Laurie Wood v. US

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cv-00469-RAJ-TEM. [999997447]. [15-2106]

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 1 of 22

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2106

LAURIE L. WOOD,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:14-cv-00469-RAJ-TEM)

Argued:

October 26, 2016

Decided:

January 4, 2017

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by published opinion.
Judge Niemeyer wrote
opinion, in which Judge Wilkinson and Judge Shedd joined.

the

ARGUED: Timothy Jon DeMore, DEMORE LAW FIRM, Syracuse, New York,
for Appellant.
Kent Pendleton Porter, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.
ON BRIEF:
Matthew D. Green, Gibson S. Wright, MORRIS & MORRIS, P.C.,
Richmond, Virginia; Brittany E. Aungier, HISCOCK & BARCLAY, LLP,
Syracuse, New York, for Appellant.
Dana J. Boente, United
States
Attorney,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Alexandria, Virginia, for Appellee.

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 2 of 22

NIEMEYER, Circuit Judge:
Laurie Wood, a City of Norfolk (Virginia) Sheriff’s Deputy,
was seriously injured during a training session on a Navy base
when she jumped from a training structure onto a set of mats,
landing

in

against

a

the

gap

United

between

them.

States

She

under

the

commenced

Federal

this

Tort

action

Claims

Act

(“FTCA”), alleging that Navy officers negligently allowed the
structure,

particularly

the

mats

placed

adjacent

to

it,

to

remain in a dangerous condition and failed to warn her of the
dangerous gap between the mats.

The district court granted the

government’s motion to dismiss, concluding that the challenged
Navy

conduct

fell

within

the

FTCA’s

“discretionary

function

exception” and therefore that Congress had not waived sovereign
immunity for Wood’s claim.
On

appeal,

Wood

contends

that

her

complaint

alleged

a

straightforward negligence claim under Virginia law, for which
the

United

States

Specifically,

she

waived
argues

sovereign
that

the

immunity
Navy’s

in

conduct

the

FTCA.

was

“not

discretionary in nature” so as to be excluded from the waiver of
sovereign immunity because it was not the sort of conduct that
the discretionary function exception was intended to protect.
Because we conclude that the Navy’s decisions regarding the
maintenance

of

its

military

bases

2

for

use

by

civilian

law

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 3 of 22

enforcement involved policy judgments that Congress sought to
shield from tort liability under the FTCA, we affirm.

I
Wood was injured while using a piece of training equipment
located

within

Northwest

Annex

the

Naval

(“Northwest

Support

Activity

Annex”),

Roads,

restricted

a

Hampton

access

military base of some 3,600 acres in Chesapeake, Virginia.

The

Northwest Annex, which was owned and operated by the Navy, was
managed
Security

by

two

Force

Navy

instrumentalities

Training

Company

and

--

the

the
Navy’s

Marine

Corps

Center

for

Security Forces.
By statute, the Department of Defense is authorized to make
military facilities such as the Northwest Annex available to
state and local civilian law enforcement officers for training
purposes, 10 U.S.C. § 372, and to train civilian officers to use
those facilities, id. § 373, so long as the civilian training
does

not

“adversely

affect

United States,” id. § 376.

the

military

preparedness

of

the

A Department of Defense directive

and several military orders set forth policies regarding the use
of military facilities by civilian law enforcement generally,
and Standard Operating Procedures set forth procedures governing
law enforcement’s use of the Northwest Annex specifically.

3

Appeal: 15-2106

Doc: 30

Before

Filed: 01/04/2017

any

Pg: 4 of 22

civilian

enforcement

law

agency

may

use

Northwest Annex facilities for training, one of its officers
must qualify under a Marine Corps training program as a Range
Safety Officer.
provided

with

During that training, the civilian officer is
excerpts

of

the

Standard

Operating

Procedures,

which outline the officer’s duties as a Range Safety Officer.
The officer is instructed on how to schedule the facilities,
coach his fellow officers on the range, respond to accidents,
and perform other “basic duties.”

The officer is also shown a

slideshow

Range

“REMEMBER!

that

admonishes

all

Safety

Officers

to

The [Range Safety Officer] is solely responsible for

the safety and the proper conduct of the training” at the Navy
facility.

