                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1435
                                   ___________

Jessica Hinsley, personally and         *
as Guardian Ad Litem for K.M, a minor, *
                                        *
       Appellants,                      *
                                        *  Appeals from the United States
       v.                               *  District Court for the
                                        *  District of North Dakota.
Standing Rock Child Protective Services *
and the Bureau of Indian Affairs        *
                                        *
       Appellees.                       *
                                  __________

                             Submitted: November 15, 2007
                                Filed: February 5, 2008
                                 ___________

Before RILEY, TASHIMA,1 and SMITH, Circuit Judges.
                             ___________

TASHIMA, Circuit Judge.

       Jessica Hinsley appeals the district court’s2 entry of summary judgment against
her in a Federal Tort Claims Act (“FTCA”) action. Hinsley alleges that the Standing
Rock Child Protective Services (“Standing Rock CPS”) negligently placed her half-


      1
      The Honorable A. Wallace Tashima, Circuit Judge for the United States Court
of Appeals for the Ninth Circuit, sitting by designation.
      2
       The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
brother in her home without warning her that he was a child molester, resulting in her
brother’s sexual abuse of Hinsley’s daughter. The district court dismissed the action,
reasoning that the challenged conduct fell within the discretionary function exception
to the FTCA. We affirm the district court.


                                          I.



       Under the Indian Self-Determination and Education Assistance Act (ISDEAA),
tribes and tribal organizations may enter into contracts with the federal government
to assume the administration of programs formerly administered by the federal
government on behalf of the tribe. See 25 U.S.C. § 450f(a)(1). See generally Cohen’s
Handbook of Federal Indian Law § 22.02 (Neil Jessup Newton et al. eds., 2005)
(hereinafter “Cohen”). Such contracts are referred to as self-determination contracts.
See 25 U.S.C. § 450b(j) (defining “self-determination contract”). See generally Cohen
§ 22.02[1] (discussing the genesis of self-determination contracts). The Standing
Rock Sioux Tribe operates, pursuant to a self-determination contract, a Child
Protective Services Agency charged with investigating incidents of child neglect, child
abuse, and sexual abuse of children and empowered to take custody of abused children
and place them with other families. See 25 U.S.C. § 3210(b) (providing that Indian
tribes or tribal organizations can administer child protective services programs
pursuant to a self-determination contract).


      T.C. is a young man who has a history of sexually abusing children. As a
minor, he was in the custody of South Dakota’s Child Protective Services. Shortly
before his eighteenth birthday, Mabel Medicine Crow, T.C.’s case worker in South
Dakota, contacted James McLaughlin, an investigator for the Standing Rock CPS, and
asked him to contact Jessica Hinsley, T.C.’s half sister, to see if T.C. could move in
with Hinsley upon his release from South Dakota’s Child Protective Services.


                                         -2-
McLaughlin was familiar with T.C.’s history: in addition to having previously worked
on T.C.’s case, he was told by Medicine Crow that T.C. had a history of sexually
abusing children and had molested young girls at a foster home in South Dakota, and
that, due to these actions, T.C. was removed from the foster home and placed in a
group home.


       Following his conversation with Medicine Crow, McLaughlin asked Hinsley,3
a mother of three children, whether she would be willing to have T.C. live in her
home.4 Hinsley claims that McLaughlin neither told her about her brother’s past
abuse, nor warned her that T.C. should not be left alone with children.5 Although she
was reluctant to accept another person into her home, Hinsley allowed T.C. to move
in with her.6 Because Hinsley worked full time as a bartender, she relied upon several
babysitters, including T.C., whom she allowed to be alone with her children on several




      3
       McLaughlin was also familiar with Hinsley: earlier in his tenure with the
Standing Rock CPS, he filed for custody of Hinsley, T.C., and their sister after
receiving allegations that their uncle had abused them.
      4
       McLaughlin claims that he drove to Hinsley’s home, whereas, Hinsley, claims
he telephoned her at work.
      5
       McLaughlin, in contrast, contends that he told Hinsley that T.C. was a danger
to small children, warning her that T.C. should not be left alone with young children.
      6
       The particulars of that acceptance are also disputed by the parties. Hinsley
contends that she believed that the Standing Rock CPS formally placed T.C. in her
home even though, as she acknowledges, she voluntarily accepted her brother, never
signed a placement agreement, never received any payments from the Standing Rock
CPS, and was never again contacted by CPS. The Standing Rock CPS, on the other
hand, contends that it never represented to Hinsley that a formal placement was being
made and notes that the Standing Rock Sioux Tribal Court issued an order releasing
T.C. from the custody of the CPS as of his eighteenth birthday.

