S.R.P. Ex Rel. Abunabba v. United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 10-4011

______

S.R.P. (a minor),

by and through Maria Rivera Abunabba

(as mother and next of kin)

S.R.P.,

Appellant

v.

UNITED STATES OF AMERICA;

NATIONAL PARK SERVICE,

U.S. DEPARTMENT OF INTERIOR

______

On Appeal from the District Court

of the Virgin Islands – Appellate Division

Division of St. Croix

(D.C. No. 1-06-cv-00080)

District Judge: Honorable Raymond L. Finch

______

Argued December 5, 2011

Before: FISHER, GREENAWAY, JR. and

ROTH, Circuit Judges.

(Filed: April 10, 2012)

Pamela L. Colon (Argued)

27 & 28 King Cross Street

Phoenix Court Business Complex

Christiansted, St. Croix, USVI 00820

Counsel for Appellant

Thomas M. Bondy

Lowell V. Sturgill, Jr. (Argued)

United States Department of Justice

Civil Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Angela P. Tyson-Floyd

Office of United States Attorney

1108 King Street, Suite 201

Christiansted, VI 00820

Counsel for Appellees

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

S.R.P., a minor, appeals from an order of the District

Court dismissing his claims for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

2

The action arose out of a 2004 incident in which S.R.P. was

bitten by a barracuda while playing near the shore of Buck

Island Reef National Monument (“Buck Island Monument” or

“the Monument”). S.R.P., through his mother, filed suit

against the United States under the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. § 2671 et seq., alleging that the

Government negligently failed to warn of the danger posed by

barracudas to shallow water bathers. The District Court

dismissed the case on the basis that the discretionary function

exception to the FTCA deprived it of jurisdiction, and thus

immunized the Government from suit. For the reasons set

forth below, we will affirm.

I. Facts and Procedural History

On May 9, 2004, while sitting on the beach at Buck

Island (“Buck Island” or “the Island”) with his feet in shallow

water, then 12-year-old S.R.P. was bitten by a barracuda and

suffered a severe laceration to his foot. His third and fourth

toes were nearly severed and surgery was required to repair

the damage. Buck Island is located 1.25 miles off the

northeast side of the island of St. Croix in the U.S. Virgin

Islands. It is a unit of the National Park System under the

control and management of the National Park Service (“the

NPS”). Prior to 2001, Buck Island Monument included Buck

Island itself and 704 marine acres surrounding the island. In

2001, President Clinton issued an executive proclamation

expanding the boundaries of the Monument, designating the

surrounding 18,869 marine acres as a protected area, and

directing the Secretary of the Interior to “prohibit all

extractive uses.” Proclamation No. 7392, 66 Fed. Reg. 7336

3

(Jan. 17, 2001). Pursuant to this directive, in 2003, Buck

Island and its surrounding waters were closed to fishing.

Buck Island is accessible only by watercraft, and is

open to the public for recreational activities, such as

swimming, picnicking, hiking, snorkeling, and scuba diving.

Approximately 55,000 to 60,000 people visit each year. Most

tourists travel to the Island via private concessionaries, which

offer half-day or full-day trips. Visitors may also access

Buck Island by private boat, but any owner of a vessel who

wishes to visit must apply for an anchoring permit. At the

time of application, boat owners receive a packet of

information, including the Buck Island Reef Brochure (“the

Buck Island brochure”), which provides general information

about Buck Island, including natural hazards in the area. A

portion of the brochure labeled “Safety Tips for Sea and

Shore” states:

Reef and marine hazards: Shallows and reefs

near shore contain sharp corals, stingrays, spiny

sea urchins, fire coral, fire worms, and barbed

snails. Cuts from marine organisms infect

quickly, so clean and medicate them.

Portuguese man-o-war and sea wasps, both

stinging jellyfish, are rarely found here.

Barracuda and sharks, if encountered, should be

treated with caution but are not usually

aggressive toward snorkelers.

The same information is posted, in both English and Spanish,

on signs located at the picnic areas on the Island.

4

Barracuda is a species of fish indigenous to the

Caribbean Sea and the waters around Buck Island. Although

barracudas are not generally aggressive toward humans, it is

believed that they may attack humans if they mistake a limb

or other body appendage for prey. Prior to the attack at issue

in this case, NPS officials were aware of only one other

incident in the previous twenty-two years in which a

barracuda had bitten a human at or around Buck Island. In

that attack, which occurred sometime before 1999, a boat

captain was bitten while sitting on the side of his boat with

his feet dangling in the water. The NPS attributed the attack

to the boat captain’s pouring fish oil in the water around his

feet. At the time he was bitten, there were several snorkelers

in the water nearby, none of whom were attacked.

