UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELLEN HIBBLE, Mrs.,
Plaintiff-Appellant,

v.                                                                      No. 96-2180

UNITED STATES OF AMERICA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CA-96-465-A)

Argued: October 27, 1997

Decided: January 7, 1998

Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge,
and MERHIGE, Senior United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Hamilton wrote
a dissenting opinion.

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COUNSEL

ARGUED: Karl George Feissner, FEISSNER & SLATKIN, Wash-
ington, D.C.; Paul Howard Zukerberg, Washington, D.C., for Appel-
lant. Thomas Mercer Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Helen
F. Fahey, United States Attorney, James E. Macklin, Special Assistant
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Ellen R. Hibble appeals the district court's dismissal of her Federal
Tort Claims Act suit for lack of subject matter jurisdiction pursuant
to Fed. R. Civ. P. 12(b)(1). Finding no error, we affirm.

I.

During a visit to Arlington National Cemetery, Ellen R. Hibble
("Ms. Hibble") fell down a set of stairs on the "Custis Walk," fractur-
ing both ankles and breaking her right leg. The location on Custis
Walk where Ms. Hibble fell was covered with leaves which concealed
broken concrete and round concrete stones that had broken off from
the walkway. No signs or barriers were erected to warn the public of
any potential hazard.

Ms. Hibble subsequently filed suit for her injuries under the Fed-
eral Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq.
Prior to trial, the government moved to dismiss her complaint for lack
of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1),
arguing that the action was barred under the discretionary function
exception to the FTCA, 28 U.S.C. § 2680(a). The district court
granted the government's motion, holding that the discretionary func-
tion exception applied in the instant case because (1) no federal stat-
ute, regulation, or policy specifically prescribed a course of action for
the Superintendent of Arlington National Cemetery, thus leaving the
operations of the cemetery to his discretion; and (2) the Superinten-
dent's discretionary decisions were based on considerations of public
policy.

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II.

The FTCA provides a limited waiver of federal sovereign immu-
nity for tort claims. United States v. Orleans , 425 U.S. 807 (1976);
Baum v. United States, 986 F.2d 716 (4th Cir. 1993). There are sev-
eral enumerated exceptions to this waiver, however, the most relevant
for purposes of this appeal being the discretionary function exception.
28 U.S.C. § 2680(a).1 Pursuant to the discretionary function excep-
tion, a court lacks subject matter jurisdiction over any suit concerning
government conduct that (1) involves an element of judgment or
choice, and (2) is an action or decision based on considerations of
public policy. Berkovitz v. United States, 486 U.S. 531, 537 (1988);
United States v. Gaubert, 499 U.S. 315, 323 (1991). The requirement
of judgment or choice is not satisfied, however, if"`a federal statute,
regulation, or policy specifically proscribes a course of action for an
employee to follow,' because `the employee has no rightful option but
to adhere to the directive.'" Gaubert, 499 U.S. at 322 (quoting
Berkovitz, 486 U.S. at 536). In fact, if a regulation mandates particular
conduct and the government employee violates that regulation, "there
will be no shelter from liability because there is no room for choice
and the action will be contrary to policy." Id. at 324.

Ms. Hibble argues that with respect to her situation, there was an
applicable regulation or policy, namely Army Pamphlet ("AP") 290-
5, which required either the immediate repair of the hazardous condi-
tions on Custis Walk, or the erection of barriers or warning signs.
Although it states in the introduction to AP 290-5 that "[t]his pam-
phlet describes the procedures and policies for the administration,
operation, and maintenance of Arlington National Cemetery," it also
explicitly states that AP 290-5 is merely "a guide" and not a manda-
tory directive. AP 290-5. Furthermore, Army Regulation ("AR") 25-
30 makes clear that pamphlets2 such as AP 290-5 are not included
_________________________________________________________________
1 Under 28 U.S.C. § 2680(a), federal sovereign immunity is not waived
for:

          [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 the federal agency or an employee of the Government,
          whether or not the discretion involved be abused.
2 AR 25-30 defines a Department of the Army Pamphlet as "[a] perma-
nent instructional or informational publication." AR 25-30, ch. 2, § 2 at
111 (emphasis added).

