                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-1053



RICHARD   LEE   SMITH;   NANCY   G.   SMITH,
Individually and as Personal Representatives
of the Estate of Richard Hadaway Smith,
Deceased,

                                            Plaintiffs - Appellants,

           versus


WASHINGTON     METROPOLITAN     AREA     TRANSIT
AUTHORITY,

                                               Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-99-2187-AW)


Argued:   March 15, 2006                      Decided:   June 2, 2006


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Jack Arthur Gold, KARP, FROSH, LAPIDUS, WIGODSKY & NORWIND,
P.A., Rockville, Maryland, for Appellants.       Gerard J. Stief,
Associate General Counsel, WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY, Washington, D.C., for Appellee. ON BRIEF: Lawrence S.
Lapidus, KARP, FROSH, LAPIDUS, WIGODSKY & NORWIND, P.A., Rockville,
Maryland, for Appellants.     Carol B. O’Keeffe, Acting General
Counsel, Mark F. Sullivan, Deputy General Counsel, Jay R. Goldman,
Associate General Counsel, WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

      Richard L. and Nancy G. Smith (together, the “Plaintiffs”)

appeal    from      the   summary        judgment   awarded     to    the   Washington

Metropolitan Area Transit Authority (the “Metro”) in their civil

action relating to the death of their son, Richard Hadaway Smith

(the “decedent”), at the Metro’s station in Bethesda, Maryland.

Their sole contention on appeal is that the district court, in

according     immunity      to     the    Metro,    erroneously      interpreted   the

mandate from our earlier decision in this case.                  See Smith v. Wash.

Metro. Area Transit Auth. (Smith I), 290 F.3d 201 (4th Cir. 2002).

As explained below, we agree with the Plaintiffs and thus vacate

and remand.



                                             I.

      Public access to the Metro’s Bethesda station is normally

provided by three escalators and an elevator.                        On July 8, 1998,

Maryland      safety      inspectors       shut    down   one   of    the   escalators

(“Escalator Two”) because it had failed a safety inspection.                        On

the   night    of    July    19,    1998,     Metro   mechanics,       in   conducting

maintenance of the escalators, discovered a problem in another

escalator (“Escalator Three”) and left it disassembled pending

repair.    Because Escalators Two and Three were out of service, the

Metro decided to utilize its sole remaining escalator (“Escalator

One”) as a “stationary walker” so that customers could use it to


                                             3
both enter and exit the station.         On the following day, July 20,

1998, the decedent, after arriving at the Bethesda station by

train, exited the station by climbing Escalator One.            Unbeknownst

to the decedent, he suffered from severe coronary atherosclerosis,

and upon reaching the surface, he had a fatal heart attack.

      On July 22, 1999, the Plaintiffs filed suit against the Metro

in the District of Maryland, alleging that the Metro’s negligence

rendered it liable for the decedent’s death.               The Plaintiffs

asserted five distinct claims:           (1) the Metro had negligently

braked Escalator One for use as a stationary walker; (2) the Metro

had negligently left Escalator Three disassembled pending repair;

(3)   the Metro had negligently failed to warn customers of the

Bethesda   station’s   conditions;       (4)   the   Metro’s   signage   and

illumination failed to comply with the requirements of the ANSI

Code;1 and (5) the Metro negligently failed to repair and maintain

Escalators Two and Three.    The Metro moved for summary judgment,

asserting, inter alia, that the Metro Compact under which it

operated accorded it immunity against each of the Plaintiffs’

claims.2 Specifically, the Metro claimed immunity under section 80


      1
      Maryland law requires that all elevators and escalators
comply with the ANSI Code, a safety code for elevators and
escalators promulgated by The American National Standards Institute
(ANSI). See Md. Code Ann., Pub. Safety § 12-805.
      2
      The Metro Compact was executed in 1966 by Virginia, Maryland,
and the District of Columbia. Congress consented to the Compact,
and any legal issues concerning the Compact’s interpretation are
federal questions. See Cuyler v. Adams, 449 U.S. 433, 438 (1981).

