Cestonaro v. USA.

• Decision Date: 01 May 2000
• Docket Number: No. 99-3235,99-3235
• Citation: 211 F.3d 749
• Parties: (3rd Cir. 2000) GIOVANNA CARBONIERO CESTONARO, Individually and as Personal Representative of the Estate of Danielle Cestonaro, Appellant v. UNITED STATES OF AMERICA
• Court: U.S. Court of Appeals — Third Circuit

Page 749

211 F.3d 749 (3rd Cir. 2000)

GIOVANNA CARBONIERO CESTONARO, Individually and as Personal Representative of the Estate of Danielle Cestonaro, Appellant v. UNITED STATES OF AMERICA

No. 99-3235

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued December 7, 1999

Filed May 1, 2000

On Appeal from the District Court of the Virgin Islands Division of St. Croix D.C. Civil Action No. 95-cv-00102 (Honorable Raymond L. Finch) [Copyrighted Material Omitted]

Attorney for Appellant: VINCENT A. COLIANNI, ESQUIRE (ARGUED) Hunter, Colianni, Cole & Bennett 1138 King Street, Suite 301 Christiansted, St. Croix U.S. Virgin Islands 00820

Attorneys for Appellee: ERNEST F. BATENGA, ESQUIRE (ARGUED) Office of United States Attorney 1108 King Street, Suite 201 Christiansted, St. Croix U.S. Virgin Islands 00820, PATRICIA A. HOOKS, ESQUIRE United States Department of the Interior Office of Regional Solicitors 75 Spring Street, S.W., Suite 304 Atlanta, Georgia 30303

Before: BECKER, Chief Judge, SCIRICA and GARTH, Circuit Judges

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This appeal requires us to interpret the "discretionary function" exception to the Federal Tort Claims Act's general waiver of sovereign immunity. The District Court dismissed a wrongful death complaint against the United States, finding that the discretionary function exception to the Federal Tort Claim Act's waiver of sovereign immunity, 28 U.S.C. S 2680(a), applied. We will reverse.

I.

The underlying facts are undisputed. In December 1993, Daniele Cestonaro, his wife Giovanna, and their daughter, all Italian citizens and residents, were vacationing in St. Croix, Virgin Islands. On the evening of December 28, the Cestonaros parked their rental car in a lot on Hospital Street in Christiansted. Upon returning to their car after dinner, the Cestonaros were confronted by two armed gun men. Daniele Cestonaro was shot and died almost immediately.

The Hospital Street lot falls within the boundaries of the Christiansted National Historic Site owned and controlled by the United States Department of the Interior, National Park Service. At the time of the murder, the Hospital Street lot was not an official parking lot. There were no signs designating or even indicating that it was a parking lot; it was neither paved nor striped. The lot's appearance, however, differed from the surrounding area in the Christiansted National Historic Site in terms of grade and surface, as it consisted of broken asphalt from a previous paving. Since the 1940s, the general public had used the Hospital Street lot as a parking area. Furthermore, the National Park Service was aware that crimes had occurred in the lot before December 28, 1993. In addition to crime incidents reports from the Virgin Island Police Department and its own park rangers, the National Park Service also received regular complaints about safety in the Hospital Street lot from local business owners.¹

It is undisputed that the National Park Service had done nothing to deter nighttime parking in the Hospital Street lot. It had not posted signs prohibiting parking, nor signs warning of dangers of nighttime parking, nor issued tickets for illegal parking. In fact, the lot was lighted at night. Some time after the lot came into the government's possession, five lights were installed illuminating the Hospital Street lot. It is undisputed the National Park Service maintained those lights.²

Giovanna Cestonaro filed a wrongful death action against the United States under the Federal Tort Claims Act, 28 U.S.C. SS 1346(b), 2671, and the Virgin Islands Wrongful Death Statute, 5 V.I.C. S 76. In her complaint, Mrs. Cestonaro alleged that "[d]efendant was negligent in failing to provide adequate lighting and correct the known dangerous condition and to warn others about the existence of the dangerous condition" at the Hospital Street lot. The United States filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) asserting the District Court lacked subject matter jurisdiction because the challenged National Park Service actions fell under the discretionary function exception to the FTCA's waiver of sovereign immunity.³

The District Court dismissed the complaint, finding the National Park Service's decisions concerning the Hospital Street lot were grounded in its mission to "safeguard the natural and historic integrity of national parks" and in its policy "to minimally intrude upon the setting of such parks." Cestonaro, Civ. No. 1995-102, slip op. at 11.