Once a civilian officer qualifies as a Range Safety

Officer, he may schedule use of the Northwest Annex for his law
enforcement agency by submitting a request form that specifies
the facilities and equipment being requested.

This form must

then be approved by a Navy or Marine Corps official, depending
on which branch is responsible for the requested facility.
Sergeant Brad Ward of the City of Norfolk Sheriff’s Office
qualified as a Range Safety Officer in 2011, and in February
2012, he requested use of two facilities at the Northwest Annex
--

“Munro

Village,”

an

outdoor

tactical

training

facility

designed to resemble a city block, and the “Simunition House.”
Sergeant Ward’s request form did not include a request for use
4

Appeal: 15-2106

of

the

Doc: 30

Filed: 01/04/2017

“Ship

Mockup,”

facility as available.

Pg: 5 of 22

although

the

form

also

listed

that

His request was approved by an officer

of the Marine Corps, which managed Munro Village.
The “Ship Mockup,” which is managed by the Navy and on
which Wood was injured, is located near Munro Village and is
within the same general area.

That equipment, which the Navy

referred to as the “Ship in a Box” or the “mock-ship,” was a
prismatic, three-story structure designed to resemble a foreign
merchant ship.

The Navy used the equipment to simulate ship-

boarding by having soldiers -- clad in armor and strapped into
safety harnesses -- climb a ladder onto the mock-ship’s third
deck.

Several

mats

were

placed

beneath

the

ladder

both

to

recreate the difficulty of beginning a climb from an inflatable
boat and to provide additional fall protection if a soldier’s
harness were to fail.
On

April

20,

2012,

responsibility

for

Wood

training

and

the

other

officers,

Sheriff’s

who

Office’s

shared

deputies,

arrived at the Northwest Annex in preparation for the training
exercises.
walked

As Wood and the other Sheriff’s Office instructors

through

the

Munro

Village

training

facility,

they

discussed using the mock-ship to create a “bail-out” scenario
for

trainees

height.

to

practice

exiting

a

building

at

an

elevated

They contemplated that the trainees would jump from the

mock-ship onto the mats below from the second story, a height of
5

Appeal: 15-2106

some

Doc: 30

20

Filed: 01/04/2017

feet.

One

Pg: 6 of 22

instructor,

seeking

to

demonstrate

the

exercise, climbed up onto the mock-ship’s first story and jumped
out onto the mats without incident.

Wood then climbed onto the

second story and jumped off.

When she landed, however, two of

the

fell

mats

ground.

separated,
The

fall

and

she

caused

a

through

burst

the

fracture

gap

of

onto

her

the

twelfth

thoratic vertebra, rendering her a paraplegic.
After Wood’s administrative claim for damages was denied by
the Navy, she commenced this action under the FTCA against the
United States.

She alleged that the United States negligently

maintained the mock-ship in a dangerous condition by (1) failing
to secure a “top pad” to the mock-ship’s mats to prevent them
from separating; (2) failing adequately to inspect the condition
of the mock-ship and its mats; and (3) failing to warn her, as a
lawful

invitee,

of

the

dangerous

possibility of mat separation.

condition

created

by

the

The government filed a motion to

dismiss Wood’s complaint, contending that the Navy’s challenged
conduct -- consisting of safety-related decisions regarding its
training

facilities

agencies

--

exception
sued.

and

fell
that

when
within

used
the

therefore

by

civilian

FTCA’s
the

law

enforcement

discretionary

United

States

could

function
not

be

The district court agreed and entered an order dismissing

Wood’s complaint for a lack of subject matter jurisdiction.

6

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 7 of 22

After the court entered its order of dismissal, Wood filed
a motion to alter or amend the judgment under Federal Rule of
Civil

Procedure

dismissal

of

59(e),

her

claiming

complaint

that

without

the

district

allowing

for

court’s
discovery

contravened our decision in Kerns v. United States, 585 F.3d 187
(4th Cir. 2009).

