Deuser v. Vecera, 97-1453

• Decision Date: 26 March 1998
• Docket Number: No. 97-1453,97-1453
• Citation: 139 F.3d 1190
• Parties: Albert F. DEUSER; Tina Marie Sellers, by and through her guardian, natural mother and next friend Joann Sellers; Phyllis Menke, Appellants, v. David VECERA, National Park Ranger; Edward Bridges, National Park Ranger; Dennis Burnett, Chief Ranger; United States of America, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1190

139 F.3d 1190

Albert F. DEUSER; Tina Marie Sellers, by and through her guardian, natural mother and next friend Joann Sellers; Phyllis Menke, Appellants, v. David VECERA, National Park Ranger; Edward Bridges, National Park Ranger; Dennis Burnett, Chief Ranger United States of America, Appellees.

No. 97-1453.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 14, 1998.

Decided March 26, 1998.

Robert H. Pedroli, Clayton, MO, argued, for Appellants.

Carl Goldfarb, Washington, DC, argued (Mark B. Stern, Washington, DC, on the brief), for Appellees.

Before BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES, ¹ District Judge.

BOWMAN, Circuit Judge.

Tina Marie Sellers, by and through her mother Joann Sellers; Albert Deuser; and Phyllis Menke appeal from the order of the District Court ² dismissing for lack of subject matter jurisdiction their claims brought under the Federal Tort Claims Act (FTCA). We affirm.

I.

The District Court dismissed appellants' claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, holding that the government was protected from suit by the discretionary function exception of the FTCA. We review de novo. See Appley Bros. v. United States, 7 F.3d 720, 722 (8th Cir.1993). "[W]e accept all of the factual allegations in [the] complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate." Berkovitz v. United States, 486 U.S. 531, 540, 108 S.Ct. 1954, 1961, 100 L.Ed.2d 531 (1988). Because the District Court adduced facts beyond the skeletal allegations of the complaint, we too will recite the more complete story. ³ There are some disputed facts, but resolution of those disputes is not necessary for us to decide whether there is subject matter jurisdiction under the FTCA.

Tina Sellers is the daughter of, and Albert Deuser and Menke are the parents of, Larry Deuser, who is deceased. On July 3-6, 1986, the event known as the Veiled Prophet (or VP) Fair was held on the grounds of the Jefferson National Expansion Memorial in St. Louis, Missouri (the site of the Gateway Arch). Because the Expansion Memorial is a national park (a special use permit was issued to the city of St. Louis for the Fair), the Secretary of the Interior is responsible for maintaining the park and its facilities and for providing services to visitors, functions generally carried out by the National Park Service. See Universal Interpretive Shuttle Corp. v. Washington Metro. Area Transit Comm'n, 393 U.S. 186, 187 & n. 1, 89 S.Ct. 354, 355 & n. 1, 21 L.Ed.2d 334 (1968). The park is within the jurisdiction of the National Park Rangers. On the evening of July 4, 1986, many thousands of people were in attendance at the Fair, including Larry Deuser. Rangers David Vecera and Edward Bridges observed Deuser grabbing women on the buttocks, to the obvious outrage of the victims and others. The rangers warned Deuser, and continued to keep an eye on him. When he urinated in public, the rangers arrested him. As the rangers made their way to their tent with Deuser, he was argumentative with them and continued making rude comments to female visitors.

After conferring with chief ranger Dennis Burnett, the rangers elected to turn Deuser over to St. Louis police. But the police department was overwhelmed with the additional workload created by the Fair, and officers were unable or unwilling to process Deuser's arrest. At this point, the rangers, together with St. Louis police officer Lawrence King, decided to release Deuser, but away from the park so that he would not return to the Fair that evening.

There is some dispute between the parties about where Deuser was released, and also some question of the timing of the events that occurred that night. It is sufficient for our purposes to know the undisputed facts: Deuser was freed in a parking lot somewhere in St. Louis, alone and with no money and no transportation. At some time after that, he wandered onto an interstate highway and was struck and killed by a motorist. Deuser's blood alcohol level was 0.214 at the time of his death, well above the legal limit for intoxication.