On June 16, 2006, S.R.P., through his mother, brought

a tort action against the United States under the FTCA,

alleging that the NPS failed to adequately warn visitors about

the dangers posed by barracudas, and that the NPS failed to

properly staff Buck Island. 1 On October 27, 2009, the

Government moved to dismiss the case for lack of subject

matter jurisdiction under Federal Rule of Civil Procedure

12(b)(1) on the basis that the FTCA’s discretionary function

exception applied. After allowing discovery on the

jurisdictional question, the District Court of the Virgin Islands

granted the motion to dismiss on October 1, 2010, concluding

that the discretionary function exception barred S.R.P.’s

claims because NPS policies gave local NPS officials

1

S.R.P. does not appeal the District Court’s dismissal

of his negligent staffing claim.

5

discretion to craft appropriate warnings regarding potential

safety hazards, and the question of whether and to what extent

to warn involved significant policy considerations. Perez v.

United States, No. 06-0080, 2010 WL 3927628 (D.V.I.

Oct. 1, 2010).

S.R.P. filed a timely notice of appeal. His primary

contention on appeal is that the District Court erred in

concluding that the discretionary function exception barred

his claims because the NPS was aware that barracudas posed

a danger to swimmers, and thus had a non-discretionary duty

to warn. He also argues that the District Court failed to apply

the relaxed standard required for factual challenges to subject

matter jurisdiction under Rule 12(b)(1), and that the District

Court improperly shifted to him the burden of proving the

non-applicability of the discretionary function exception.

II. Jurisdiction and Standard of Review

S.R.P.’s complaint invoked the District Court’s

jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3),

1367(a), and the FTCA, 28 U.S.C. §§ 2674 and 1346(b). We

have appellate jurisdiction over an appeal from a dismissal for

lack of subject matter jurisdiction under 28 U.S.C. § 1291.

Because the Government’s motion presented a factual

challenge to subject matter jurisdiction, the District Court was

not confined to the allegations in S.R.P.’s complaint, and was

entitled to independently evaluate the evidence to resolve

disputes over jurisdictional facts. Turicentro, S.A. v. Am.

Airlines, Inc., 303 F.3d 293, 300 n.4 (3d Cir. 2002) (overruled

on other grounds by Animal Sci. Prods., Inc. v. China

Minmetals Corp., 654 F.3d 462 (3d Cir. 2011)); Mortensen v.

6

First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.

1977). We exercise plenary review over the applicability of

the discretionary function exception. Merando v. United

States, 517 F.3d 160, 163-64 (3d Cir. 2008). We review the

District Court’s findings of fact related to jurisdiction for

clear error. CNA v. United States, 535 F.3d 132, 139 (3d Cir.

2008). We exercise plenary review in determining whether

the District Court applied the correct standard in evaluating a

motion to dismiss under Federal Rule of Civil Procedure

12(b)(1) and whether it placed the burden of proof on the

proper party. See id.

III. Discussion

A. The Federal Tort Claims Act Framework

The United States, “as a sovereign, is immune from

suit unless it consents to be sued.” Merando, 517 F.3d at 164

(citing United States v. Mitchell, 445 U.S. 535, 538 (1980)).

The FTCA is a “partial abrogation” of that immunity, Gotha

v. United States, 115 F.3d 176, 179 (3d Cir. 1997), and

permits suits against the United States for torts committed by

“any employee of the Government while acting within the

scope of his office or employment, 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,” 28 U.S.C. § 1346(b)(1). The

FTCA, however, “imposes a significant limitation,” Gotha,

115 F.3d at 179, by providing that the provisions of 28 U.S.C.

§ 1346 shall not apply to:

7

[a]ny 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).

This discretionary function 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 exception “does not apply to every situation in

which there is an actual option to choose between courses of

action or inaction.” Gotha, 115 F.3d at 179. Rather, it

immunizes from second-guessing “legislative and

administrative decisions grounded in social, economic, and

political policy.” Id. (citing Varig Airlines, 467 U.S. at 814).