Mrs. Cestonaro appealed.

II.

We have jurisdiction under 28 U.S.C. S 1291. We exercise plenary review over the applicability of the discretionary function exception. See Gotha v. United States , 115 F.3d 176, 179 (3d Cir. 1997); Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279, 282 (3d Cir. 1995) (en banc). Because the government's challenge to the District Court's jurisdiction was a factual one under Fed. R. Civ. P. 12(b)(1), we are not confined to the allegations in the complaint (nor was the District Court) and can look beyond the pleadings to decide factual matters relating to jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

III.

A.

The Federal Tort Claims Act is a partial waiver of the sovereign immunity that would otherwise protect the United States from tort liability stemming from the actions of its employees. The express purpose of the FTCA is to make the United States liable "in the same manner and to the same extent as a private individual under like circumstances . . . ." 28 U.S.C. S 2674. But the FTCA's waiver is tempered by several exceptions. See 28 U.S.C. S 2680. For our purposes, the relevant exception is the "discretionary function exception" that withdraws the waiver of sovereign immunity with regard to:

Any 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.

28 U.S.C. S 2680(a).

The exception "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." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984). The FTCA does not, however, define "discretionary function." As a result there has arisen a trove of case law identifying the contours of the government's tort liability. Our holding that the National Park Service's decisions concerning the Hospital Street lot fall outside the scope of the discretionary function exception is consistent with that jurisprudence. See, e.g., Gotha v. United States, 115 F.3d 176 (3d Cir. 1997); Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995).

B.

The analytical framework of the discretionary function exception has been laid out by the Supreme Court in a trilogy of cases -United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig), 467 U.S. 797 (1984); Berkovitz v. United States, 486 U.S. 531 (1988); and United States v. Gaubert, 499 U.S. 315 (1991). See Gotha, 115 F.3d at 17980.

The first issue is whether "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz, 486 U.S. at 536. If so, the exception cannot apply. If not, the question is whether the governmental action or inaction "is of the kind that the discretionary function exception was designed to shield." Id. If it is, the action constitutes the exercise of protected discretion, and the United States is immune from suit.

The touchstone of the second step of the discretionary function test is susceptibility to policy analysis. See Gaubert, 499 U.S. at 325 ("The focus of the inquiry is not the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis."). As we have previously stated, a plaintiff 's claim can only survive if "the challenged actions cannot `be grounded in the policy of the regulatory regime.' " Gotha, 115 F.3d at 179 (quoting Gaubert, 499 U.S. at 325). The Court in Gaubert underscored the importance of the relationship between the discretionary decision and policy considerations, noting the exception applies only if the challenged actions can "be said to be based on the purposes that the regulatory regime seeks to accomplish." 499 U.S. at 325 n.7.

Before proceeding to apply the discretionary function analysis to the facts of this case, there is one remaining preliminary issue -we must identify the challenged action. See Rosebush v. United States, 119 F.3d 438, 441 (6th Cir. 1997) (noting that a crucial step in determining whether challenged action is protected "is to determine exactly what conduct is at issue"). As noted by the District Court plaintiff 's complaint levels two allegations concerning the National Park Service's conduct:

Defendant was negligent in failing to provide adequate lighting and correct the known dangerous condition and to warn others about the existence of the dangerous condition.

Compl. at P 7. In effect, plaintiff challenges the National Park Service's decisions concerning lighting and warning in the Hospital Street lot. From the record, it is unclear whether the National Park Service made a decision not to add lighting or warning signs to the Hospital Street lot or whether that resulted from inaction or a non-decision. As was the case in Gotha, however, "[i]t would appear that . . . the action or inaction goes more to the issue of negligence rather than whether the issue of policy discretion is implicated." 115 F.3d at 180. Because the question before us is only whether the nature of the actions taken, or not taken, are susceptible to policy analysis, we need not concern ourselves with...