Rawls R. HAWES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, 409 F.3d 213

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, “[ijt 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. Raven-tos 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 uséd 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. 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.”). 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, 111 S.Ct. 1267 (citations omitted). As enunciated by Gaubert, this second element of the test grants broad latitude to the government.

First, Gaubert enunciated a presumption that “[w]hen established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” Id. at 324, 111 S.Ct. 1267. Next, the policy analysis looks not toward the actual considerations of a government agent in undertaking the conduct in question, but instead to whether the actions “are susceptible to policy analysis. ” Id. at 325, 111 S.Ct. 1267 (emphasis added).

Finally, “it is the nature of the conduct, rather that the status of the actor that governs whether the exception applies.” Id. In so stating, the Court was clearly rejecting the notion that the exception did not reach decisions made at the operational or management level. See id. As this circuit has read Gaubert, “a reviewing court in the usual case is to look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one which we would expect to be grounded in considerations of policy.” Baum, 986 F.2d at 720-21.

Upon satisfaction of these two elements, the FTCA’s waiver of sovereign immunity is no longer applicable. A. First, we must determine whether the challenged conduct involved an element of judgment or choice. 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.” Id. at 720. “If no such mandatory statute, regulation, or policy applies to remove the challenged conduct from the choice and judgment of the government, then we move to the second tier of the Berkovitz-Gaubert analysis.” Id.

Before this Court, Hawes makes only a token effort at identifying a statute, regulation, or policy that prescribes a specific course of action that SSgt. Raventos should have followed. In full, Hawes argues that SSgt. “Raventos was subject to the MCB Safety Program that expressly required him to be responsible for ‘using normal caution, common sense, and foresight’ in his work and to warn others of known hazards.” Appellant’s Brief 14. However, this effort is herculean compared to that put forth before the district court.

There, the district court found that Hawes admitted “that no federal standard directly governs the maintenance and repair of the obstacle course.” Hawes v. United States, 322 F.Supp.2d 638, 641 (E.D.Va.2004). Hawes, in his “Memorandum in Opposition to Defendant’s Motion to Dismiss or For

Summary Judgment”, did “not dispute that the Marine Corps did not have a specific regulation requiring the posting of signs for the general public warning of repairs or maintenance on the obstacle.” J.A. 913. Further, Hawes argued the internal rules and regulations of the Base, of which the MCB safety program would be one, “are irrelevant to the determination of this case.” J.A. 913. Thus, we find that the argument that the MCB Safety Program constitutes a statute, regulation, or policy that prescribes a specific course of action that SSgt.

Raventos should have followed was not raised before the district court, and therefore refuse to address it here. See e.g. Skippy, Inc. v. CPC International, Inc., 674 F.2d 209, 215 (4th Cir.1982)(“In the absence of exceptional circumstances, questions not raised and properly preserved in the trial forum will not be noticed on appeal.”). As such, we limit our review of this matter to the specific issue considered by the district court: whether considerations of public policy were the basis for decisions regarding repairs to the obstacle? B.

Here, we must determine whether the challenged decisions are of the kind that the discretionary function exception was designed to shield. In other words, were these decisions based on public policy? In essence, Hawes argues that the proper focus of the inquiry is not on the Government’s decision to repair the Scale of Integrity, but solely on the decisions made by SSgt. Raventos while repairing the obstacle itself. Hawes concedes that the decision to replace the beam on the Scale of Integrity involved policy considerations.

For Hawes, however, any considerations of public policy ended with that decision. “Public policy,” as used in this specific context, is defined as involving considerations of economic, social, or political policy. See Gaubert, 499 U.S. at 323, 111 S.Ct. 1267. This court has interpreted Gaubert to require that we look to the nature of the challenged decision in an objective or general sense. See Baum, 986 F.2d at 720-21. However, this does not mean that we ignore the actual conduct challenged. The Gaubert Court listed and examined the specific allegations made by the plaintiffs in that case.

See Gaubert, 499 U.S. at 327-28, 111 S.Ct. 1267. There, examining charges that federal regulators assumed day-to-day decision making authority and negligently discharged their duties, the Court examined challenged conduct such as government regulators mediating salary disputes. Id. at 328, 111 S.Ct. 1267. “The question in this case is whether the governmental activities challenged by petitioners are of this discretionary nature.” Berkovitz, 486 U.S. at 539, 108 S.Ct. 1954 (emphasis added). Therefore, while we focus on SSgt.

Raventos’s decisions to cease the repair of the Scale of Integrity until after the weekend holiday and the alleged failure to warn adequately, we view these decisions in an objective or general sense, keeping in mind the context within which they were made. Viewing the decisions in question through that lens, we then seek to determine whether the decisions in question were based on considerations of public policy. In this circuit, we have interpreted the phrase “public policy” broadly to include a wide variety of government judgments.