As a threshold matter, before determining whether the

discretionary function exception applies, a court must identify

the conduct at issue. Merando, 517 F.3d at 165. The court

must then follow a two-step inquiry to determine whether the

discretionary function exception immunizes the government

from a suit arising out of such conduct. Id. at 164. “First, a

8

court must determine whether the act giving rise to the

alleged injury and thus the suit involve[d] an ‘element of

judgment or choice.’” Id. (citing United States v. Gaubert,

499 U.S. 315, 322 (1991)). If a “federal statute, regulation, or

policy specifically prescribes a course of action for an

employee to follow,” the exception does not apply because

“the employee has no rightful option but to adhere to the

directive.” Berkovitz v. United States, 486 U.S. 531, 536

(1988). However, where a specific course of action is not

prescribed, we proceed to the second step, which requires us

to determine “whether the challenged action or inaction ‘is of

the kind that the discretionary function exception was

designed to shield.’” Gotha, 115 F.3d at 179 (quoting

Berkovitz, 486 U.S. at 536). “Because the purpose of the

exception is to prevent judicial ‘second-guessing’ of

legislative and administrative decisions grounded in social,

economic, and political policy . . . the exception protects only

governmental actions and decisions based on considerations

of public policy.” Gaubert, 499 U.S. at 323 (internal marks

and citations omitted). The “focus of the inquiry is not on 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.” Id. at

325.

Although a plaintiff bears the burden of establishing

that his claims fall within the scope of the FTCA’s waiver of

the federal government’s sovereign immunity (i.e., that the

requirements of 28 U.S.C. § 1346(b)(1) are met), the

9

Government has the burden of proving the applicability of the

discretionary function exception. 2 Merando, 517 F.3d at 164.

2

We recognize that at least one of our sister circuits

holds that where the Government raises the discretionary

function exception, the plaintiff bears the burden to prove that

the exception does not apply. See Aragon v. United States,

146 F.3d 819, 823 (10th Cir. 1998). Several other courts of

appeals have declined to decide the issue. See St. Tammany

Parish v. FEMA, 556 F.3d 307, 315 n.3 (5th Cir. 2009)

(collecting cases). We acknowledge that the Supreme Court’s

statement in United States v. Gaubert, 499 U.S. 315, 324-25

(1991), that “[f]or a complaint to survive a motion to dismiss,

it must allege facts which would support a finding that the

challenged actions are not the kind of conduct that can be said

to be grounded in the policy of the regulatory regime” creates

some uncertainty as to where the Court intended to place the

burden.

10

B. The Applicability of the Discretionary

Function Exception

We turn now to S.R.P.’s contention that the District

Court erred in concluding that the challenged conduct is

protected by the discretionary function exception.

1.

Before engaging in the two-part discretionary function

analysis, we must identify the challenged conduct. Merando,

517 F.3d at 165. S.R.P.’s complaint states:

However, absent an explicit statement from the

Supreme Court that the plaintiff bears the ultimate burden, we

continue to believe that the burden of proving the

applicability of the discretionary function exception is most

appropriately placed on the Government. Although the

discretionary function exception is jurisdictional on its face, it

is analogous to an affirmative defense. Therefore, just as a

plaintiff cannot be expected to disprove every affirmative

defense that a defendant could potentially raise, so too should

a plaintiff not be expected to disprove every exception to the

FTCA. Moreover, the Government will generally be in the

best position to prove facts relevant to the applicability of the

discretionary function exception. Our view is in accord with

that of the U.S. Courts of Appeals for the Sixth, Seventh, and

Ninth Circuits. See Prescott v. United States, 973 F.2d 696,

702 (9th Cir. 1992); Carlyle v. United States, 674 F.2d 554,

556 (6th Cir. 1982); Stewart v. United States, 199 F.2d 517,

520 (7th Cir. 1952).

11

Defendant NPS created and or maintained a

dangerous condition on Buck Island in that

there were no signs on the premises of Buck

Island warning visitors of the existence of

barracudas and/or large predatory fish on or

near the premises of Buck Island. . . . At all

times relevant herein, Defendant NPS knew or

should have known of the dangerous conditions

it created on Buck Island.

Despite the broad language of his complaint, S.R.P. does not

allege that the NPS provided no warnings at all regarding the

presence of barracudas in the waters surrounding Buck Island.

He acknowledges that the Buck Island Reef Brochure states

that “[b]arracuda and sharks, if encountered, should be treated

with caution but are not usually aggressive toward

snorkelers.” Instead, he claims that such warnings, by their

terms, apply only to snorkelers, and are therefore inadequate

to advise shallow water bathers of the risk of a barracuda

attack. Thus, he alleges that the NPS was negligent in failing

to adequately warn visitors about the possibility of a shoreline

barracuda attack.