The district court, however, found that Kerns

was inapplicable

because

“jurisdictional

facts”

regarding

the

applicability of the discretionary function exception were not
“‘inextricably
claim.”

intertwined’

with

the

merits

of

Plaintiff’s

Accordingly, it denied Wood’s motion.

From the district court’s May 14, 2015 order dismissing her
complaint and its August 31, 2015 order denying her motion to
alter or amend the judgment, Wood filed this appeal.

II
“[N]o

action

lies

against

legislature has authorized it.”

the

United

States

unless

the

Dalehite v. United States, 346

U.S. 15, 30 (1953).
In the FTCA, Congress waived sovereign immunity for claims
brought against the United States based on the negligence or
wrongful acts or omissions of its employees committed within the
scope of employment, accepting liability in the same manner and
to the same extent as a private individual would have under like
circumstances.

28

U.S.C.

§§ 1346(b)(1),

7

2671-2680.

This

Appeal: 15-2106

Doc: 30

waiver,

Filed: 01/04/2017

however,

is

Pg: 8 of 22

circumscribed

by

numerous

exceptions,

including an exception for claims “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) (emphasis added).

Because

waivers of sovereign immunity must be strictly construed, the
plaintiff

bears

the

burden

of

demonstrating

jurisdiction

showing that none of the FTCA’s exceptions apply.

and

See Welch v.

United States, 409 F.3d 646, 651 (4th Cir. 2005).
In
court’s

this

case,

jurisdiction

the

government

based

on

the

challenged

the

district

discretionary

function

exception set forth in § 2680(a), and therefore Wood had the
burden of demonstrating that that exception did not apply.

To

carry her burden, she alleged that the United States’ creation
and maintenance of an unsafe condition at the mock-ship and its
failure to warn her of the condition were “not discretionary in
nature and therefore [were] not excepted as discretionary acts
from the government’s waiver of sovereign immunity.”
Acting

on

the

government’s

motion,

the

district

court

dismissed Wood’s complaint, concluding that Wood did not carry
her burden.

In reaching its conclusion, the district court read

Wood’s complaint to challenge the government’s conduct in “the
military’s maintenance decisions regarding the [mock-ship] as an
8

Appeal: 15-2106

Doc: 30

unauthorized

Filed: 01/04/2017

military

Pg: 9 of 22

facility,

as

opposed

to

a

facility that has been approved for civilian use.”

military

It concluded

that
the government’s maintenance of the [mock-ship] when
it has not been approved for civilian use falls under
the [discretionary function exception] because it
implicates
financial
and
staffing
considerations.
Equipment and facility maintenance considerations, as
well
as
calculations
balancing
the
benefit
of
increased
safety
measures
and
increased
costs,
objectively fall into the category of decisions that
are susceptible to policy analysis.
On

appeal,

Wood

contends

that

her

claim

for

premises

liability is a “garden variety” negligence claim that involves
the failure to make premises safe for invitees or to give them
warning of a known danger.

She asserts that Congress did not

intend for these “run of the mill” acts to be shielded by the
discretionary

function

exception.

She

adds

that

the

government’s focus on the training facility’s purposes and the
Navy’s

mission

distraction.”

in

maintaining

the

premises

is

“merely

a

She also argues that its focus is too broad and

general and, moreover, that the district court’s description of
her use of the mock-ship as “unauthorized” is not supported by
her allegations, which must be accepted at this stage in the
proceedings.
The government contends, on the other hand, that Wood’s
characterization

of

the

conduct

at

issue

is

too

narrow,

collapsing the discretionary function inquiry into the question
9

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

of negligence on the merits.

Pg: 10 of 22

The government asserts that Wood’s

complaint actually challenges government decisions regarding the
maintenance

and

inspection

of,

or

the

issuance

of

warnings

relating to, military training facilities used by civilian law
enforcement.

Such

decisions,

it

argues,

are

within

the

discretionary function exception for which the government has
not waived immunity in the FTCA.
The

determination

of

whether

the

discretionary

function

exception applies requires application of a two-step analysis.
First, a court must determine whether the conduct in question
“involves an element of judgment or choice.”

Berkovitz ex rel.