                    3
among the list of "publications that will be used to issue departmental
policy." AR 25-30, ch. 2, § 1, 2-2b. Thus, contrary to Ms. Hibble's
assertion, we find that AP 290-5 does not qualify as the sort of "fed-
eral statute, regulation, or policy" which would preclude the applica-
tion of the discretionary function exception. There being no
mandatory statute, regulation, or policy specifically prescribing a
course of action for the Superintendent of Arlington National Ceme-
tery, we find that the first prong of the Berkovitz-Gaubert test is satis-
fied.

As to the second prong--that the discretionary decisions be based
on public policy considerations--we concur with the district court's
findings. Decisions regarding leaf removal, the maintenance and
repair of grounds and walkways, the posting of warning signs, and the
closure of portions of the cemetery are inextricably tied to a variety
of public policy considerations--including balancing public access
with public safety, historical and cultural preservation, fostering a
somber and reflective atmosphere, and conserving natural as well as
fiscal resources.

Accordingly, we find that the district court correctly determined
that the discretionary function exception applies in the instant case
and properly granted the government's Motion to Dismiss.

AFFIRMED

HAMILTON, Circuit Judge, dissenting:

The government knew as far back as 1991 that Custis Walk pres-
ented a known danger to pedestrians using the walk. 1 Despite its
_________________________________________________________________
1 The evidence on this point is indisputable. After performing a detailed
site inspection of Custis Walk at the request of the Superintendent of the
Cemetery, Hank Masser, an engineer with the Army Corps of Engineers,
concluded that "[d]ue to its deteriorated condition and heavy volume of
tourist traffic, the walk is a potential safety hazard to the public." (J.A.
176). Furthermore, just one month after Ms. Hibble fell, the Cemetery's
chief engineer, the Chief of the Army Corps of Engineers, the Chief of
the Army Contracting Division, and the Chief of the Army Construction
Operations Division all agreed to a written restoration plan for Custis
Walk. Specifically, that plan states: "Due to the deteriorated condition of
the walk it has become a safety hazard to the public." (J.A. 283).

                     4
knowledge of the danger, the government failed to warn the public of
its existence, even though leaves covering Custis Walk in the fall and
winter months obscured the danger. As a consequence, Ms. Hibble,
who was at the Arlington National Cemetery visiting the graves of
some family members in December 1994, slipped and fell on the leaf
covered Custis Walk, the only pathway back to her car, breaking both
ankles and her right leg. As a result of her injuries, Ms. Hibble is dis-
abled.

The majority concludes that the government met the second prong
of the Berkovitz-Gaubert analysis2 because "[d]ecisions regarding leaf
removal, the maintenance and repair of grounds and walkways, the
posting of warning signs, and the closure of portions of the cemetery
are inextricably tied to a variety of public policy considerations--
including balancing public access with public safety, historical and
cultural preservation, fostering a somber and reflective atmosphere,
and conserving natural as well as fiscal resources." Ante at 4. Criti-
cally, the majority ignores that this case involves a failure to warn.
FTCA failure-to-warn cases involve "considerations of safety, not
public policy." Faber v. United States, 56 F.3d 1122, 1125 (9th Cir.
1995). Accordingly, in FTCA failure-to-warn cases, the discretionary
function exception is limited "to those unusual situations where the
government was required to engage in broad, policy-making activities
or to consider unique social, economic, and political circumstances in
the course of making judgments related to safety." Id.

In this case, the government was not called upon to make broad
policy-based decisions and no unique circumstances are present. This
case is about the government's failure to warn Ms. Hibble of the dan-
ger that Custis Walk presented to pedestrians. The circumstances of
this case are no different than a tort claim against a private individual
who has failed to warn of a known danger on his or her property.
When, as in this case, the governmental negligence is essentially iden-
tical to that performed by a private citizen, no broad policy decision
or unique circumstances are present. Accordingly, the government
failed to meet the second prong of the Berkovitz-Gaubert analysis. I,
therefore, respectfully dissent.
_________________________________________________________________
2 I agree with the majority that the government met the first prong of
the Berkovitz-Gaubert analysis.

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