A key dispute in this case is the extent of the NPS’s

knowledge regarding the dangers posed by barracudas.

S.R.P. argues that the NPS was aware that barracudas might

attack shoreline swimmers. The Government, however,

maintains that although NPS officials were aware in the most

general sense that barracudas could be dangerous to humans,

they had no information to suggest that barracudas posed a

12

risk to shoreline swimmers specifically. 3 Accordingly, the

conduct at issue is the NPS’s judgment regarding whether to

provide warnings and the extent of any such warnings, in

light of the information available.

2.

We must first determine whether a statute, regulation,

or other policy required the NPS to warn of hazardous

conditions in a specific manner, or whether the NPS’s actions

were discretionary because they involved an “element of

judgment or choice.” Gaubert, 499 U.S. at 322. After

reviewing the applicable policies, we are convinced that NPS

officials are explicitly vested with broad discretion regarding

the manner in which to warn the public of dangerous

conditions in national parks.

Under the NPS Organic Act, 16 U.S.C. § 1, the NPS is

charged with

promot[ing] and regulat[ing] the use of . . .

national parks . . . by such means and measures

as conform to the fundamental purpose of the

said parks, . . . which purpose is to conserve the

scenery and the natural and historic objects and

3

We review the District Court’s findings of fact

related to jurisdiction for clear error. CNA v. United States,

535 F.3d 132, 139 (3d Cir. 2008). The District Court agreed

with the Government’s position and as we will explain later,

the District Court’s finding was not clearly erroneous.

13

the wild life therein and to provide for the

enjoyment of the same in such manner and by

such means as will leave them unimpaired for

the enjoyment of future generations.

To implement this statutory directive, the NPS has adopted

various policies and internal operating procedures, including

those related to public safety and signage. The 2001 NPS

Management Policies (“Management Policies” or “the

Policies”) provides:

While recognizing that there are limitations on

its capability to totally eliminate all hazards, the

Service . . . will seek to provide a safe and

healthful environment for visitors and

employees. . . . The Service will strive to

identify recognizable threats to the safety and

health of persons and to the protection of

property. . . . When practicable, and consistent

with congressionally designated purposes and

mandates, the Service will reduce or remove

known hazards and apply other appropriate

measures, including closures, guarding, signing,

or other forms of education. In doing so, the

Service’s preferred actions will be those that

have the least impact on park resources and

values.

National Park Service, 2001 Management Policies, at

¶ 8.2.5.1 (2001) (emphasis added).

14

The Management Policies thus clearly envision a

system in which NPS officials will attempt to strike a balance

between preservation of a park’s scenery and natural

resources and public safety. However, the Policies do not

specifically dictate the way in which park officials should

balance these concerns or the specific actions that must be

taken in response to particular problems. In fact, the Policies

provides:

These management policies do not impose park-

specific visitor safety prescriptions. The means

by which public safety concerns are to be

addressed is left to the discretion of

superintendents and other decision-makers at

the park level, who must work within the limits

of funding and staffing. Examples include

decisions about whether to install warning signs

or artificial lighting; distribute weather

warnings or advisories; . . . eliminate potentially

dangerous animals; close roads and trails; or

install guardrails and fences[.]

Id. (emphasis added).

These policy statements clearly vest local NPS

officials with broad discretion to develop appropriate

responses to natural hazards, including the posting of signs,

based on a weighing of the applicable policy interests.

The NPS Sign Manual provides: “the individual park

manager . . . has the responsibility for determining whether or

not a sign is necessary or appropriate at a given location. The

15

decision to utilize a particular sign at a particular location

requires the professional judgment of the park manager[.]”