Berkovitz v. United States, 486 U.S. 531, 536 (1988).
statute,

regulation,

or

conduct,

the

cannot

conduct

policy
be

prescribes

the

discretionary

employee’s

and

unprotected by the discretionary function exception.

When a

thus

is

Id.; see

also United States v. Gaubert, 499 U.S. 315, 322 (1991); Seaside
Farm, Inc. v. United States, No. 15-2562, ___ F.3d ___, 2016 WL
7030629, at *3 (4th Cir. 2016).

Second, when the challenged

conduct is the product of judgment or choice, the court must
still

determine

whether

the

decision

considerations of public policy.”

made

was

“based

on

Berkovitz, 486 U.S. at 537.

This second step of the analysis is designed to prohibit courts
from “second guessing” decisions “grounded in social, economic,
and political policy through the medium of an action in tort.”
10

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 11 of 22

Gaubert, 499 U.S. at 323 (quoting United States v. S.A. Empresa
de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,
814

(1984)).

government

And

policy,

in

this

as

same

vein,

expressed

or

“when

implied

established
by

statute,

regulation, or agency guidelines, allows a Government agent to
exercise discretion, it must be presumed that the agent’s acts
are grounded in policy when exercising that discretion.”
324

(emphasis

added).

In

short,

the

discretionary

Id. at
function

exception is driven by separation of powers concerns, shielding
decisions of a government entity made within the scope of any
regulatory policy expressed in statute, regulation, or policy
guidance, even when made negligently.
The

analysis

exception

applies

employee

had

of
does

whether
not

subjective

the

depend
knowledge

discretionary

on

whether
of

his

the

function
government

discretion

or

subjectively intended to exercise it; the analysis must focus
objectively on “the nature of the actions taken and on whether
they are susceptible to policy analysis.”

Gaubert, 499 U.S. at

325; see also Seaside Farm, 2016 WL 7030629, at *3; Baum v.
United States, 986 F.2d 716, 721 (4th Cir. 1993).
The analysis also does not depend on whether the conduct
was that of a high-level agency official making policy or a lowlevel employee implementing policy.
35-36.

See Dalehite, 346 U.S. at

Rather, the analysis must focus solely on whether the
11

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 12 of 22

government conduct involved choice implicating policy.
499 U.S. at 323.

Gaubert,

Indeed, relying on a distinction between “day-

to-day” actions and “policymaking or planning functions” would
be inappropriate in light of the principle that “[d]iscretionary
conduct is not confined to policy or planning level.

‘It is the

nature of the conduct, rather than the status of the actor, that
governs whether the discretionary function exception applies in
a given case.’”

Id. at 325 (alteration omitted) (quoting Varig

Airlines, 467 U.S. at 813).
Thus, in Baum v. United States, 986 F.2d 716 (4th Cir.
1993), we
part,

that

ordered
the

dismissal

National

of

Park

a

suit

alleging,

Service

in

negligently

relevant

failed

to

replace a deteriorating guardrail system that broke when the
plaintiffs’ car struck it.

986 F.2d at 718.

We concluded that,

just as a statute gave the Park Service discretion to construct
the

bridge

without

fear

that

courts

would

second-guess

its

design choices, the FTCA shielded the agency’s “decision of how
and when to replace a major element of [that] substantial public
facility.”

Id. at 724; see also Bowman v. United States, 820

F.2d 1393, 1395 (4th Cir. 1987) (holding, on similar facts, that
“[w]hether

[the]

decision

grew

out

of

a

lack

of

financial

resources, a desire to preserve the natural beauty of the vista,
a

judgment

that

the

hazard

was

12

insufficient

to

warrant

a

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 13 of 22

guardrail, or a combination of all three, . . . [it] is obvious
that the decision was the result of a policy judgment”).
Therefore, taking the facts alleged by Wood in this case as
defining

the

challenged

government

actions,

see

Gaubert,

499

U.S. at 325, and applying the two-step analysis to them, we must
determine,

on

an

objective

basis,

whether

the

challenged

government conduct involved decisions based on considerations of
public policy.
Wood alleges, in essence, that pursuant to a request made
by the Norfolk Sheriff’s Office, the Navy authorized that Office
to conduct training exercises on the Navy base in April 2012.
She alleges that the Navy was negligent in failing to maintain
in a safe configuration the mats on which she was injured, by
failing to inspect the mats for the dangerous condition, and by
failing

to

warn

condition.

