          United States Court of Appeals
                      For the First Circuit


No. 17-2137

                       JOSEPH S. HAJDUSEK,

                      Plaintiff, Appellant,

                                v.

                    UNITED STATES OF AMERICA,

                       Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                              Before

                  Torruella, Selya, and Kayatta,
                          Circuit Judges.


     David N. Damick, with whom The Law Offices of David N. Damick
and Thomas P. Colantuono were on brief, for appellant.
     Courtney L. Dixon, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, with whom Chad A. Readler,
Acting Assistant Attorney General, John Farley, Acting United
States Attorney, and Mark B. Stern, Attorney, Appellate Staff,
Civil Division, United States Department of Justice, were on brief,
for appellee.


                          July 11, 2018
             KAYATTA, Circuit Judge.      Joseph Hajdusek participated in

the Marine Corps Delayed Entry Program ("DEP"), a program through

which individuals can sign up to join the Marine Corps but delay

entry in order to better prepare for basic training.                 Hajdusek

alleges that a superior negligently ordered him to undertake an

unreasonable     program   of    physical   activity,     which   ultimately

resulted in serious injuries.       Left disabled and abandoned by the

Corps, he sued the United States under the Federal Tort Claims Act

("FTCA").     The district court concluded that the discretionary

function exception to the FTCA barred the suit and dismissed the

case.   For the following reasons, we must affirm.

                                     I.

             When reviewing a dismissal for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we

"construe the [c]omplaint liberally and treat all well-pleaded

facts   as   true,   according    the   plaintiff   the    benefit    of   all

reasonable inferences."     Murphy v. United States, 45 F.3d 520, 522

(1st Cir. 1995).     In addition to the pleadings, Hajdusek submitted

certain additional materials for the district court to consider in

evaluating its own jurisdiction, including his own declaration and

various Marine Corps documents.           The district court considered

those materials without objection from the government, and the

government makes no objection to our proceeding similarly here, so




                                    - 2 -
we draw the following facts from the complaint as well as from the

additional materials considered by the district court.

           In August 2010, Hajdusek signed up for the Marine Corps

DEP.    The DEP is a program that allows individuals to enlist in

the Marine Corps Reserve up to one year prior to enlisting in the

regular Marine Corps.     Individuals participating in the program

are known as "poolees."     While enrolled in the program, poolees

prepare physically and mentally for their enlistment into the

active-duty Marine Corps.   The program aims to assist in training

and reduce attrition.   One important aspect of the pool program is

particularly relevant here:     Poolees, though affiliated with a

Marine recruiting station, are not active-duty Marines and are not

entitled to Department of Defense type benefits.       As guidance

documents from the Marine Corps state, poolees "are not Marines

yet."

           After participating in the program for several months,

Hajdusek met most of his weight and strength goals, and was

preparing to ship to basic training upon passing a pull-up test.

Prior to this final stage, he went skiing with his family, a trip

approved by one of the Marines supervising the program.     During

this trip, Hajdusek received a phone call from Staff Sergeant

Mikelo, the newly installed manager of his recruiting station,

asking why he had not shown up for a pool event.      Dissatisfied

with Hajdusek's answer, Mikelo ordered him to appear for a physical


                               - 3 -
training session on March 1.         Hajdusek did as he was told.          When

he arrived for the training session, Mikelo put him through a

workout that Hajdusek describes in a declaration as "much longer

and much more strenuous than any other workout I had ever been

given."   During this workout, he did more repetitions than normal

of lunges, pull-ups, push-ups, crunches, and air squats, was given

only two twenty-second water breaks over a two-hour period, and

was made to exercise for at least thirty minutes longer than

normal.    Near   the    end    of   the     session   he   showed    signs   of

overexertion, collapsing several times but nonetheless able to

leave under his own power.

           After spending the ensuing several days essentially

bedridden due to pain, Hajdusek began to experience blurred vision

and nausea.    He was diagnosed with various ailments, including

rhabdomyolysis, a condition caused when muscle tissue dies from

extreme overuse and the dead tissue enters the bloodstream.                This

has left him permanently disabled.

           Hajdusek sued the United States in the District of New

Hampshire, alleging that Mikelo's actions had caused his physical

injuries and disabilities, that these actions were negligent, and

that   pursuant   to    the    Federal     Tort   Claims    Act,     28   U.S.C.

§ 1346(b)(1), he was entitled to damages.          The United States moved

to dismiss on the ground that Hajdusek's claim stemmed from "the

performance of a discretionary function," and since the United


                                     - 4 -
States has not waived sovereign immunity for such claims, the

district court lacked subject matter jurisdiction.    The district

court agreed with the government and dismissed the case.      This

appeal followed.