National Park Service Sign Manual, at ¶ 1-1 (Jan. 1988). In

making such decisions, park officials are to “bear in mind

long standing NPS policy to minimally intrude upon the

natural or historic setting in National Park System areas, and

to avoid an unnecessary proliferation of signs, while striving

to ensure for the safety of park visitors.” Id. The

Management Policies further provides that “[s]igns will be

held to the minimum number, size, and wording required to

serve their intended functions.” Management Policies, at

¶ 9.3.1.1. As these policies make evident, local NPS officials

are afforded discretion both as to whether to post warning

signs and as to the content of such signs. Accordingly, we

hold that no statute, regulation, or policy mandated any

particular method for warning about marine hazards at Buck

Island. 4 The NPS’s “decisions as to the precise manner in

which to do so, and its execution of those decisions,”

Merando, 517 F.3d at 168, were discretionary because they

involved an “element of judgment or choice,” see Gaubert,

499 U.S. at 322.

Our conclusion is in accord with those of other courts

that have addressed the issue. As the U.S. Court of Appeals

for the Ninth Circuit explained in Blackburn v. United States,

“the [NPS] policy manuals’ broad mandate to warn the public

of and protect it from special hazards involves the exercise of

discretion in identifying such hazards, in determining which

4

S.R.P. has not identified any Buck Island-specific

policies or regulations that would dictate a different result.

16

hazards require an explicit warning and in determining the

precise manner in which to warn it of those hazards.” 100

F.3d 1426, 1431 (9th Cir. 1996) (citations omitted). “Because

the NPS cannot apprise the public of every potential danger

posed by every feature of [a national park], a degree of

judgment is required in order to determine which hazards

require an explicit warning and which hazards speak for

themselves.” Valdez v. United States, 56 F.3d 1177, 1180

(9th Cir. 1995); see also Terbush v. United States, 516 F.3d

1125, 1128, 1140 (9th Cir. 2008) (finding that the decision

not to post warning signs regarding a recent rockfall at

Yosemite National Park was discretionary); Elder v. United

States, 312 F.3d 1172, 1176-80 (10th Cir. 2002) (concluding

that the decision whether to post additional signs warning of

the danger of algae in streams at Zion National Park was

discretionary); Shanksy v. United States, 164 F.3d 688, 690,

692 (1st Cir. 1999) (holding that the NPS’s decision as to

whether to post warning signs at the exit of a historical

building was discretionary).

3.

Having concluded that no statute, regulation, or policy

mandates specific action by NPS officials with respect to

warning signs on Buck Island, we must now determine

whether the discretionary judgment afforded to NPS is “of the

kind that the discretionary function exception was designed to

shield.” Berkovitz, 486 U.S. at 536. Only those decisions

“susceptible to policy analysis” are protected by the

exception. Gaubert, 499 U.S. at 325. We begin by noting

that “[w]hen established governmental policy, as expressed or

implied by statute, regulation, or agency guidelines, allows a

17

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. That presumption, however, can

be rebutted. Cestonaro v. United States, 211 F.3d 749, 755

n.4 (3d Cir. 2000). In fact, we have made clear that

“susceptibility analysis is not a toothless standard that the

[G]overnment can satisfy merely by associating a decision

with a regulatory concern.” Id. at 755 (internal marks and

citation omitted). Rather, the Government must establish that

the challenged conduct is “grounded in the policy of the

regulatory regime,” and “based on the purposes that the . . .

regime seeks to accomplish,” Gaubert, 499 U.S. at 325 & n.7.

In other words, there must be a “rational nexus” between the

Government’s decision and “social, economic, and political

concerns.” Cestonaro, 211 F.3d at 759.

We conclude that the NPS’s decision not to post

additional warning signs or add language to existing warning

signs regarding the danger of a shoreline barracuda attack is

susceptible to policy analysis because in determining the

number, size, and content of warning signs, the NPS had to

weigh the potential benefits of additional warnings against the

costs of such warnings, including the risk of numbing Buck

Island visitors to all warnings. Such a determination is

directly related to the NPS’s mission of preserving national

parks while ensuring public safety and is thus firmly

“grounded in the policy of the regulatory regime.” See

Gaubert, 499 U.S. at 325.

Buck Island is an offshore island in a “wild open ocean

circumstance,” in which virtually unlimited natural hazards

are present, and the NPS must make a policy determination as

18

to which dangers are significant enough to merit specific

attention on a warning sign. We have previously held that

assessments of the respective degrees of risk presented by

natural hazards and decisions regarding appropriate responses

to such risks are susceptible to policy analysis. For example,

in Merando v. United States, the plaintiffs challenged the

manner in which the NPS located and removed hazardous

trees. 517 F.3d at 162. In finding the discretionary function

exception applicable, we stated that “knowing that it could

not inspect every tree in the Park, the Park Service decided to

expend the bulk of its resources on high-visitor use areas.”

