                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 07-1256


JOHN STEVEN LEROSE; REBECCA LAUREN LEROSE-SWEENEY;       FRANK
GIGLIOTTI; EUGENE FRANCIS CONNELLY; RONALD AMATI,

                 Plaintiffs - Appellants,

           v.


UNITED STATES OF AMERICA,

                 Defendant - Appellee,

           and


WILLIAM D. COGER, JR.,

                 Defendant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  John T. Copenhaver,
Jr., District Judge. (2:03-cv-02372)


Argued:   March 18, 2008                    Decided:   July 10, 2008


Before MICHAEL and GREGORY, Circuit Judges, and David R. HANSEN,
Senior Circuit Judge of the United States Court of Appeals for
the Eighth Circuit, sitting by designation.


Affirmed by unpublished opinion.       Judge Gregory wrote the
opinion, in which Judge Michael and Senior Judge Hansen joined.
ARGUED: Eric Bruce Snyder, BAILEY & GLASSER, L.L.P., Charleston,
West Virginia, for Appellants.   Fred B. Westfall, Jr.,   OFFICE
OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.   ON BRIEF: Benjamin L. Bailey, BAILEY & GLASSER,
L.L.P., Charleston, West Virginia, for Appellants.    Charles T.
Miller, United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

       John    LeRose,       Rebecca          LeRose-Sweeney,           Frank       Gigliotti,

Eugene Connelly and Ronald Amati (“Plaintiffs”) filed a suit

against the United States of America (“United States”) under the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671 et

seq.,     asserting       that        the    United      States        negligently        hired,

retained,      and     supervised           William      Coger    (“Coger”),         a    former

federal correctional officer, who extorted, inter alia, money

from    the    Plaintiffs.              Plaintiffs        also     assert       a    vicarious

liability      claim      against       the    United      States       based       on    Coger’s

alleged    misconduct.            The       district      court    granted          the   United

States’s       motion      to     dismiss          for    lack     of        subject       matter

jurisdiction based on the discretionary function exception to

the FTCA.      On appeal, Plaintiffs contend that the district court

erred     by   shifting         the    burden       of    proof     to       them    that    the

discretionary function exception did not apply.                              Plaintiffs also

argue that the district court incorrectly held that under West

Virginia law, Coger’s alleged conduct was outside the scope of

employment.          We    disagree          and    affirm       the     district         court’s

decisions.


                                               I.

       Plaintiffs       asserted        negligent         hiring,        supervision,        and

retention      claims      under       the     FTCA      against       the    United      States


                                                3
arising from events that allegedly transpired at FCI Morgantown,

a   federal        prison,    and     involved    Coger,    a    former      correctional

officer       at    FCI    Morgantown.      Plaintiffs          contended     that    Coger

inflicted          intentional        emotional     distress          upon     them     “by

attempting to extort and extorting money and other property from

each     of    them.”         Coger     allegedly    demanded        a     truck,    money,

employment outside the prison, and football tickets among other

things.

       The     United        States     denied    Plaintiffs’         allegations       and

contended that Plaintiffs’ claims should be dismissed on summary

judgment and/or lack of subject matter jurisdiction.                          The United

States    argued      that     Plaintiffs’       theories       of   negligent      hiring,

supervision,         and     retention    were    barred    by       the   discretionary

function exception to the FTCA.                  In addition, the United States

asserted that it was not vicariously liable for Coger’s alleged

misconduct because he had clearly acted beyond the scope of his

employment as a correctional officer and had engaged in improper

actions for his own purely personal motives.

       The district court granted the United States’s motion to

dismiss for lack of subject matter jurisdiction based on the

discretionary function exception to the FTCA found in 28 U.S.C.

§ 2680(a) and dismissed the Plaintiffs’ claims for negligent

hiring, supervision, and retention against the United States.

The district court also granted the United States’s motion for

                                             4
summary      judgment    with     regard    to     Plaintiffs’            claim      based    on

vicarious      liability     because       Coger    acted          purely      in    his     own

personal interests and outside the scope of his employment with

the United States and Bureau of Prisons (“BOP”).                          (J.A. 720-67.)

       Plaintiffs       subsequently       filed    a    notice          of    appeal      with

regard to the district court’s order.                   We dismissed that appeal,

ruling      that   Plaintiffs’     did     not   appeal        a    final      order    or    an

otherwise      appealable    interlocutory         or    collateral            order.        The

district court entered a final judgment in favor of the United

States pursuant to Federal Rules of Civil Procedure Rule 54(b).