                                     4
of   the   Compact,    which     grants    the   Metro     immunity     for   “torts

occurring in the performance of a governmental function.”                            The

district    court    awarded   summary        judgment    to   the   Metro    on     the

Plaintiffs’ signage-and-illumination claim, but denied summary

judgment on the remaining four claims, ruling that the Metro was

not entitled to immunity thereon.              See Smith v. Wash. Metro. Area

Transit Auth., 133 F. Supp. 2d 395, 405-07 (D. Md. 2001).                            The

Metro subsequently appealed from the court’s order to the extent

that it denied the Metro immunity.                  Our decision in Smith I

followed.

      In Smith I, we concluded that the Metro Compact’s preservation

of   immunity   for     “torts    occurring       in     the   performance      of    a

governmental    function”      was      essentially       coextensive    with      the

immunity     accorded     to      the     federal      government       under        the

“discretionary functions” exception in the Federal Tort Claims Act

(“FTCA”).     See 290 F.3d at 206-07.               We therefore analyzed the

Metro’s claim for immunity in accordance with the legal principles

of the FTCA.        We ultimately concluded that the Metro was immune

from liability on the Plaintiffs’ first four claims, in part

because there was no mandatory rule, policy, or procedure that

required the Metro to act (or refrain from acting) in the manner

that the Plaintiffs, in their first four claims, asserted that the

Metro should have acted (or refrained from acting).                     See id. at

208-11. We specifically withheld judgment, however, on whether the


                                          5
Metro was immune from liability on the Plaintiffs’ fifth claim —

that the Metro had negligently failed to properly maintain and

repair   Escalators   Two   and    Three   (the    “negligent     maintenance

claim”).    By way of example, we observed that, to the extent that

the Metro’s “repair and maintenance of Escalators Two and Three

contravened applicable requirements of the ANSI Code,” such repair

and   maintenance   would   fall   outside   the   scope   of    the   Metro’s

immunity.    Id. at 211.    Accordingly, we remanded the case to the

district court with the following instructions:

      On remand, the district court should first accord the
      METRO the immunity to which it is entitled. Then, if
      necessary, it can decide whether Smith can make a prima
      facie showing of negligent repair and maintenance, and it
      can also assess whether there is a sufficient proximate
      cause nexus between such a showing and Smith's death. The
      district court should then determine whether anything is
      left of this case.

Id.

      On remand, the Plaintiffs’ escalator expert, John G. Gerk,

submitted a report describing and analyzing the Metro’s practices

in maintaining and repairing Escalators One and Three during the

years preceding the decedent’s death.        According to Gerk’s report,

the Metro had adopted maintenance schedules for its escalators that

required the Metro to perform specific maintenance tasks on either

an annual, quarterly, monthly, or biweekly basis.               Gerk reported

that the Metro had not performed the required annual tasks in 1996,

and in previous years had not performed those tasks adequately.

Moreover, the quarterly tasks had only been performed three times

                                     6
in the preceding ten quarters and, in the preceding fourteen

months, the monthly tasks had been performed only three times on

Escalator Three and only once on Escalator Two.    Finally, in the

six months preceding the decedent’s death, the Metro had performed

none of the mandated biweekly maintenance on the escalators.    On

the basis of these findings, Gerk concluded that, had the Metro

followed its own maintenance schedules, Escalators Two and Three

would have been functioning properly on July 20, 1998, and that

therefore Escalator One would not have been in use as a stationary

walker on that day.   Gerk’s report, however, failed to link the

problems with Escalators Two and Three to violations of the ANSI

Code.

