Wilka v. USA
ORDER granting deft's 36 MOTION for Summary Judgment and DISMISSING CASE with prejudice. Signed by Judge D. P. Marshall Jr. on 7/8/11. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Case No. 4:09-cv-794-DPM
UNITED STATES OF AMERICA
This case is about a decision to move handicapped-accessible parking
spots. Lori Wilka worked for the Military Order of the Purple Heart in
building 65 at the Veterans Affairs Medical Center in North Little Rock,
Arkansas. Wilka had a handicapped parking permit because of her severe
asthma. VA Supervisor Gary McClellan and Regional Director William
Nicholas both circulated memoranda, between September 2006 and January
2007, informing Wilka that the four handicapped spaces next to building 65
were not to be used by its employees. Those spaces were needed for
handicapped patient parking.
When Wilka learned that she needed some more surgery, she asked for
an exemption from the new policy. The VA refused. Wilka then went to visit
family before her surgery and fell. She was forced to use crutches after this
fall. A month later, on 3 January 2007, Wilka fell in the parking lot outside
building 65. She was seriously injured. She was returning to her job after a
doctor's appointment and a work-related errand. Although all of the four
handicapped spaces nearest building 65 were open, Wilka had parked almost
three blocks away in keeping with the VA's directives.
Wilka exhausted her administrative remedies within the VA.
U.s.C.A. § 2675(a) (West 2006); 28 U.s.C.A. § 2401(b) (West 2006). She sued
the United States under the Federal Torts Claims Act, claiming the VA
negligently denied her handicapped parking. The United States moves for
summary judgment for lack of subject matter jurisdiction. It presses the VA's
decision was a discretionary function exempt from the Act, thus entitling the
United States to judgment as a matter of law. FED. R. Cry. P. 56(a).
The material facts are either undisputed or taken in the light most
favorable to Wilka. Hinsley v. Standing Rock Child Protective Services, 516 F.3d
668, 671 (8th Cir. 2008). In this Circuit, Wilka has the burden of proving the
discretionary function does not apply. Hart v. U.S., 630 F.3d 1085, 1089 & n.3
(8th Cir. 2011); Riley v. U.S., 486 F.3d 1030, 1031-33 (8th Cir. 2007). The
Court's analysis here is two-fold. The first question is whether the challenged
decision by the VA involves an element of choice. U.S. v. Gaubert, 499 U.s.
315,322 (1991). The second question is whether the VA's decision involved
the type of discretion Congress intended to protect with the exemption.
Gaubert, 499 U.S. at 322-23.
1. The VA's decision to restrict Wilka's parking was discretionary.
"Decisions made at the operational level, as well as decisions made at the
policy-planning level, can involve the exercise of protected discretion." C.R. S.
by D.B.S. v. U.S., 11 F.3d 791, 795 (8th Cir. 1993). But this discretion is absent
if a "federal statute, regulation, or policy specifically prescribes a course of
action for an employee to follow[.]" Ibid. If the VA's decision violated a
statute or regulation, "there will be no shelter from liability because there is
no room for choice and the action will be contrary to [established
governmental] policy." Kirchmann v. U.S., 8 F.3d 1273, 1276 (8th Cir. 1993)
(alteration in original).
Wilka originally pointed to many sources for a mandate: the Americans
with Disabilities Act, the Architectural Barriers Act, the Architectural Barriers
Act Accessibility Standard, and the Uniform Federal Accessibility Standards.
The American with Disabilities Act does not apply to the VA because it is a
federal agency. 42 U.s.C.A. § 12131(1)(A) (West 2005). Wilka has agreed in
her briefing, moreover, that the Architectural Barriers Act and the
Architectural Barriers Act Accessibility Standard did not apply to the VA's
decision either. The Uniform Federal Accessibility Standards and the VA's
supplemental Barrier Free Design Guide - the parties now agree - are the
applicable regulations. 41 C.F.R. § 102-76.65(a)(1); Document No. 37-3, at 10.
