Wood v. United States

• Decision Date: 04 January 2017
• Docket Number: No. 15-2106,15-2106
• Citation: 845 F.3d 123
• Parties: Laurie L. WOOD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

845 F.3d 123

Laurie L. WOOD, Plaintiff-Appellant,

v.UNITED STATES of America, Defendant-Appellee.

No. 15-2106

United States Court of Appeals, Fourth Circuit.

Argued: October 26, 2016

Decided: January 4, 2017

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.

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

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

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 a gap between them. She commenced this action against the United States under the Federal Tort 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 waived sovereign immunity in the FTCA. Specifically, she argues that the Navy's conduct 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 for use by civilian law 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 the Naval Support Activity Hampton Roads, Northwest Annex ("Northwest Annex"), a restricted access military base of some 3,600 acres in Chesapeake, Virginia. The Northwest Annex, which was owned and operated by the Navy, was managed by two Navy instrumentalities—the Marine Corps Security Force Training Company and the Navy's 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 the military preparedness of the United States," id.§ 376. 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.

Before any civilian law enforcement 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. During that training, the civilian officer is provided with 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 that admonishes all Range Safety Officers to "REMEMBER! 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 of the "Ship Mockup," although the form also listed that facility as available. 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, Wood and other officers, who shared responsibility for training the Sheriff's Office's deputies, arrived at the Northwest Annex in preparation for the training exercises. As Wood and the other Sheriff's Office instructors walked through the Munro Village training facility, they discussed using the mock-ship to create a "bail-out" scenario for trainees to practice exiting a building at an elevated height. They contemplated that the trainees would jump from the mock-ship onto the mats below from the second story, a height of some 20 feet. One 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 mats separated, and she fell through the gap onto the ground. The fall caused a burst fracture of her 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 condition created by the possibility of mat separation. 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 when used by civilian law enforcement agencies—fell within the FTCA's discretionary function exception and that therefore the United States could not be sued. The district court agreed and entered an order dismissing Wood's complaint for a lack of subject matter jurisdiction.

After the court entered its order of dismissal, Wood filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), claiming that the district court's dismissal of her complaint without allowing for 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 intertwined’ with the merits of Plaintiff's claim." 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 the United States unless the legislature has authorized it." Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 97 L.Ed. 1427 (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), 2671 -2680. This waiver, however, is 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 and showing that none of the FTCA's exceptions apply. See Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005).

In this case, the government challenged the district court's jurisdiction based on the 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...