The appellants brought a variety of state and federal claims against a number of municipal and federal actors. When this case was before us previously, we held that summary judgment for various of the defendants was proper on the claims brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and 42 U.S.C. § 1983. See Sellers v. Baer, 28 F.3d 895 (8th Cir.1994), cert. denied, 513 U.S. 1084, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995). The FTCA claim for Deuser's wrongful death and a state law claim against police officer King remained. As we noted above, the District Court now has dismissed the FTCA claim for lack of subject matter jurisdiction. In addition, the court declined to exercise supplemental jurisdiction over the state law claim against King (a decision that has not been appealed).

II.

By enacting the FTCA, Congress opted to waive the sovereign immunity to civil suit enjoyed by the United States, and to give consent to be sued "for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee" of the United States acting within the scope of his employment. 28 U.S.C.A. § 1346(b)(1) (Supp.1997). The federal courts have subject matter jurisdiction over such claims "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Id. But, as is true in other cases where Congress on behalf of the United States has waived sovereign immunity, amenability to suit is not without exception.

The exception relevant here is commonly known as the discretionary function exception. It is statutory and shields the government from civil liability for claims "based upon the exercise or performance ... [of] 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. § 2680(a) (1994). 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, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984).

To determine whether the discretionary function exception applies here to protect the rangers and the United States from suit, we engage in a two-step inquiry.

A.

First, we must consider whether the actions taken by the rangers as regards Deuser were discretionary, that is, "a matter of choice." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. "[C]onduct cannot be discretionary unless it involves an element of judgment or choice." Id. It is axiomatic that a government employee has no such discretion "when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id. If the rangers had a policy they were to follow in releasing Deuser, as the appellants contend, "then there is no discretion in the conduct for the discretionary function exception to protect." Id.

There are two written policies that the parties contend are of relevance here. The first is the Jefferson National Expansion Memorial Standard Operating Procedure for arrests (SOP), dated December 22, 1987. ⁴ The opening declaration of the SOP suggests there is little room for discretionary decisionmaking on the part of the rangers in an arrest situation: "When an arrest is made by National Park Rangers within the jurisdiction of Jefferson National Expansion Memorial, the following procedures will always be followed: ..." Standard Operating Procedure--Arrests at 1 (emphasis added). The arrestee is to be searched, and if possible fingerprinted and photographed, before transport. The prisoner, handcuffed behind his back, is to be transported by two rangers. During business hours, the arrestee "will continue to be taken directly to the U.S. Marshall's [sic] Office." Id. at 2. At others times (or so we, and apparently the parties, infer from the SOP, although it is not clearly stated), "[t]he arresting Ranger plus a Shift Supervisor will transport the prisoner to the Fourth District Holdover Facility at 1200 Clark Avenue (Clark and Tucker) using the division vehilce [sic]," id. at 1, unless the facility is full, in which case prisoners are to be taken to one of the alternative locations noted in the SOP. There are very detailed instructions for gaining access to the Fourth District facility. Once inside, the rangers are to proceed to the booking area with the prisoner, complete the necessary paperwork, and remove all personal property from the prisoner. "The prisoner will then be turned over to the Holdover personnel and taken up to the cell block." Id. at 2. Except for some additional paperwork and later transport of the suspect for court appearances, the rangers' job is done once the prisoner is taken to the proper holding facility. This, appellants contend, is the procedure the rangers were compelled to follow with Deuser after they arrested him.

The rangers argue (and the District Court concluded) that the SOP arrest policy was abrogated temporarily by the VP Fair 1986 Operations Handbook. The Handbook emphasizes the "primary role" of the rangers during the Fair: "resource protection followed by the things we do best, visitor services and visitor care." VP Fair 1986 Operations Handbook--Overview and Hindsight para. 6. ⁵ The opening paragraph of the Handbook's General Enforcement Guidelines makes it clear that the guidelines are in fact quite general and are for use by the rangers "in enforcement contacts[,...