In Baum, we held that the National Park Service’s judgments regarding the maintenance of its bridges and guardrails were covered by the discretionary function exception because they pertained to the allocation of government resources, a consideration “inherently bound up in considerations of economic and political policy.” Baum, 986 F.2d at 724. Similarly in Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.1987), we held that the failure of the National Park Service to erect a guardrail was a policy determination.

There, we stated that: [ wjhether the decision grew out of a lack of financial resources, a desire to preserve the natural beauty of the vista, a judgment that the hazard was insufficient to warrant a guardrail, or a combination of all three is not known. What is obvious is that the decision was the result of a policy judgment. Id. Further, in Smith v.

WMATA, 290 F.3d 201, 205, 212 (4th Cir.2002), we applied FTCA principles to a case in which the plaintiffs challenged WMATA’s alleged failure to repair and maintain its escalators and “conclude[d] that the [WMATA] is entitled to be accorded immunity under the discretionary function exception for its decisions at the Bethesda station ... (1) to brake escalator one and utilize it as a stationary walker; (2) to leave escalator three disassembled; and (3) to provide no specific warning to its patrons of the situation at the station.” There, we found that the repair/maintenance decisions regarding the escalators “implicated the ecopolicy of the METRO, i.e., whether it was more cost-effective to reassemble Escalator Three pending repair, or whether to wait until replacement parts arrived.” Id. at 210.

In the face of this broad, unflinching history, Hawes charges that the challenged decisions do not constitute the types of decisions intended to be covered by the discretionary function exception because they are not susceptible to a policy analysis. Hawes relies heavily on our language in Baum, where we stated that “we do not suggest that every maintenance decision of every government actor is so policy-based as to fall within the discretionary function exception,” Baum, 986 F.2d at 724, and argues that SSgt.

Raven-tos’s decisions to leave the plank unbolted and not provide an adequate warning are exactly the types of decisions the above language contemplates. However, it is well established in this circuit that “when discretionary decisions are ones of professional military discretion, they are due the courts’ highest deference.” Minns, 155 F.3d at 451 (citing Tiffany v. United States, 931 F.2d 271, 277 (4th Cir.1991)). Given that level of deference, in combination with this circuit’s broad discretionary function exception jurisprudence, we believe it is plain that SSgt.

Raventos’s actions are covered by the exception. SSgt. Raventos, a Marine, was charged with repairing military equipment used to train marines for combat on a military base. In order to compléte this task SSgt. Raventos had military resources, including four marines, at his disposal. Because the repair of military equipment on a military base involves the allocation and management of scarce military resources, we find that the underlying decisions implicate economic policy. Critically, SSgt.

Raventos was also acting with an eye toward military policy when he made the discretionary decisions to leave the plank unbolted and to dismiss his marines for the day. It must be reiterated that the purpose of this military equipment was to train marines for combat. As Major Clarke testified: “[The NATO obstacle course] 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).

Thus, this military equipment is integral to the Marine Corps’ policy of effectively training Marines for combat while reducing unnecessary risks. Finally, SSgt. Raventos’s decisions were grounded in Base policy. SSgt. Raventos testified that “[ra]ost Marines and Navy personnel know that they need authorization to go to these courses and need a Navy corpsman available just in case injury happens.” J.A. 900. He further testified that these rules constituted a “standing order.” Id. at 901. In fact, Maj. Clarke had closed the obstacle course when the new plank was received. Id. at 780.

As a result, anyone who, in accordance with military policy, made a formal request to use the course, would be denied. Id. Still further, the Base’s Standard Operating Procedures for training areas, implemented to ensure the safe use and maintenance of the training areas, mandated that anyone who runs “any of the course, whether it’s the NATO Obstacle or Confidence Course ... needs to inspect the course before they run it.” J.A. 664, 783. Contrary to Hawes’s assertions, we cannot view SSgt. Raventos’s decision in a vacuum.

Nor can we engage in the academic exercise of breaking down the completion of a task into pieces so infinitesimal that we lose sight of the context in which those decisions were made. As was stated earlier, we must view any challenged decisions through the tinted lense of context to determine whether they are susceptible to policy analysis. In Smith we did just that.

There, after finding that the repair/maintenance decisions regarding the escalators “implicated the ecopolicy of the METRO, i.e., whether it was more cost-effective to reassemble Escalator Three pending repair, or whether to wait until replacement parts arrived,” Smith, 290 F.3d at 210, we found that the discretionary function exception protected not only the decisions to use one escalator as a stationary walker and the decision to leave another escalator disassembled, but also the decision “to provide no specific warning to its patrons of the situation at the station.” Id. at 212.

