                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0089n.06

                                            No. 12-5489
                                                                                          FILED
                              UNITED STATES COURT OF APPEALS                          Jan 24, 2013
                                   FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


RICHARD HATCHER,                                      )
                                                      )
       Plaintiff-Appellant,                           )
                                                      )
v.                                                    )        ON APPEAL FROM THE UNITED
                                                      )        STATES DISTRICT COURT FOR
UNITED STATES OF AMERICA,                             )        THE EASTERN DISTRICT OF
                                                      )        TENNESSEE
       Defendant-Appellee.                            )
                                                      )
                                                      )        OPINION



Before: COLE and DONALD, Circuit Judges; RUSSELL, District Judge. *


       BERNICE B. DONALD, Circuit Judge. Plaintiff-Appellant Richard Hatcher brought this

action against the United States and the United States Department of the Interior under the Federal

Tort Claims Act, 28 U.S.C. § 1346(b), claiming damages for injuries he suffered when a tree fell on

his leg at a national park. The district court dismissed Hatcher’s complaint, holding that the federal

government’s hazardous tree inspection and removal procedures are“discretionary functions,” for

which the government has not waived immunity under the Federal Tort Claims Act. This appeal

followed. We affirm.




       *
        The Honorable Thomas B. Russell, United States District Judge for the Western District
of Kentucky, sitting by designation.
No. 12-5489
Hatcher v. United States

                                                   I.

        Richard Hatcher alleges that on April 23, 2009, while observing rocks in a stream located in

the Cades Cove picnic area in the Great Smoky Mountains National Park (Park), he was injured

when a tree located in a wooded area across the stream fell and landed on his left leg. In March

2009, a month before the alleged incident, the National Park Service crew inspected and removed

95 trees from the area where the alleged incident occurred. Hatcher, nevertheless, claims that the

United States is liable for the injuries that he sustained on the grounds that the National Park Service,

failed to inspect, maintain, or both each of the trees in the wooded area surrounding the Cades Cove

picnic area where he and his family were visiting that day.

        The defendants moved to dismiss the matter pursuant to Rules 12(b)(1) and 12(b)(6) of the

Federal Rules of Civil Procedure. The United States sought dismissal on the grounds that the district

court lacked subject matter jurisdiction over Hatcher’s claims because the inspection and

maintenance of trees in the Park is a discretionary function that is excepted from the limited waiver

of sovereign immunity afforded through the Federal Tort Claims Act (FTCA). Alternatively, the

United States sought dismissal of Hatcher’s complaint because it was barred by the Tennessee

Recreational Use Statute, Tenn. Code Ann. §§70-7-101 et seq.

        The district court dismissed Hatcher’s claim with prejudice finding that the discretionary

function exception to the FTCA waiver of sovereign immunity applied to preclude the court’s

exercise of jurisdiction over Hatcher’s complaint. Because the district court found this issue

dispositive, it did not address the United States’ alternative argument–that under the Tennessee



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Hatcher v. United States

Recreational Use Statute, the United States is entitled to immunity from liability. Hatcher timely

appealed.

        On appeal, Hatcher argues that the district court erred in granting Defendant’s Rule 12(b)(1)

motion without giving him an opportunity to secure and present evidence to controvert affidavit’s

regarding the annual inspection and removal of trees in or near the developed areas of the Park.

Hatcher also argues that the district court erred in dismissing his complaint on the grounds of the

“discretionary function” exception to the FTCA. Furthermore, Hatcher argues that the defendant’s

alternative defense under the Tennessee Recreational Use Statute is not a proper ground for affirming

the district court’s decision.

                                                   II.

        Hatcher argues that the district court erred in relying on materials outside of the pleadings

to dismiss his case, without giving him an opportunity for discovery. It is established that the district

court may consider affidavits and other documents outside the record on a Rule 12(b)(1) motion, but

it must do so in a manner that is fair to the non-moving party. Rogers v. Stratton Indus., Inc., 798

F.2d 913, 918 (6th Cir. 1986) Where subject matter jurisdiction is challenged under Rule 12(b)(1),

as it was here, the plaintiff has the burden of proving jurisdiction in order to survive the motion. Id.

Hatcher was free to supplement the record by affidavits, but chose not to do so. Id. Hatcher

deceptively claims that discovery should have been granted. The record reveals that Hatcher decided

that he did not need discovery to defend against the government’s motion to dismiss. In fact, he

joined the United States in moving to stay discovery pending disposition of the government’s motion

to dismiss. Id.; see Vill, of Oakwood v. State Bank & Trust Co., 539 F.3d 373, 384 (6th Cir. 2008)

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No. 12-5489
Hatcher v. United States

(party failed to inform court that discovery was needed on summary judgment motion waived the

argument that they were improperly denied discovery by the district court). The district court is

empowered to resolve factual issues on a Rule 12(b)(1) challenge to subject matter jurisdiction and

properly did so in this case by reviewing all of the evidence that both Hatcher and the government

presented. Id. Moreover, Hatcher fails to explain which evidence he was unable to obtain that would

have had any impact on the merits of the motion to dismiss. For these reasons, this argument is

without merit.

                                                 III.