The Uniform Federal Accessibility Standards has some mandates about
handicapped parking; but the mandates left the VA maneuvering room. The
Standards required a number of the spots in each lot to be handicapped
accessible. 41 C.F.R. § 101-19.6, App'x A (2002). "If parking spaces are
provided for employees or visitors, or both, then accessible spaces ... shall be
provided in each such parking area" in a certain number depending on the
lot's total spaces. 4.1.1(5)(a). For example, a more than400-space lot like Lot
10 must have nine accessible spots. Ibid. The VA could choose, however, to
measure its accessible spots "distributed among parking lots, if greater
accessibility is achieved." Ibid. The Uniform Federal Accessibility Standards
do not define" greater accessibility."
The Standards also put some requirements on location. "In separate
parking structures or lots that do not serve a particular building, parking
spaces for disabled people shall be located on the shortest possible circulation
route to an accessible pedestrian entrance of the parking facility." 4.6.2. A
"circulation path" is a "way of passage from one place to another for
pedestrians[.]" Document No. 37-2, at 73. The Standards do not define the
"shortest possible circulation route" or the "pedestrian entrance of the
These parking regulations leave room for choice. They gave the VA
discretion: it could measure accessible spots by lot or in the aggregate. The
accessibility", moreover, invited the VA to determine the best route. Demery
v. U.S. Dep't of Interior, 357 F.3d 830, 833 (8th Cir. 2004). As odd as it might
seem, choosing to follow the campus-wide calculation did not require the VA
to place even one handicap spot in Lot 10. The regulations also allowed the
VA to place spots where it thought best. There is no mandate about exact
parking location - spaces must be on the shortest possible circulation route,
as defined by the VA. The VA could slide these spots along that route, as it
did in Lot 10.
2. The VA, the Court concludes, exercised its discretion poorly. But the
record has no evidence creating a genuine dispute of fact about Lot 10's
compliance with 4.1.1(5)(a). It complied: the VA had 79 handicap-accessible
parking spots campus-wide, Document No. 37, at 22, while the Uniform
Federal Accessibility Standards required only 28 spaces under the campus
wide calculation. § 101-19.6, App'x A. The Court has reviewed the parking
lot diagram, Document No. 37-1. It demonstrates the arbitrariness of the VA's
decision - Wilka had no handicapped accessible parking within three blocks
of building 65. So she was forced to walk for blocks on crutches to get to
work. Although the VA's decision provided greater accessibility in total, the
VA chose to neglect the accessibility needs of building 65. Wilka was injured
by this poor judgment.
3. The Court must presume the VA's action was grounded in policy
because the regulations allow discretion. Demery, 357 F.3d at 833. The parties
all agree that the VA had parking problems in general. Through several
depositions, Wilka reconstructed how the VA decided to change Lot 10's
parking. The VA, it is clear, did not thoroughly consider accessibility in
general, but it did consider the need for increased visitor handicapped
parking. Document No. 41, at 4. As hospital administrator Raymond Lipin put
it, "a lot of our buildings do not have visitors at all. Okay. We put our
handicap spaces where we have visitors coming in that require handicap
spaces." Document No. 37-2, at 32-33.
Giving visitors who need handicapped parking priority over employees
who need handicapped parking is a policy choice. Hinsley, 516 F.3d at 673 n.7.
Building 170-the main hospital-is directly behind building 65. Document
Nos. 37-1 & 39-9, at 13. According to the VA's Barrier Free DesignGuide,"the
percent of disabled at VA hospitals is much higher than the percent of
disabled in the general population used for [Uniform Federal Accessibility
Standards] .... the percentage of disabled drivers/passengers is much higher
in the veterans population."
Document No. 37-3, at 14. Like any good
employee on a veteran's campus, Wilka acknowledges and approves this
policy: "I am happy they have given more parking spots for the veterans...
. [t]hat's who we're there for and that's what they should be there for./I
Document No. 37-1, at 48. "Number one priority. I do not have a problem
with this." Document No. 37-1, at 41.
Changing the spots in front of Wilka's building to accommodate
disabled veterans, the core of the VA system's mission, was a matter of
protected discretion. "Congress accepted the possibility that this exemption
would sometimes deliver harsh results." Hinsley, 516 F.3d at 674. On this
record, the Court cannot second-guess the VA's decision by recognizing a
remedy in tort. The VA's motion for summary judgment, Document No. 36,
is granted. Wilka's case is dismissed with prejudice.
D.P. Marshall Jr.
United States District Judge
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