invitees,

such

as

Wood,

about

the

dangerous

In short, she makes a premises liability claim as an

invitee to a Navy military base, and we must decide therefore
whether these actions that she challenges are protected by the
discretionary function exception.
Applying
determine

the

first

two-step

whether

the

analysis

to

government

this
conduct

conduct,

we

involved

an

element of choice, which in turn requires the determination of
whether any federal statute, regulation, or policy prescribed
the conduct.

See Berkovitz, 486 U.S. at 536.
13

On this aspect of

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 14 of 22

the analysis, the parties apparently agree that there was no
mandate

contained

in

any

statute,

regulation,

or

policy

regarding the maintenance, inspection, and warning with regard
to either the mats or the mock-ship.
government’s

motion

to

dismiss,

Wood

In responding to the
conceded

that

she

was

unable to find any such statute, regulation, or military policy,
and she does not argue otherwise on appeal.

In addition, the

government presented affidavits from a Navy captain, a Marine
Corps colonel, and the Range Manager at Northwest Annex, stating
that there is no policy directly governing such maintenance,
inspection, and warning procedures when the facilities are used
by a civilian law enforcement agency.

Further, the Marine Corps

order governing range safety does not require the military to
take any specific safety precautions with respect to facilities
that are to be used by civilians.

Instead, it requires only

that civilian agencies, who “may use [military] ranges at the
discretion of the installation commander,” must “comply with the
provisions of this regulation/order.”
Reg. 385-63, MCO 3570.1C (2012).
Procedures
prescribe

that
no

apply

actions

And the Standard Operating

specifically
with

respect

See Range Safety, Army

to
to

the
base

Northwest

Annex

safety.

As

a

consequence, the government conduct involving the safety of the
mock-ship and the mats required Navy personnel to make choices
or exercise judgment.
14

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 15 of 22

Even so, for the discretionary function exception to apply,
those

choices

or

judgments

must

also

have

been

“based

on

considerations of public policy” and thus “of the kind that the
discretionary

function

exception

Berkovitz, 486 U.S. at 537.

was

designed

to

shield.”

In addressing this second step of

the analysis, we look to the “objective,” “general” nature of
the

challenged

actions

and

decide

involved protected policy judgments.

whether

they

inherently

Baum, 986 F.2d at 720-21.

We note first that the statutory scheme governing civilian
use

of

military

between

permissive

resources.
and

facilities
civilian

out

a

training

basic

and

policy

tradeoff

constrained

military

See Gaubert, 499 U.S. at 324 (“[T]he general aims

policies

evident

sets

of

from

Department

the

its

of

controlling

text”).

Defense

may

statute

The
allow

will

statutes

[typically]

provide

civilian

law

that

be
the

enforcement

agencies to use Navy facilities, 10 U.S.C. § 372, and may train
civilian

officers

“in

equipment,” id. § 373.

the

operation

and

maintenance

of

But they also instruct that civilian use

must not interfere with the nation’s “military preparedness.”
Id. § 376.

There can be no doubt therefore that the Navy’s

first-order decision of whether to allow civilian use of its
bases

at

all

is

shielded

by

exception.

15

the

discretionary

function

Appeal: 15-2106

Doc: 30

In

Filed: 01/04/2017

allowing

civilian

use

Pg: 16 of 22

of

the

Northwest

Annex

in

the

particular circumstances of this case, the Navy also had to make
several additional decisions -- each under the umbrella of its
initial decision to allow civilians to use the base at all -and these decisions were necessarily informed by the same policy
considerations expressed in the statutes.

This is made evident

by the Navy’s internal policy documents covering civilian use of
the facility.
rely

on

See Gaubert, 499 U.S. at 324 (“[A]n agency may

internal

regulations”).

guidelines

rather

than

on

published

For example, in deciding whether to authorize

use of its base by civilian officers, the Navy has chosen to
require that one of those officers qualify as a Range Safety
Officer,

who

is

required

to

be

“solely

responsible

for

safety” of their civilian agency while training on the base.
Navy

policy

manual

also

indicates

that

its

officers

the
A

should

provide assistance to local law enforcement “at the lowest cost
practicable.”