Plaintiffs then filed a notice of appeal.



                                           II.

       On    appeal,     Plaintiffs      contend        that       the    district      court

erred:      (1) by placing the burden of proof on them to establish

that the discretionary function exception, 28 U.S.C. § 2680(a)

did    not     deprive      the    district        court           of     subject       matter

jurisdiction under 28 U.S.C. § 1346(b)(1) of the FTCA; (2) by

improperly granting the United States’s motion to dismiss for

lack   of     subject    matter    jurisdiction;          and       (3)       by    improperly

granting the United States’s motion for summary judgment on the

Plaintiffs’ vicarious liability claim.                    We address each of the

Plaintiffs’ claims below seriatim.



                                            5
                                                   A.

       Plaintiffs argue the district court improperly placed the

burden       on   them        to     prove      that        the    discretionary       function

exemption under the FTCA did not apply.                                The FTCA creates a

limited      waiver      of       the   United      States’s        sovereign    immunity      by

authorizing damage actions for injuries caused by the tortious

conduct of federal employees acting within the scope of their

employment,       when        a    private      person       would    be   liable     for    such

conduct under state law.                      See 28 U.S.C.A. § 1346(b)(1).                  This

waiver of sovereign immunity, however, is subject to exceptions.

“The     most      important            of     these        [exceptions]        ...    is     the

discretionary       function            exception,”         McMellon    v.    United   States,

387 F.3d 329, 335 (4th Cir. 2004) (en banc), cert. denied, 544

U.S. 974, 125 S.Ct. 1828 (2005), which provides that the United

States    is      not    liable         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 a federal agency

or an employee of the Government, whether or not the discretion

involved be abused,” 28 U.S.C.A. § 2680(a).

       The    discretionary             function        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

                                                   6
(Varig Airlines), 467 U.S. 797, 808 (1984).                            Congress enacted

this     exception        “to       prevent        judicial        second-guessing        of

legislative      and     administrative            decisions       grounded   in    social,

economic, and political policy through the medium of an action

in tort ... [and] to protect the Government from liability that

would seriously handicap efficient government operations.”                               Id.

at 814 (internal quotation marks omitted).

       In Welch v. United States, 409 F.3d 646 (4th Cir. 2005), we

ruled that the plaintiffs bore the burden of proof to show an

unequivocal waiver of sovereign immunity exists and to show that

none of the FTCA’s waiver exceptions apply.                          However, Plaintiffs

in    this   case   attempt         to   get   around        our    clear    precedent    by

arguing that because Welch was decided in the context of the due

care   exemption,        it    is   distinguishable           from    their    case   which

concerns the discretionary function exemption.                              We find their

argument unpersuasive because our holding in Welch clearly dealt

with all FTCA exemptions.                See also Williams v. United States,

50 F.3d 299, 304 (4th Cir. 1995) (“plaintiff bears the burden of

persuasion          if          subject             matter           jurisdiction         is

challenged...because ‘the party who sues the United States bears

the     burden      of        pointing     to...an       unequivocal          waiver      of

immunity’”).




                                               7
                                                   B.

        Next, Plaintiffs contend that the district court improperly

granted      the        United    States’s         motion       to     dismiss         for     lack    of

subject       matter       jurisdiction            because       the      Plaintiffs          did     not

establish         that    the     discretionary            function         exemption          did    not

apply.       We review a grant of dismissal under Federal Rules of

Civil    Procedure          Rule       12    (b)(1)       for     lack      of       subject    matter

jurisdiction de novo.                  Evans v. B.F. Perkins Co., 166 F.3d 642,

647 (4th Cir. 1999).                   As we stated above, plaintiffs have the

burden       in    an    FTCA     case       to    prove     an       unequivocal        waiver        of

sovereign          immunity        and       the        existence         of     subject        matter

jurisdiction.            Welch, 409 F.3d at 650-51.