                                II.

          The FTCA serves as a limited waiver of sovereign immunity

and provides that federal courts:

          shall have exclusive jurisdiction of civil
          actions on claims against the United States,
          for money damages . . . 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 . . . 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).   Central to this appeal is an exception to

this provision, removing from the district courts' jurisdiction

"[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."   Id. § 2680(a).

In evaluating a claim under the FTCA, a court must therefore

determine whether the claim is based on a discretionary function

as contemplated by section 2680; if so, the case must be dismissed

for want of jurisdiction.     We review such dismissals de novo.




                               - 5 -
Evans v. United States, 876 F.3d 375, 381 (1st Cir. 2017), petition

for cert. filed, (U.S. May 4, 2018) (No. 17-1516).

           In conducting the discretionary function inquiry, we use

a "familiar analytic framework."         Shansky v. United States, 164

F.3d 688, 690 (1st Cir. 1999).           First, we "must identify the

conduct that allegedly caused the harm."       Id. at 690–91.       Second,

we must ask "whether this conduct is of the nature and quality

that Congress, in crafting the discretionary function exception,

sought to shelter from tort liability."        Id. at 691.    The latter

analysis   "encompasses   two   questions:     Is   the   conduct    itself

discretionary?   If so, is the discretion susceptible to policy-

related judgments?"   Id.   The word "susceptible" is critical here;

we do not ask whether the alleged federal tortfeasor was in fact

motivated by a policy concern, but only whether the decision in

question was of the type that policy analysis could inform.             See

United States v. Gaubert, 499 U.S. 315, 325 (1991) ("The focus of

the inquiry is not on the agent's subjective intent in exercising

the discretion conferred by statute or regulation, but on the

nature of the actions taken and on whether they are susceptible to

policy analysis.").       In addition, the fact that a government

official exercises discretion pursuant to regulatory authority

creates a presumption that this discretion was susceptible to

policy analysis and thus protected.       Id. at 324.




                                 - 6 -
           Here, the parties are in agreement that the conduct that

allegedly caused the harm was Mikelo's decision to subject Hajdusek

to the especially arduous workout on the day in question.                   We

therefore turn to the analysis of whether that decision was in

fact   discretionary,    and     whether    the   discretion   involved     was

susceptible to policy analysis.

           We have little trouble answering the first question in

the affirmative.      Guidance from the Marine Corps gives Marines in

charge of the DEP only general instructions concerning how physical

training programs should run.       For example, Marines are instructed

that they should concentrate training activities on "upper body

strength," "abdominal strength," and "aerobic training," and the

guidance   suggests    running    and   hikes,    among   other   things,   as

activities that work toward these goals.             The Marine Corps does

not dictate such details as how often physical training should

occur, of what exercises it should consist, how long it should

last, and how intense it should be.           These decisions are left to

the judgment of the individual Marines in charge of administering

the DEP.   In short, Mikelo exercised discretion in his choice of

an exercise regimen for Hajdusek.

           That brings us to the second, and in this matter, more

complicated, phase of the analysis:           We must decide whether the

discretion Mikelo exercised was susceptible to policy analysis.

As we have previously recognized, answering this question requires


                                    - 7 -
a case-by-case approach, which has, admittedly, "led to some

disarray."    Shansky, 164 F.3d at 693 (comparing a variety of FTCA

discretionary function cases and noting divergent results).                  Both

Hajdusek and the government proffer case law ostensibly supporting

their respective points of view, often relying on the same cases.

For example, both parties rely on Shansky.            In that case, we noted

that there was a distinction between "a professional assessment

undertaken pursuant to a policy of settled priorities," which is

not shielded by the discretionary function exception, and "a fully

discretionary judgment that balances incommensurable values in

order to establish those priorities," which is.                Id. at 694.      We

held that the National Park Service's decision not to place a

handrail and warning signs at a particular facility was shielded

by the discretionary function exception, because it required a

balancing of safety and aesthetic considerations.                 Id. at 693.   We

also noted, however, that "[w]e do not suggest that any conceivable

policy   justification      will   suffice    to    prime   the    discretionary

function pump."     Id. at 692–93.

             Hajdusek   invokes    Shansky     in    arguing      that   Mikelo's

decision    was   nothing   more   than   a   professional        judgment   done

negligently.      In his view, the Marine Corps itself settled all

policy priorities, and Mikelo's actions were mere implementation.