Similar documents more generally set forth risk-

management frameworks for all Navy decisionmaking.
Naval

Operations

Instruction

3500.39C

(July

2,

See Chief of
2010).

The

common thread running through the relevant statutes and policy
documents is a recognition that, whenever the Navy exercises its
statutory

discretion

to

allow

civilian

agencies

to

use

its

facilities, it must take into account in exercising its judgment
military preparedness, the safety of the civilian agencies, and
16

Appeal: 15-2106

Doc: 30

costs.

This

Filed: 01/04/2017

complicated

Pg: 17 of 22

balance

is

well

illustrated

here.

Given the designed purpose of the mock-ship and the mats, which
were intended only as backup protection for armored soldiers
climbing the ship in harnesses, it could be unjustifiably costly
to protect against and warn civilian trainees of the dangers
arising out of uses for which the facility was not designed.
See Baum, 986 F.2d at 722-24 (economic policy considerations
underlying

bridge

construction

project

encompassed

subsequent

decisions involving bridge maintenance).
At bottom, the Navy’s decision to leave the mats near the
mock-ship

in

a

certain

condition,

its

allegedly

infrequent

inspections of the mock-ship, its decision not to warn civilian
trainees

itself

about

the

condition

of

the

ship,

and

its

decision to qualify the user’s agent as a Range Safety Officer
responsible

for

overarching

policy

safety,

military

established

safety
of

each

fall

balancing

preparedness,

governmental

policy,

comfortably

open

civilian

and

within

costs.

as

expressed

that

use,

civilian

And

“[w]hen

or

implied

by

statute, regulation, or agency guidelines, allows a Government
agent to exercise discretion,” as here, “it must be presumed
that the agent’s acts are grounded in policy when exercising
that discretion.”

Gaubert, 499 U.S. at 324 (emphasis added).

Wood argues that if the Navy’s maintenance decisions are
protected here, it is difficult to see how the United States
17

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 18 of 22

could ever be liable for injuries on government property.

She

cites cases from courts in other circuits that have expressed
similar

concerns

in

declining

to

extend

the

discretionary

function exception to particular premises-liability claims.

In

our

be

view,

however,

the

requirement

that

shielded

conduct

taken pursuant to specific policies expressed in federal law
explains

some

of

those

courts’

reluctance

to

apply

the

discretionary function exception in the particular circumstances
presented.

For example, in Gotha v. United States, 115 F.3d

176, 178 (3d Cir. 1997), a Navy contractor’s employee slipped
and fell on a military base footpath.

In the absence of any

statutory, regulatory, or internal policy evidence encompassing
the Navy’s decisions with respect to employee safety, the Gotha
court

refused

conduct

to

endorse

inherently

employee safety.
The

the

involved

government’s

balancing

theory

national

that

its

security

and

Id. at 181-82.

reasoning

in

Gotha,

however,

has

little

application

here, where the Navy’s maintenance decisions with respect to
facilities

used

by

civilian

law

enforcement

fall

within

the

overarching policies of a regulatory scheme that gives officers
discretion in how to implement that policy.
Congress

by

established
available

statute
a

for

and

regulatory

the

Navy

mission

by
of

civilian-law-enforcement
18

In this case, where

internal
making

policy

military

training,

the

have
bases

Navy’s

Appeal: 15-2106

Doc: 30

decisions

Filed: 01/04/2017

affecting

the

Pg: 19 of 22

safety

of

its

bases

for

civilian

trainees should not be subjected to judicial second-guessing.
Were we to hold, for example, that Wood could challenge the
Navy’s decision not to place a warning sign near the mock-ship,
it

would

open

the

Navy

to

tort

liability

for

every

similar

decision made when allowing civilian law enforcement agencies to
use its facilities.
tool

to

shape

The threat of tort liability would become a

Navy

policy,

which

is

exactly

what

the

discretionary function exception seeks to avoid.
Wood
defined

also
the

contends

that

government’s

the

district

challenged

court

conduct

incorrectly

as

“maintenance

decisions regarding the [mock-ship] as an unauthorized military
facility” -- a description that assumed, contrary to her claim,
that her use of the mock-ship was not authorized and thereby
dictated the court’s decision.