                                         -3-
occasions. According to Hinsley, T.C. sexually assaulted her three-year-old daughter,
K.M., during these babysitting sessions.



       Hinsley, personally and as guardian ad litem for K.M., brought this FTCA
action against the Standing Rock CPS and the Bureau of Indian Affairs (“BIA”),
alleging that the Standing Rock CPS negligently placed T.C. in her home without
warning her that he was a child molester. The Standing Rock CPS moved for
summary judgment, asserting that its actions were protected by the discretionary
function exception of the FTCA. The district court agreed. See Hinsley v. Standing
Rock Child Protective Servs., 470 F. Supp. 2d 1037, 1040–43 (D.N.D. 2007). Hinsley
timely appeals.


                                           II.


        We review the district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to the nonmoving party. Fed. R. Civ. P. 56(c);
Lewis v. St. Cloud State Univ., 467 F.3d 1133, 1135 (8th Cir. 2006). We will affirm
the district court if there are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. Id.


                                           III.


       It is well settled that the United States may not be sued without its consent. See,
e.g., United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003); Riley
v. United States, 486 F.3d 1030, 1032 (8th Cir. 2007). The FTCA, however, waives
the United States’ historic defense of sovereign immunity and authorizes suits against
the United States for damages


                                           -4-
      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 while acting within the scope of his office or employment,
      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).



        Congress has also consented to suit under the FTCA for “certain claims arising
out of the performance of [Indian] self-determination contracts.” FGS Constructors,
Inc. v. Carlow, 64 F.3d 1230, 1234 (8th Cir. 1995). Tort claims against tribes, tribal
organizations, or their employees, that arise out of the tribe or tribal organization
carrying out a self-determination contract, are considered claims against the United
States and are covered to the full extent of the FTCA. See Department of the Interior
and Related Agencies Appropriations Act, 1991, Pub. L. No. 101-512, Title III, § 314,
104 Stat. 1915, 1959–60 (1990) (codified at 25 U.S.C. § 450f notes); see also 25
U.S.C. § 450f(d); 28 U.S.C. §§ 1346(b), 2671–2680; FGS Constructors, Inc., 64 F.3d
at 1234. See generally BIA Federal Tort Claims Act Coverage General Provisions,
25 C.F.R. §§ 900.180–.188 (2007); Cohen § 22.02[4].


       The FTCA, however, includes a number of exceptions to its broad waiver of
sovereign immunity—and these exceptions apply with equal force to FTCA claims
brought against a tribal organization. See § 314, 104 Stat. at 1959–60 (codified at 25
U.S.C. § 450f notes) (describing how any tort claim brought against a tribal
organization carrying out a self-determination contract will be “afforded the full
protection and coverage of the Federal Tort Claims Act”). The exception relevant to
this case provides that no liability shall lie for “the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal


                                          -5-
agency or an employee of the Government, whether or not the discretion involved be
abused.” 28 U.S.C. § 2680(a). When an alleged act falls within the discretionary
function exception, the federal court lacks subject matter jurisdiction. Dykstra v. U.S.
Bureau of Prisons, 140 F.3d 791, 795 (8th Cir. 1998).


       The purpose of the discretionary function exception is 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.” United States
v. Gaubert, 499 U.S. 315, 323 (1990). This “exception to the FTCA ‘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.’” Dykstra, 140 F.3d at 795 (quoting United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)).