He contends that "no policy was served or implicated in ruining a

potential    recruit,   let   alone   disciplining      someone      who   policy


                                    - 8 -
declared was not to be subjected to military-type discipline."             By

contrast,    the   government    argues    that   Mikelo's    decision    was

informed by the need to balance a variety of policy priorities,

such as preparing poolees for the daunting mental and physical

challenges of basic training, preventing attrition, and using

existing poolees to generate new recruits.            In the government's

view, this decision is analogous to the ones at issue in Fothergill

v. United States, 566 F.3d 248 (1st Cir. 2009).              There, we held

that decisions "about which reasonable persons can differ" and

which are "informed by a need to balance concerns about a myriad

of [policy] factors" are protected by the discretionary function

exception.    Id. at 253.

             As Shansky makes clear, deciding whether a government

agent's   action   is   susceptible    to    policy   analysis    is     often

challenging, and this case is no exception.           However, based upon

the record as a whole, we conclude that the government has the

better of the argument.         Determining just how hard a potential

Marine should exercise, and whether, for example, he should do so

for 120 or 90 minutes, calls for weighing the policy goals that

are furthered by strenuous, even exhaustive exercise against the

goals of avoiding attrition through injury or otherwise.           Work the

poolees too much, and the Corps loses potential new members; work

them too little, and preparedness and discipline might suffer.             We

doubt that Congress intended judges to dictate this balance,


                                   - 9 -
especially given that judges would only be reviewing claims of

error in one direction.    See Richard H. Seamon, Causation and the

Discretionary Function Exception to the Federal Tort Claims Act,

30 U.C. Davis L. Rev. 691, 703 (1997) (discussing the purpose of

the exception and collecting cases).

             Hajdusek observes that Marine Corps guidance documents

relating to the DEP suggest that the government may be liable for

injuries     occurring   during    certain     "high-risk"   activities,

suggesting that these regulations support a finding that the FTCA

applies to Marine Corps actions such as those giving rise to this

matter.      This fact does not save his case, however, for two

reasons.     First, sovereign immunity waivers such as the FTCA are

"strictly construed in favor of the government."          Gordo-González

v. United States, 873 F.3d 32, 35 (1st Cir. 2017).           Because the

decisions involved here -- decisions concerning the day-to-day

management of a military training program, albeit one not aimed at

active duty troops -- are of the type typically protected by

sovereign immunity, we are unable to find a waiver by a mere

implication in guidance documents.         Second, the relevant guidance

seems to pertain to activities that are high-risk by their nature

(such as firing weapons or rope climbing), rather than physical

exercise rendered dangerous only by its marginal duration and

intensity.    So even if we were to view the guidance as indicating

a waiver of sovereign immunity for claims based on injuries


                                  - 10 -
resulting from certain activities, it is not at all clear that

negligent supervision of exercise would be covered by such a

waiver.

            Hajdusek also invokes Justice Scalia's concurrence in

Gaubert for the proposition that whether an allegedly negligent

decision occurred at the "operational" level versus the "planning

or policy" level is relevant to whether it is shielded by the

discretionary function exception.   This argument fails, again for

two independent reasons.   First, Justice Scalia's concurrence was

just that: a concurrence. The controlling opinion in Gaubert makes

clear that simply because an action takes place at an "operational"

level does not mean that it cannot be shielded by the discretionary

function exception.1    499 U.S. at 326.     Second, even Justice

Scalia's preferred analysis does not compel a finding in favor of

Hajdusek.   Justice Scalia emphasized that in his view, the proper

analysis focuses not on whether the government agent's decision

could be informed by policy analysis at some level, but whether

the agent's job entailed performing that analysis.    Thus, "[t]he

dock foreman's decision to store bags of fertilizer in a highly

compact fashion is not protected by this exception because, even




     1 We note that as of today, a petition for certiorari is
pending in Evans, urging the Supreme Court to adopt Justice
Scalia's concurrence as the new standard for adjudicating the
discretionary function exception.     See Petition for Writ of
Certiorari, Evans v. United States (No. 17-1516).


                              - 11 -
if he carefully calculated considerations of cost to the Government

vs. safety, it was not his responsibility to ponder such things;

the Secretary of Agriculture's decision to the same effect is

protected, because weighing those considerations is his task."

Id. at 335–36 (Scalia, J., concurring in part and concurring in

the judgment).   Here, Mikelo's task, as the Marine supervising

Hajdusek and his fellow poolees, included weighing considerations

such as adequate preparation of poolees and attrition avoidance in

designing a workout program.   Accordingly, even if we were to view

Justice Scalia's concurrence as controlling, the result here would

not change.