Id. at 174. Likewise, in Mitchell v. United States, 225 F.3d

361, 363, 366 (3d Cir. 2000), we held that the NPS’s choice

not to repair or improve a drainage ditch and concrete head-

wall located near a paved roadway was susceptible to policy

analysis because the NPS “was forced to determine priorities

among the desirable improvements” and “repair the most

urgent problems first.” We explained that, compared to other

problems with the roadway, the defect complained of by the

plaintiff presented only a “low risk of accident.” Id. at 366.

Similarly, here, knowing that it could not warn of

every potential hazard at Buck Island, the NPS decided to

focus on those it reasonably believed posed the most

significant threat to visitors. Moreover, too many warning

signs and brochures “would inevitably reduce the impact of

the individual warnings on the public,” Valdez, 56 F.3d at

1180, as would excessive warnings on any individual sign.

Once an agency identifies a hazard, it “must then balance that

risk against the cost of warning about that hazard and the

possibility of overloading visitors with unnecessary

19

warnings.” Perez, 2010 WL 3927628, at *12 (citations

omitted). Such a judgment represents precisely the type of

policy choice that the discretionary function exception

prohibits us from second-guessing. Accordingly, we reject

S.R.P.’s contention that once the Government decides to

warn, it is no longer protected by the discretionary function

exception. The exception protects both the decision whether

to warn and decisions regarding the scope and content of such

warnings. We agree with the District Court that “Congress

[did not] create[] the discretionary function exception only to

force the NPS into the Catch-22 of choosing between issuing

no warnings at all and posting warnings about every

conceivable danger, no matter how remote or hypothetical.”

Id. at *14; see Shanksy, 164 F.3d at 694 (rejecting the

plaintiff’s argument that once the Government “decided to

effectuate some modern safety measures, it became obliged to

take all feasible safety measures”). Even if S.R.P. is

advocating only for the incorporation of additional language

regarding barracudas into existing warning signs, “such a

change would necessitate a chain of further decisions,” Elder,

312 F.3d at 1183, including whether to explain how to

identify barracudas, and whether to offer detailed advice

about what someone should do if he or she encounters a

barracuda. Indeed, in his brief, S.R.P. argues that the Buck

Island brochure should have explained in greater detail what

it means to treat barracudas with “caution.” 5

5

At her deposition, Zandy Hillis-Starr, the local NPS

official responsible for overseeing marine research in St.

Croix, testified that she understood the warning to mean “to

20

The Government draws our attention to the U.S. Court

of Appeals for the Tenth Circuit’s decision in Elder v. United

States, 312 F.3d 1172 (10th Cir. 2002), which is instructive

because it presents a factual scenario strikingly similar to that

in our case. The suit in Elder arose out of a 1997 incident, in

which a twelve-year-old boy died while attempting to cross a

stream at the Middle Emerald Pools in Zion National Park.

Id. at 1174. As he stepped into the stream, the boy slipped on

slick algae, slid downstream, fell over a ledge, and plunged

more than 100 feet onto the rocks below. Id. Along the trail

to the Middle Emerald Pools, there were numerous signs

warning visitors of various hazards and cautioning visitors to

stay on the trail. Id. at 1174-75. No signs specifically

mentioned the danger of algae in the streams. Id. at 1175.

Nor were there any barriers preventing visitors from leaving

the trail and walking into the stream. Id. After the accident,

the plaintiffs brought suit against the United States under the

FTCA, alleging that the NPS was negligent for failing to

specifically warn of the algae hazard and for failing to

provide adequate barriers to prevent visitors from falling over

the ledge. Id. at 1176. In response to the Government’s

not approach [a wild animal], to not threaten it, to not be

aggressive toward it . . . [t]o observe it quietly, and to move

away if you feel at all threatened.” S.R.P. apparently wants

this common sense definition included in the Buck Island

brochure. Although the adequacy of the language in the

brochure relates more directly to S.R.P.’s underlying

negligence claim, we note that a warning brochure cannot be

expected to include a definition of every term therein.

21

motion to dismiss based on the discretionary function

exception, the plaintiffs argued that decisions regarding

barriers and signs at the Middle Emerald Pools involved no

policy considerations because park officials’ sole

consideration should have been park safety. Id. at 1181. The

Tenth Circuit disagreed, reasoning that “park officials must

weigh the cost of safety measures against the additional safety

that will be achieved. Even inexpensive signs may not be

worth their cost.” Id. Additionally, “in a national park whose

purpose is to preserve nature and display beauty to the public,

any safety measure must be weighed against damage to

natural resources and aesthetic values.” Id.