        To    determine          whether      conduct           by    a     federal      agency        or

employee fits within the discretionary function exception, we

must first decide whether the challenged conduct “involves an

element of judgment or choice.”                         Berkovitz v. United States, 486

U.S. 531, 536, 108 S.Ct. 1954 (1988); see Id. (explaining that

“the    discretionary            function         exception          will      not    apply     when    a

federal statute, regulation, or policy specifically prescribes a

course       of    action        for    an    employee          to     follow”        because        “the

employee          has     no     rightful          option       but       to     adhere        to     the

directive”).             If the conduct does involve such discretionary

judgment, then we must determine “whether that judgment is of

the kind that the discretionary function exception was designed

                                                    8
to shield,” i.e., whether the challenged action is “based on

considerations of public policy.”                Id. at 536-37.       This inquiry

focuses “not on the agent’s subjective intent in exercising the

discretion . . ., but on the nature of the actions taken and on

whether they are susceptible to policy analysis.”                     United States

v. Gaubert, 499 U.S. 315, 325 (1991).                Thus, “a reviewing court

in the usual case is to look to the nature of the challenged

decision in an objective, or general sense, and ask whether that

decision is one which we would expect inherently to be grounded

in considerations of policy.”                 Baum v. United States, 986 F.2d

716,     720-21     (4th     Cir.1993).          Moreover,     when    a   statute,

regulation, or agency guideline permits 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.

       The BOP’s decisions regarding the hiring, supervision and

retention of Coger are precisely the type of decisions that are

protected       under     the    discretionary      function    exception.          We

previously        decided       that   government     employers’       hiring      and

supervisory       decisions      are   discretionary    functions.         Suter    v.

United States, 441 F.3d 306, 312 n.6 (4th Cir. 2006).                              The

hiring     of      an     employee      involves     several      public     policy

considerations including the weighing of the qualifications of

candidates,        weighing       of    the     backgrounds      of     applicants,

                                          9
consideration     of    staffing    requirements,       evaluation      of   the

experience   of    candidates,      and    assessment      of   budgetary    and

economic considerations.       Because this process is multi-faceted,

it is precisely the type of decision that Congress intended to

shield   from     liability    through      the    discretionary        function

exception.        The    district      court      properly      dismissed    the

Plaintiffs’ negligent hiring, supervision and retention claim.

                                      C.

     Finally,     Plaintiffs   argue      the   district     court    improperly

granted summary judgment on their vicarious liability claim.                  We

review a district court’s grant of summary judgment de novo.

Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006).                 Under West

Virginia law, an employer cannot be held vicariously liable for

an employee’s misconduct if the employee engaged in criminal

misconduct for his or her own purpose and interest.                  In Foodland

v. State, 532 S.E.2d 661 (W. Va. 2000), the Supreme Court of

Appeals of West Virginia defined the term “scope of employment”

under West Virginia law:

     “Scope of employment” is a relative term and requires
     a    consideration   of    surrounding  circumstances,
     including the character of the employment, the nature
     of the wrongful deed, the time and place of its
     commission and the purpose of the act.

     In general terms, it may be said that an act is within
     the course of employment, if:     (1) It is something
     fairly and naturally incident to the business and (2)
     it is done while the servant was engaged upon the
     master’s business and is done, although mistakenly or

                                      10
      ill-advisedly, with a view to further the master’s
      interests, or from some impulse or emotion which
      naturally grew out of or was incident to the attempt
      to perform the master’s business, and did not arise
      wholly from some external, independent and personal
      motive on the part of the servant to do the act upon
      his own account.

In Foodland, a store employee stole money from “WIC”, a special

supplemental nutrition program for women, infants and children.

The   Supreme     Court    of     Appeals       of    West        Virginia    found     that

“[e]mployee theft [was] certainly not naturally incident to the

owner’s business and even though the act was done while the

cashier was engaged in the owner’s business, the theft was not

done with a view to further the owner’s interests.                             The theft

arose from a personal motive on the part of the cashier to

further   her     own    interests.         Under          these    circumstances,       the

employee theft from the WIC program simply does not fit within

her scope of employment.”             Foodland, 532 S.E.2d at 665.

      The alleged misconduct in this case was clearly for Coger’s

own   personal     interests.           His     demand        for     a   truck,      money,

employment      outside     the       prison,        and     football      tickets      were

obviously based on his personal motives and were an attempt to

derive benefits for his own personal gain.                         His threats and acts

of intimidation were not designed to further the management and

operation    of   the     BOP   but    rather        his    own    personal    interests.

Because   this    type     of   conduct     was       specifically        barred   by    the

BOP’s rules of conduct, was obviously for Coger’s own personal

                                          11
gain, and was not intended to benefit the BOP or the United

States, the district court correctly concluded that the United

States   cannot   be   vicariously    liable   for   such   misconduct.

Coger’s actions were beyond the scope of his employment with the

BOP and thus could not be imputed to the United States.            The

district court properly granted summary judgment in favor of the

United States on the Plaintiffs’ vicarious liability claim.



                                III.

     For the foregoing reasons, we affirm the district court’s

decisions.

                                                              AFFIRMED




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