To be sure, while the district

court did repeatedly express its assumption that the mock-ship
was unauthorized, its ultimate decision did not necessarily rest
on

that

assumption.

The

district

court

observed

that

“the

considerations that apply to this decision are magnified when
the

issue

is

facilities.”
the

fact

that

public policy.

the

military’s

maintenance

of

unauthorized

Moreover, its holding was grounded centrally on
the

Navy

exercised

As the court stated:

19

discretion

with

respect

to

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 20 of 22

In this case, the military has declined to adopt any
policy to conduct pre-training inspections in order to
ensure that requested facilities are safe for civilian
use.
Instead, the responsibility to conduct pretraining
inspections
is
with
the
[Range
Safety
Officer]. . . .
The Court finds that [these matters
are susceptible to policy analysis] because these dayto-day operational maintenance decisions regarding the
condition in which military facilities are to be left
in when they are not in use, implicate economic policy
in that they involve considerations such as allocation
of military resources.
Thus, while the district court ruled with the assumption that
the

mock-ship’s

equally

to

a

use

was

unauthorized,

situation

where

use

its
of

reasoning
the

applied

mock-ship

was

authorized.
In any event, whether use of the mock-ship was authorized
or

not

does

jurisdiction

not
under

implicate
the

whether

FTCA.

As

the

we

district

have

court

had

out,

the

pointed

permissive use of the Navy’s training facilities by civilian law
enforcement

is

covered

by

policies

announced

in

statutes,

regulations, and orders, and officers’ implementation of these
policies through decisions with respect to the mock-ship and the
mats

is

therefore

protected

by

the

that

the

discretionary

function

exception.
At
conduct

bottom,
here

we

falls

conclude
within

exception

and

therefore

concluded

that

Congress

the

FTCA’s

that
did

the
not,

20

government’s

discretionary

district
in

challenged

the

court
FTCA,

function
correctly

waive

the

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 21 of 22

sovereign immunity of the United States for Wood’s negligence
claim.

III
Wood

also

contends

that

the

district

court

abused

its

discretion in denying her motion to amend the judgment under
Federal Rule of Civil Procedure 59(e) to allow her to engage in
jurisdictional discovery, as provided in Kerns, 585 F.3d 187.
She argues in particular that the district court should have
allowed

discovery

of

whether

her

use

of

the

mock-ship

was

unauthorized, which “weighed heavily upon the [District] Court’s
analysis.”
In Kerns, we reversed an order dismissing a plaintiff’s
complaint under Rule 12(b)(1) because the facts supporting FTCA
jurisdiction -- bearing on whether the defendant was driving
within

the

scope

of

her

employment

--

were

“inextricably

intertwined” with the merits of the plaintiff’s tort claim.
F.3d

at

195.

The

Kerns

decision

sought

to

ensure

585
that

plaintiffs facing a motion to dismiss were not unfairly deprived
of the additional “procedural safeguards” in Rule 56 (governing
summary judgment) when the merits of their claims are bound up
with jurisdictional issues.

Id. at 195-96.

Kerns, however, does not apply here.

As explained above,

the application of the discretionary function exception does not

21

Appeal: 15-2106

Doc: 30

Filed: 01/04/2017

Pg: 22 of 22

turn on whether Wood was authorized to use the mock-ship.

That

fact

tort

would

claim.
See

indeed

be

relevant

to

the

merits

of

Wood’s

But it is irrelevant to subject matter jurisdiction.

Seaside

Farm,

2016

WL

7030629,

at

*3.

Accordingly,

we

conclude that the district court did not abuse its discretion in
refusing to open discovery to the merits issue in this case.

*
For
dismissing

the

reasons

Wood’s

*

given,

complaint

*
the

for

district
lack

of

court’s
subject

order
matter

jurisdiction and its order denying her Rule 59(e) motion are

AFFIRMED.

22