          Threaded throughout Hajdusek's arguments is a concern

that if the government prevails, the military will have a license

to behave unreasonably in its interactions with individuals who,

although military-adjacent, are not active-duty members of the

military able to access Department of Defense or Veterans Affairs

care when injured. In Hajdusek's view, a ruling for the government

has the practical effect of creating a world where individuals can

be injured by negligent military actors and have no recourse, and

the military will have no incentive to give due weight to the risk

of serious injury.   In the face of this concern, we emphasize that

our decision today is, as all FTCA discretionary function exception

cases must be, cabined to the record before us.   As the government

conceded at oral argument, certain decisions by government actors,


                               - 12 -
though nominally discretionary, may pass a threshold of objective

unreasonableness such that no reasonable observer would see them

as susceptible to policy analysis.       We do not rule out the

possibility that a Marine running a pool program could make some

decision falling into this category.     For example, if a Marine

decided that the only way to toughen up poolees was to have them

jump off a twenty-foot high cliff onto concrete, we would have no

qualms holding that even though a desire to serve Marine Corps

goals of preparing poolees for basic training may have animated

the decision, it was simply not a decision that in any objectively

reasonable sense could be said to be informed by policy analysis.

In that case, the unreasonableness of the activity would be clearly

apparent ex ante to any reasonable observer.   And such a decision

would not constitute a weighing of safety concerns versus intensity

concerns; it would amount to a complete rejection of the former in

favor of the latter, contrary to guidance from the Marines.

          Returning from the hypothetical to the actual, however,

we recognize that Hajdusek does not allege anything close to the

situation described above.   The complaint itself only alleges that

Mikelo exercised Hajdusek unreasonably hard.    It does not allege

facts plausibly supporting an inference that a Marine supervising

the activity would have reason to know ex ante that the exercise

was sufficiently likely to cause serious injury as to deem it the

product of a rejection of a policy goal rather than a balancing of


                              - 13 -
such goals.      The additional materials submitted by Hajdusek offer

little   more.      At   most,   they   support   a   theory   that   Mikelo's

motivation was to discipline Hajdusek.            But even assuming this to

be true, the use of arduous physical exercise to discipline an

individual for a perceived failing would seem to be an appropriate

tool of boot camp preparation, which is a primary goal of the DEP.

Latching on to the "punishment" theory, Hajdusek suggests that the

Marines in charge of the pool program have no authority to utilize

physical discipline on a poolee.         However, nowhere in the guidance

documents is physical discipline explicitly prohibited.               The best

language Hajdusek can offer is language from the guidance documents

instructing that Marines should not "establish a Drill Instructor

to recruit relationship" but rather should be "friendly but firm"

and "[s]trive for a relationship similar to that of a teacher and

a student."      Marines must "make discretionary judgments about how

to apply concretely the aspirational goal embedded in th[is]

statement."      Shansky, 164 F.3d at 691.

           This language simply does not allow the inference of a

blanket "no physical discipline" rule.            While the results in this

case are disturbing, one can easily imagine more run-of-the-mill

acts of physical discipline raising no eyebrows.           If a poolee were

late to a physical training session and ordered to run a mile as

a penalty, we would not see that order as somehow establishing an

impermissible "Drill Instructor" relationship.                 Similarly, we


                                    - 14 -
would not find it so out-of-bounds as to go beyond the scope of

discretionary judgment.     The facts alleged in this case paint a

picture of a workout that was unusually intense, perhaps even

unreasonably so, but not so objectively beyond the pale that it

could not have been informed by policy analysis.            Accordingly,

though we acknowledge that there may be a line beyond which

discretionary   decisions   lose    protection   due   to   their   patent

unreasonableness, the allegations here fall short of that line.

                                   III.

          Hajdusek's case is a sympathetic one.         He attempted to

serve his country, was injured in that attempt, and now, due to

the quirk of his not-quite-Marine status, the services normally

available to injured servicemen and women are unavailable to him.

Nonetheless, Congress has decreed that the federal courts cannot

use tort claims to second-guess the discretionary choices of

federal agents who implement the government's policy choices.          In

this specific instance, Congress's command means that we cannot

second-guess the decision of a Marine about how hard to work out

a potential recruit at the end of a training program, at least in

the absence of a patent abandonment of any effort to balance Marine

Corps policy goals. We therefore affirm the judgment of dismissal.




                               - 15 -