       We employ a two-part test to determine whether the discretionary function
exception applies. See Riley, 486 F.3d at 1032 (citing Berkovitz v. United States, 486
U.S. 531, 536 (1988)). “First, the conduct at issue must be discretionary, involving
‘an element of judgment or choice,’” id. (quoting Berkovitz, 486 U.S. at 536), and not
controlled by mandatory statutes or regulations, Gaubert, 499 U.S. at 328–29. If the
employee violated a mandatory statute, regulation, or policy, the conduct does not
involve an element of judgment or choice, and therefore, the conduct is not sheltered
from liability under the discretionary function exception. See Riley, 486 F.3d at 1032.
If, on the other hand, no mandate exists, the action is considered a product of
judgment or choice and the first step is satisfied. Dykstra, 140 F.3d at 795. Under the
second part of the test, we determine whether the judgment or choice was based on
considerations of public policy. Gaubert, 499 U.S. at 325. If the challenged action
was based on a judgment grounded in social, economic, or political policy, the
discretionary function exception applies. Dykstra, 140 F.3d at 795; see also Gaubert,



                                          -6-
499 U.S. at 325.7 With that background, we turn to the applicability of the
discretionary function exception to the instant case.


       Hinsley bases her negligence claim on the Standing Rock CPS’s failure to warn
her of T.C.’s dangerous propensities.8 We have found no statute, policy, or regulation
mandating the Standing Rock CPS to warn the public or a third-party about the
sexually abusive proclivities of a person who is being discharged from the CPS, nor
has Hinsley alerted us to such a mandate. Therefore, the first part of the discretionary
function analysis is satisfied.


       With respect to the second part of the test, Hinsley urges this court to hold that
the discretionary function exception is inapplicable because the strong policy interest
in preventing child abuse demands that a warning be given. This argument betrays
her case: it exposes the fact that the decision to warn is, at its core, a policy decision.
The decision to release T.C. to his sister without a warning involves an effort to


      7
        The individual government employee need not have consciously considered
any policy factors. C.R.S. by D.B.S. v. United States, 11 F.3d 791, 797–98 (8th Cir.
1993). “The judgment or decision need only be susceptible to policy analysis,
regardless of whether social, economic, or political policy was ever actually taken into
account, for the exception to be triggered.” Demery v. U.S. Dep’t of Interior, 357 F.3d
830, 833 (8th Cir. 2004). “The focus of the inquiry is 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.” Gaubert, 499 U.S. at 325. In cases
alleging negligent failure to warn “[i]t is also irrelevant whether the alleged failure to
warn was a matter of ‘deliberate choice,’ or a mere oversight.” Allen v. United States,
816 F.2d 1417, 1422 n.5 (10th Cir. 1987).
      8
      Because the district court granted the government’s motion for summary
judgment, we view the facts in the light most favorable to Hinsley, and therefore
assume that McLaughlin failed to warn Hinsley of her brother’s dangerous
propensities.

                                           -7-
balance the interest in maintaining the confidentiality of T.C.’s past actions against the
safety concerns that arise from placing a known sexual abuser in a home filled with
children. As the district court correctly noted, “[s]uch decisions clearly implicate
competing and legitimate concerns of public safety, the safety of third persons into
whose homes an individual is placed, the need to maintain the confidentiality of a
juvenile’s records, and the juvenile’s future interests upon release.” Hinsley, 470 F.
Supp. 2d at 1043. Policymakers may disagree about how those interests should be
balanced, but those decisions lie with policymakers and CPS employees—the FTCA
does not empower judges to second guess such decisions via tort action. See Gaubert,
499 U.S. at 323. We therefore conclude that the second part of the discretionary
function exception test has been satisfied.


                                           IV.


       Hinsley’s allegations make out a very sympathetic case for her and her
daughter. When Congress waived the government’s sovereign immunity under the
FTCA, however, it elected to preclude liability for administrative decisions grounded
in social policy. In doing so, Congress accepted the possibility that this exemption
would sometimes deliver harsh results. Because the discretionary function exception
applies to the Standing Rock CPS’s decision not to warn Hinsley, the judgment of the
district court is
AFFIRMED.
                        ______________________________




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