Hawes v. U.S.

• Decision Date: 26 May 2005
• Docket Number: No. 04-1736.,04-1736.
• Parties: Rawls R. HAWES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

409 F.3d 213

Rawls R. HAWES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 04-1736.

United States Court of Appeals, Fourth Circuit.

Argued February 1, 2005.

Decided May 26, 2005.

ARGUED: H. Jan Roltsch-Anoll, Szabo, Zelnick & Erickson, P.C., Woodbridge, Virginia, for Appellant. Leslie Bonner McClendon, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF: Paul J. McNulty, United States Attorney, Alexandria, Virginia, for Appellee.

Before WIDENER, MOTZ, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge GREGORY wrote the majority opinion, in which Judge WIDENER joined. Judge MOTZ wrote a dissenting opinion.

GREGORY, Circuit Judge.

Before this court, Rawls R. Hawes appeals the dismissal of his tort action, pursuant to Fed.R.Civ.P. 12(b)(1), against the United States of America. Specifically, the district court held that the discretionary function exception to the Federal Torts Claims Act covered all of the allegedly negligent actions undertaken by the United States. Given that the claims were not actionable, the district court found that it had no subject matter jurisdiction and dismissed the case.

Finding no error on the part of the district court, we affirm.

I.

Rawls R. Hawes ("Hawes") accompanied his younger brother and father, a retired member of the United States Coast Guard, to the Quantico Marine Corps Base ("Base") located in Quantico, Virginia. The Base is home to multiple man-made obstacle courses. The NATO obstacle course, located in the Camp Barrett section of the Base, consists of approximately twenty man-made obstacles in an open field. According to Major Darin Clarke, "[i]t was put together to have obstacles that you may want-you may need to negotiate during combat. It is a variety of climbing, jumping, skills...." J.A. 774 (emphasis added). The Scale of Integrity is one of these obstacles. It consists of a twenty-two foot long, four-inch thick wooden beam held seven feet in the air by four iron posts. Just prior to Hawes's visit, Major Clarke had ordered maintenance on the Scale of Integrity. According to Major Clarke, "[t]he board that was on there started to splinter and so I wanted to get a new board up there to reduce the splinters when that course is being negotiated." J.A. 776. Major Clarke made a request to the Base's Range Management Detachment, who in turn assigned Staff Sergeant John Raventos ("SSgt.Raventos") to perform the requested repairs. SSgt. Raventos received the work order and shortly thereafter visited the course with Major Clarke to determine exactly what repairs needed to be made. SSgt. Raventos ordered a new wooden beam for the Scale of Integrity, which was delivered to the Base on January 8, 2001.

On January 12, 2001, the Friday before the Martin Luther King Jr. holiday, SSgt. Raventos took a crew to the obstacle course with the intention of installing the new wooden beam. After pulling the old beam down and placing the new beam on the iron poles, the forklift used to place the beam on these poles was needed elsewhere on the Base and was taken from the NATO obstacle course. Then, while attempting to drill the holes to secure the new beam in place, the portable drill the crew was using ran out of power. The marines left the beam unfastened on top of the poles, and went to determine if another power generator was available. Upon determining that there was not, the marines were dismissed because it was a holiday weekend and their holiday started at noon. SSgt. Raventos then returned to the course to place four safety cones at the obstacle.¹ SSgt. Raventos planned to return on Tuesday, January 16, 2001 with proper equipment to secure the beam.

However, on Sunday, January 14, 2001, Hawes attempted to navigate the Scale of Integrity. As Hawes attempted to pull himself up onto the unbolted beam, it shifted causing Hawes to fall to the ground. The beam then fell off the iron poles and onto Hawes's leg, crushing his femur and causing permanent damage.

Hawes subsequently brought this action, alleging both negligence and gross negligence on the part of the Government during the maintenance of the Scale of Integrity. The Government moved for dismissal under Fed.R.Civ.P. 12(b)(1), or in the alternative Fed.R.Civ.P. 56. The district court granted the Government's 12(b)(1) motion, finding that the challenged actions were covered by the discretionary function exception to the Federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2680(a) (2005), which divested the court of subject matter jurisdiction. Applying the test enunciated by the Supreme Court in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), and Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), for identifying discretionary government functions protected from the reach of the FTCA, the district court first found that the decision was discretionary because no federal standard governed the Government's maintenance of the obstacle. The district court next found that the decision to stop the maintenance, leaving the unbolted beam on the posts, even if there was no adequate warning, was tied to the exercise of judgment based upon considerations of public policy. Because the court found that the military was balancing technical, military, and social considerations, it found that the second prong of the discretionary function exception test was satisfied.

From that decision, Hawes brings this appeal.

II.

The dismissal of an action under Rule 12(b)(1) is a matter of law reviewed de novo. Robb v. United States, 80 F.3d 884, 887 (4th Cir.1996). As a general matter, "the plaintiff bears the burden of persuasion if subject matter jurisdiction is challenged under Rule 12(b)(1), because [t]he party who sues the United States bears the burden of pointing to ... an unequivocal waiver of immunity." Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995) (internal citations omitted).

Multiple district courts in this Circuit have read this ruling as placing the burden of persuasion to defeat the assertion of an exception to the FTCA waiver on the plaintiff. See Hostetler v. United States, 97 F.Supp.2d 691, 695 (E.D.Va.2000); Jackson v. United States, 77 F.Supp.2d 709, 712 (D.Md.1999). We agree, and note that this approach is in line with that enunciated by the First Circuit. See Hydrogen Technology Corp. v. United States, 831 F.2d 1155, 1162 n. 6 (1st Cir.1987) (noting "when an exception to the FTCA applies, sovereign immunity is still intact and federal courts have no subject matter jurisdiction to entertain an action.").²

III.

The FTCA constitutes a waiver of the sovereign immunity of the United States, allowing the government to be liable in tort "in the same manner and to the same extent as a private individual under like circumstances, but [the government] shall not be liable for interest prior to judgment or for punitive damages." 28 U.S.C. § 2674. However, the FTCA is subject to a number of exceptions, the discretionary function exception being one. Baum v. United States, 986 F.2d 716, 719 (4th Cir.1993). The discretionary function exception excludes from the FTCA's waiver:

Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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. § 2680(a) (2005). This 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, 81 L.Ed.2d 660 (1984).

As this court has recognized, "[t]hough the purpose underlying the discretionary function exception is well accepted, courts have encountered some difficulty in applying its rather general terms to the myriad of fact patterns that predictably present themselves...." Baum, 986 F.2d at 719-20. However, two recent Supreme Court decisions, United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) and Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), laid out a two-part test that somewhat clarified the application of this important statute. First, a court must determine whether the governmental conduct challenged involves an element of judgment or choice. Baum, 986 F.2d at 720 (citing Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267; Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). The essential inquiry here is whether the challenged conduct "is the subject of any mandatory federal statute, regulation, or policy prescribing a specific course of action." Baum, 986 F.2d at 720. Where there is such a statute, regulation, or policy, there is no discretion, and therefore no exception, "because `the employee has no rightful option but to adhere to the directive.'" Gaubert, 499 U.S. at 322, 111 S.Ct. 1267 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954).

However, upon finding an element of discretion, the court must then determine whether the judgment is "of the kind that the discretionary function exception was designed to shield." Id. at 322-23, 111 S.Ct. 1267. As the Supreme Court stated in Gaubert:

Because the purpose of the exception is to "prevent judicial `second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort, when properly construed, the exception `protects only governmental actions and decisions based on considerations of public policy.'"

Id. at 323, ...