, we AFFIRM the district court’s denial of
Smitherman’s motion to amend her complaint.

                                                  5