     On May 14, 2004, the Metro renewed its motion for summary

judgment, asserting that it was immune from liability on the

Plaintiffs’ negligent maintenance claim, and alternatively that the

Plaintiffs had failed to demonstrate that the Metro’s failure to

properly maintain and repair Escalators Two and Three was the

proximate cause of Smith’s death.   By its opinion of December 16,

2004, the district court granted the Metro’s motion for summary

judgment, ruling that the Metro was entitled to immunity on the

negligent maintenance claim.     See Smith v. Wash. Metro. Area

Transit Auth., CA-99-2187-AW, slip op. at 12 (D. Md. Dec. 16,

2004).   In so doing, the court interpreted Smith I to preclude

consideration of anything except whether the Smiths had established


                                7
a claim of negligent maintenance based solely on violations of the

ANSI Code.   In other words, the court read Smith I to conclude that

only violations of the ANSI Code fell outside the scope of the

immunity accorded to the Metro for “governmental functions” under

the Metro Compact.     Because Gerk’s report only correlated the

escalator problems to the Metro’s failure to follow its internal

maintenance schedules, and not to violations of the ANSI Code, the

court concluded that the Metro was immune from liability on the

negligent maintenance claim and awarded the Metro summary judgment

on that basis.      Because it determined Metro was entitled to

immunity, the court did not reach the issue of whether the Metro’s

failure to properly repair and maintain Escalators Two and Three

proximately caused the decedent’s death.

     The Plaintiffs timely appealed, and we possess jurisdiction

pursuant to 28 U.S.C. § 1291.



                                 II.

     We “review de novo an award of summary judgment, viewing the

facts and inferences drawn therefrom in the light most favorable to

the non-moving party.”    EEOC v. Navy Fed. Credit Union, 424 F.3d

397, 405 (4th Cir. 2005).       We also review de novo a district

court’s interpretation of an appellate court’s mandate, S. Atlantic

Ltd. P’ship of Tenn. v. Riese, 356 F.3d 576, 583 (4th Cir. 2004),




                                  8
and questions of immunity, Franks v. Ross, 313 F.3d 184, 192 (4th

Cir. 2002).



                                  III.

     The Plaintiffs assert on appeal that the district court

erroneously   interpreted   the   Smith   I   mandate   to   only   permit

liability on the basis of ANSI Code violations.              They further

contend that the Metro’s internal maintenance schedules set forth

mandatory standards that the Metro enjoys no discretion to disobey,

and that therefore the Metro’s failure to adhere to those schedules

does not fall within the scope of the Metro’s immunity.         We assess

these contentions in turn.

     As discussed above, we concluded in Smith I that the immunity

bestowed on “governmental functions” by the Metro Compact is

coextensive with that accorded “discretionary functions” by the

FTCA in 28 U.S.C. § 2680(a).      Smith I, 290 F.3d at 206-07.3       The

Supreme Court has set forth a two-tiered analysis for determining



     3
      Section 2680(a) accords immunity to the federal government
against

     [a]ny claim based upon an act or omission of an employee
     of the Government, exercising due care, in the execution
     of a statute or regulation, whether or not such statute
     or regulation be valid, or 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.


                                   9
whether      official    conduct   is    discretionary    for     purposes   of    §

2680(a).      First, “a court must consider whether the action is a

matter of choice for the acting employee. . . . [C]onduct cannot be

discretionary unless it involves an element of judgment or choice.”

Berkovitz v. United States, 486 U.S. 531, 536 (1998).                Thus, “when

a federal statute, regulation, or policy specifically prescribes a

course of action for an employee to follow,” the discretionary

function exception does not apply.             Id.     We have emphasized that

the inquiry focuses not so much on the source of the restriction as

on whether the restriction imposes mandatory duties.                 See Perkins

v. United States, 55 F.3d 910, 914 (4th Cir. 1995) (“[F]ailure to

perform a mandatory function is not a discretionary function.”).

Accordingly, where an agency official contravenes internal agency

guidelines      that     impose    mandatory    duties,     the    discretionary

functions exception poses no bar to the government’s liability.

See Blakely v. U.S.S. Iowa, 991 F.2d 148, 152-53 (4th Cir. 1993)

(examining internal JAG guidelines to determine whether conduct

involved discretion); see also Ignatiev v. United States, 238 F.3d

464,   467    (D.C.     Cir.   2001)    (“[I]nternal    guidelines    can    be   an

actionable source of a mandatory obligation under the FTCA.”).