The same broad coverage must be applied in this case. SSgt. Raventos was charged with repairing military equipment, which was a discretionary function. This fact mandates that we protect the underlying decisions integral to the exercise of that discretion. Otherwise, we say to the military “you have the discretion to maintain military equipment but you don’t have the discretion to determine how you do so.” Importantly, we note that there is no allegation that Hawes’s injuries were caused by actions or decisions falling outside the scope of said repairs.

Thus, the result Hawes seeks would inject this court within the military chain of command and have us second guess SSgt. Raventos’s decisions concerning the completion of a military task and the marines within his charge. We see no sound reason to navigate that minefield. As such, we find that the district court did not err in finding that the decisions in question were protected by the discretionary function exception. The decision of the district court is therefore AFFIRMED. . According to SSgt. Raventos, he placed two cones on top of the beam and two cones at the foot of the beam. J.A. 897. . In Zielinski v.

United States, 89 F.3d 831, 1996 WL 329492, at *3 (4th Cir. June 6, 1996), this court endorsed the Ninth Circuit's view that the plaintiff bears the initial burden of persuading the court that it has jurisdiction under the FTCA’s general waiver of immunity. After this burden is satisfied, the burden falls on the government to prove the applicability of an exception to the FTCA. Prescott v. United States, 973 F.2d 696, 701 (9th Cir.1992). However, because unpublished opinions have no precedential value in this circuit, see Local Rule 36(c), we rely on Williams. . See also Patton Electric Co. v.

United States, 64 F.Supp.2d 580, 583 (E.D.Va.1999) ("Deciding when a product safety alert should be issued, how the alert should be communicated to federal customers, and how to identify, gather, and repair the defective products are essentially cost-benefit economic and political decisions.”). . In Gaubert, the Court stated: There are obviously discretionary acts performed by a Government agent that are within the scope of his employment but not within the discretionary function exception because these acts cannot be said to be based on the purposes that the regulatory regime seeks to accomplish.

If one of the officials involved in this case drove an automobile on a mission connected with his official duties and negligently collided with another car, the exception would not apply. Although driving requires the constant exercise of discretion, the official's decisions in exercising that discretion can hardly be said to be grounded in regulatory policy. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. The dissent analogizes the conduct in question here to the above example, and argues that the conduct in question here was not grounded in regulatory policy.

However, the conduct in this case, unlike that in the Gaubert example, was not tangential, but instead directly related to the completion of the task at hand. It is undisputed that the military possessed the discretion to maintain military equipment. While maintaining the Scale of Integrity, SSgt. Raventos exercised this discretion with an eye toward military and economic policy. The challenged decisions were integral to the completion of the task for which the discretion in question existed. Because of this, we are not persuaded that the cited Gaubert example is on point here. .

This critical fact is an important distinction between the facts of this case and Gotha v. United States, 115 F.3d 176 (3d Cir.1997), which the dissent cites to support its position. In Gotha, the Third Circuit faced a challenge to the Navy's failure to provide a stairway with handrails and sufficient lighting on a public road. Id. at 178. There, where an employee of an independent contractor hired by the Navy to perform maintenance such as plumbing, carpentry, and roofing on the United States Naval UnderWater Tracking Range fell and was injured, Gotha v.

United States, 929 F.Supp. 207, 209 (D.Vi.1996) (overruled), the Third Circuit held that the discretionary function exception was not applicable. Gotha, 115 F.3d at 182. However, the maintenance in Gotha, unlike that before us today, had no relation to the military or to national security, except that the roofs the independent contractors were hired to maintain were located on a military base.

As the Third Circuit correctly found, "[tjhis case is not about a national security concern, but rather a mundane, administrative, garden-variety, housekeeping problem that is about as far removed from the policies applicable to the Navy's mission.” Id. at 181. Given that the purpose of the NATO obstacle course was to train marines for combat and not to simply facilitate exercise, the maintenance here clearly was related to national security. The Marine Corps' policy of effectively training Marines for combat while reducing unnecessary risks was implicated.

Because of this distinction, this case is not about "mundane, administrative, garden variety, housekeeping” problems, and the result reached here is not at odds with that reached by the Gotha court. Id. Further, we would note that Gotha appears to be somewhat at odds with our decision in Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir.1987), where we held that the failure of the National Park Service to erect a guardrail was a policy determination protected by the discretionary function exception. In fact, the Third Circuit recognized the factual similarity between the two cases. Id. at 182.

While the Third Circuit was under no binding obligation to follow Bowman, its precedential value is obviously much greater in this court. . As the Gaubert court noted, the fact that they are operational in nature is of no consequence. See Gaubert, 499 U.S. at 325, 111 S.Ct. 1267.