       The district court dismissed Hatcher’s claim, holding that the action was barred by the

discretionary function exception to the FTCA. We review the district court’s application of the

discretionary function exception and dismissal of this action de novo. United States v. Yannott, 42

F.3d 999, 1003 (6th Cir. 1994) (citations omitted), cert. denied, 513 U.S. 182 (1995).

       Congress waived the sovereign immunity of the United States by giving district courts

jurisdiction over certain tort actions against the United States. 28 U.S.C. § 1346(b). Congress,

however, excepted from this limited waiver “[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). If a case falls within this statutory exception to FTCA § 1346(b), the court

lacks subject matter jurisdiction. Rosenbush v. United States, 119 F.3d 438, 440 (6th Cir. 1997).

       In a series of cases, the Supreme Court has articulated and refined a two-part test to be

applied in determining whether a particular claim falls under this discretionary function to the waiver

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No. 12-5489
Hatcher v. United States

of sovereign immunity. See United States v. Gaubert, 499 U.S. 315 (1991); Berkovitz v. United

States, 486 U.S. 531 (1988); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig

Airlines), 467 U.S. 797 (1984); Dalehite v. United States, 346 U.S. 15 (1953). The first part of the

test requires a determination of whether the challenged act or omission violated a mandatory

regulation or policy that allowed no judgment or choice. Gaubert, 499 U.S. at 322-23; see also

Graves v. United States, 872 F.2d 133, 137 (6th Cir. 1989). If so, the discretionary function

exception does not apply because there was no element of judgment or choice in the complained of

conduct. Gaubert, 499 U.S. at 322. “The requirement of judgment or choice is not satisfied if a

‘federal statute, regulation or policy specifically prescribes a course of action for an employee to

follow,’ because ‘the employee had no rightful option but to adhere to the directive.’” Id. (quoting

Berkovitz, 486 U.S. at 536).

       If the challenged conduct is determined to be discretionary, the second part of the Gaubert

test looks to see whether the conduct is “of the kind that the discretionary function exception was

designed to shield.” Id. at 322-23. In enacting FTCA § 2680(a), “Congress wished to prevent

judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic,

and political policy.” Berkovitz, 486 U.S. at 537; Varig Airlines, 467 U.S. at 814. Thus, where there

is room for policy judgment and decision, there is discretion of the sort protected by FICA § 2680(a).

Dalehite, 346 U.S. at 36.

                                                 IV.

       In deciding whether the complained of conduct was grounded in judgment or choice, the

crucial first step is to determine exactly what conduct is at issue. Rosenbush, 119 F.3d at 441. The

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No. 12-5489
Hatcher v. United States

relevant inquiry is whether the controlling statutes, regulations, and administrative policies mandated

that the National Park Service conduct inspections and remove hazardous trees any differently than

it did. Id. at 442. If not, the National Park Service’s decision as to the precise action to take would

clearly fall within the discretionary function exception to the government’s tort liability. Id.

       The written policy guidelines that applied to the periodic inspection of the Cades Cove picnic

area left discretion to Park employees on whether, when, and how to implement the guidelines given

budgetary and staffing constraints. The guidelines state, “[p]eriodically, any trees which stand within

falling distance of public use areas and which might pose a hazard to the public or significant

property should be systematically inspected for flaws. The form and frequency of the routine

inspection or surveillance will depend on the type of visitor use or areas (which will be defined

later).” “Frequency of inspection as called for in the [guidelines] becomes a local issue keyed to the

nature of the park and visitor use. . . . For many areas a frequency of once a year would be the

norm.” The guidelines are discretionary because they allow Park employees executing them to

determine how to best implement the overall framework considering various factors. See Berkovitz,

486 U.S. at 536 ; Rosenbush, 119 F.3d at 441.

       The allegedly tortious conduct of the United States in this case involved a discretionary

function. Therefore, we turn to the second part of the Gaubert test to determine whether the National

Park Service’s conduct– inspecting and removing hazardous trees– is the sort of conduct which the

discretionary function exception was designed to shield. See Gaubert, 499 U.S. at 322-23. We hold

that it is. Decisions on whether and how to make federal lands safe for visitors require making

policy judgments protected by the discretionary function exception. Rosenbush, 119 F.3d at 443;

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No. 12-5489
Hatcher v. United States

Autery v. United States, 992 F.2d 1523, 1527 (11th Cir. 1993) (claims for injuries sustained when

a tree fell on car as plaintiffs were driving through Great Smoky Mountain National Park barred by

discretionary function exception because Park Service decision concerning safeguarding visitors

constitutes protected discretionary conduct); Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.

1987) (design and use of park services on the Blue Ridge Parkway is a discretionary function

because it requires balancing safety, aesthetics, environmental impact, and available financial

resources). Indeed, tree inspection and removal is the sort of conduct inherently subject to important

and unpredictable constraints like limited funds and manpower.

       Like the district court, we will not reach the defendant’s recreational-use alternative defense

in light of the dispositive nature of the FTCA’s discretionary-function exception.

                                                 V.

       The district court correctly ruled that the FTCA does not, in view of the discretionary

function exception, waive immunity for Hatcher’s claim and therefore properly dismissed it. For this

reason, the court does not reach the alternate state grounds defense. The judgment is AFFIRMED.




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