       Second, “even if the challenged conduct involves an element of

judgment, a court must determine whether that judgment is of the

kind that the discretionary function exception was designed to

shield, that is, decisions grounded in social, economic, and


                                          10
political policy.”         Smith I, 290 F.3d at 208 (internal quotation

marks omitted).        Only those decisions “based on considerations of

public policy” are protected.            United States v. Gaubert, 499 U.S.

315, 323 (1991) (internal quotation marks omitted).

       In applying these principles to the Plaintiffs’ five claims in

Smith I, we determined that, with respect to the first four claims,

the Metro was under no mandatory obligation to act (or refrain from

acting)    as    the   Plaintiffs     asserted     it    should   have   acted    (or

refrained from acting).           See 290 F.3d at 208-11.              Moreover, we

concluded that the Metro’s decisions, upon which the Plaintiffs’

first     four    claims     centered,     were    based     on    public      policy

considerations.         See id.       Thus, we ruled that the Metro was

entitled to immunity on each of the Plaintiffs’ first four claims.

See id.

       With respect to the Plaintiffs’ negligent maintenance claim,

however, we remanded for a determination, in light of our Smith I

opinion, of whether the Metro was entitled to immunity.                        Id. at

211.    By way of example, we observed that, to the extent that the

Metro’s    “repair     and   maintenance      of   Escalators     Two    and    Three

contravened applicable requirements of the ANSI Code,” such repair

and    maintenance     would   fall    outside     the    scope   of   the   Metro’s

immunity, because it “would not involve ‘an element of judgment or

choice.’”       Id. (quoting Berkovitz, 486 U.S. at 536).                On remand,

the district court interpreted this language to mean that the Metro


                                         11
was entitled to immunity unless its repair and maintenance violated

the ANSI Code.            In so doing, the district court mistook an

illustrative application of the pertinent legal principle for the

legal principle itself.            As we explained in Smith I, the Metro

Compact’s grant of immunity does not extend to any nondiscretionary

conduct.    See 290 F.3d at 207-08.             Thus, if the Metro’s repair and

maintenance    of    Escalators      Two    and    Three   was    governed   by   any

mandatory source of obligation — including, but not limited to,

the ANSI Code — it is not entitled to immunity on the negligent

maintenance claim.

     According       to    the     Plaintiffs,       the   Metro’s     maintenance

schedules,    upon    which       Gerk   relied     in   preparing    his    report,

constitute    just    such    a    mandatory      source   of    obligation.      The

district court, however, having erroneously determined that the

Metro’s potential liability was limited to conduct in violation of

the ANSI Code, failed to consider whether the maintenance schedules

impose mandatory obligations on the Metro.

     The Metro contends that, despite any error in interpreting

Smith I, the court’s judgment can be affirmed on other grounds.                   It

first contends that, although relied upon and referenced in Gerk’s

report, the maintenance schedules were not included in the summary

judgment record and thus were not properly before the district

court.     It also suggests that the maintenance schedules do not

impose mandatory obligations.              Finally, the Metro asserts that,

                                           12
even if it is not entitled to immunity on the negligent maintenance

claim, the Plaintiffs have failed to establish a prima facie case

that its failure to properly repair and maintain Escalators Two and

Three proximately caused Smith’s death. Because the district court

addressed   only   the   threshold   issue   of   the   Metro’s   immunity,

however, it has not considered these assertions, and we think it

appropriate that the district court be accorded the opportunity to

pass on them in the first instance.4



                                     IV.

     Pursuant to the foregoing, we vacate the judgment of the

district court and remand for such further proceedings as may be

appropriate.

                                                    VACATED AND REMANDED




     4
      The parties have filed, pursuant to our post-argument order
of March 24, 2006, a supplemental joint appendix containing samples
of the maintenance schedules on which Gerk relied in preparing his
report. In light of our disposition of this appeal, however, we
have not considered the effect, if any, of those maintenance
schedules on the Plaintiffs’ suit against the Metro. We leave such
consideration for the district court.

                                     13