We acknowledge that if the discretionary function

exception is given an overly broad construction, it could

easily swallow the FTCA’s general waiver of sovereign

immunity and frustrate the purpose of the statute.

Accordingly, we have held that where the Government is

aware of a specific risk and responding to that risk would

only require the Government to take garden-variety remedial

steps, the discretionary function exception does not apply.

Finding that such cases are outside the scope of the

discretionary function exception is consistent with the

primary purpose of the FTCA. Cestonaro, 211 F.3d at 755.

As the Supreme Court has explained, “[u]ppermost in the

collective mind of Congress [when it passed the FTCA] were

the ordinary common-law torts.” Dalehite v. United States,

346 U.S. 15, 28 (1953) (partially overruled on other grounds

by Rayonier, Inc. v. United States, 352 U.S. 315 (1957)).

“[C]ongressional thought was centered on granting relief for

the run-of-the-[mill] accidents,” id. at 28 n.19, which

22

occurred due to the Government’s failure to take basic steps

to alleviate specific safety concerns. In such a situation, the

Government’s conduct is analogous to that of a private citizen

who fails to take appropriate action to ensure the safety of

visitors on his or her property, and thus no broad public

policy concerns are implicated.

In arguing that the NPS’s decision regarding warning

signage at Buck Island was analogous to an “ordinary

common law-tort[],” id. at 28, and thus not susceptible to

policy analysis, S.R.P. relies on our decisions in Gotha v.

United States, 115 F.3d 176 (3d Cir. 1997), and Cestonaro v.

United States, 211 F.3d 749 (3d Cir. 2000). Because the key

distinctions between those cases and our case are factual, we

will review them in some detail. In Gotha, we addressed

whether the United States Navy’s failure to install a handrail

or lighting on a steep pathway at a Navy facility in the Virgin

Islands was protected by the discretionary function exception.

115 F.3d at 178. In that case, the plaintiff fell and injured her

ankle while walking on an unlit, unpaved path approximately

fifteen to twenty feet in length, which dropped downward at a

steep angle. Id. She brought suit against the Government

under the FTCA, alleging that the Navy was negligent for

failing to provide a stairway with handrails and for neglecting

to provide sufficient lighting on the pathway. Id.

Significantly, there was evidence that the Navy was aware of

the risk because it had been asked on several previous

occasions to build a stairway or install handrails. Id. at 180.

The Government moved to dismiss under the discretionary

function exception, claiming that the Navy’s actions were

motivated by “military, social, and economic considerations.”

23

Id. at 181. The Government claimed that the Navy’s decision

was informed by the need to train in a “realistic warfare

environment,” as well as economic factors, such as budgetary

constraints, procurement regulations, and the anticipated

service life of the facility. Id. In rejecting the Government’s

argument and holding that the challenged conduct fell outside

the scope of the discretionary function exception, we

observed that the case was “not about a national security

concern, but rather a mundane, administrative, garden-

variety, housekeeping problem that [was] about as far

removed from the policies applicable to the Navy’s mission

as . . . possible.” Id. We opined that “it [was] difficult to

conceive of a case more likely to have been within the

contemplation of Congress when it abrogated sovereign

immunity than the case before us.” Id. at 182. Accordingly,

we concluded that “the challenged actions [were] not the kind

of conduct that [could] be said to be grounded in the policy of

the regulatory regime.” Id. at 181-82 (quoting Gaubert, 499

U.S. at 325).

In Cestonaro, while vacationing with his family,

Daniele Cestonaro was shot and killed in a parking lot in

Christiansted on the island of St. Croix. 211 F.3d at 751. The

parking lot fell within the boundaries of the Christiansted

National Historic Site, which was owned and controlled by

the National Park Service. Id. The plaintiff (Cestonaro’s

wife) brought suit under the FTCA, alleging that the NPS was

negligent for failing to provide adequate lighting and warning

signs in the lot. Id. at 752. The district court dismissed the

action based on the discretionary function exception, finding

that the NPS’s challenged decisions were grounded in its

24

mission to “safeguard the natural and historic integrity of

national parks” while “minimally intrud[ing] upon the setting

of such parks.” Id. at 752 (citation omitted). We reversed,

reasoning that the NPS’s decision was not related to any of

the overarching policies cited by the district court. Id. at 756.

Rather, the case involved a tort stemming from a garden

variety decision not to implement safety measures, even

though the NPS was aware that crimes had occurred in the

lot, and had received regular complaints from local business

owners about the safety of the lot. Id. at 751, 755. We stated

that a suit based on such actions was precisely the type of

case Congress contemplated when it abrogated sovereign

immunity by passing the FTCA, id. at 755-56, and thus, we

held that the Government could not “seek shelter under the

discretionary function exception,” id. at 759.

Decisions from other courts support our view that

where the Government is aware of a specific risk of harm,

and eliminating the danger would not implicate policy but

would involve only garden-variety remedial measures, the

discretionary function exception does not apply. For

example, in Boyd v. United States, 881 F.2d 895, 896, 898

(10th Cir. 1989), the U.S. Court of Appeals for the Tenth

Circuit held that the discretionary function exception did not

apply where the Army Corps of Engineers created a reservoir,

but failed to warn swimmers who regularly used a section of

the lake that motorboats also used the area. The court

reasoned that the alleged failure to warn swimmers of a

dangerous condition in a popular swimming area did not

implicate any social, economic, or political policy judgments.

Id. at 898. Similarly, in Oberson v. U.S. Dep’t of Agric., 514

25

F.3d 989, 998 (9th Cir. 2008), the U.S. Court of Appeals for

the Ninth Circuit held that where the Forest Service was

aware that two snowmobiles had recently collided on a steep

portion of a snowmobile track, the Forest Service’s failure to

post a warning or otherwise remedy the hazard was not

protected by the discretionary function exception. Likewise,

in George v. United States, 735 F. Supp. 1524, 1528, 1533

(M.D. Ala. 1990), the U.S. District Court for the Middle

District of Alabama concluded that where at least six

incidents of “aggressive alligator behavior” in a swimming

area had been reported to various park officials, the Forest

Service was on specific notice of the danger and its failure to

take remedial measures was not within the ambit of the

discretionary function exception. See also Fabend v.

Rosewood Hotels & Resorts, L.L.C., 174 F. Supp. 2d 356,

360, n.10 (D.V.I. 2001) (noting that the hazard in that case

was “well-defined and specific, not a nebulous or hidden

danger” and stating that “[w]here the danger is specific rather

than merely potential, the discretionary function exception

may not protect a government agency’s failure to warn”)

(citations omitted).

26

In our case, unlike Gotha, Cestonaro, and the other

cases cited above, the NPS was not aware of a specific risk. 6

Thus, S.R.P.’s reliance on those cases is misplaced. The

District Court found that although the NPS was aware in a

general sense that barracudas were potentially dangerous,

there was no evidence that NPS officials were or should have

been specifically aware of the risk of a shallow-water attack.

We review this finding for clear error. CNA, 535 F.3d at 139.

Under the clearly erroneous standard, we may not substitute

our findings for those of the trial court. Scully v. US WATS,

Inc., 238 F.3d 497, 506 (3d Cir. 2001). Rather, we are limited

to assessing whether there is enough evidence on the record

to support those findings. Id. “That a different set of

inferences could be drawn from the record is not

determinative. It is sufficient that the District Court findings

of fact could be reasonably inferred from the entire [] record.”

Id. (citations omitted).

The District Court explained that although NPS

officials recognized that shoreline swimmers might encounter

a barracuda, there was no evidence that the presence of

barracudas near the shore was a danger to the public. The

District Court noted that “out of hundreds of thousands of

6

Although NPS decisions regarding whether and to

what extent to warn the public of the dangers posed by

wildlife will generally be susceptible to policy analysis, it is

possible that the NPS could be aware of a safety hazard so

blatant that its failure to warn the public could not reasonably

be said to involve policy considerations. Therefore, we will

review the extent of the NPS’s knowledge in this case.

27

Buck Island visitors over the last several decades, [S.R.P.]

was the first close-to-shore bather bitten by a barracuda.”

Perez, 2010 WL 3927628, at *6. Zandy Hillis-Starr, the local

NPS official in charge of overseeing marine research in St.

Croix, testified in her deposition that she was unaware of any

prior barracuda attack on the Buck Island shoreline. The only

barracuda attack of which the NPS was aware was an attack

that occurred in deeper water and involved a boat captain

dumping fish oil into the water while dangling his feet over

the edge of a boat.

S.R.P. argues, however, that the District Court ignored

substantial evidence indicating that the NPS knew that

barracudas posed a serious risk to shallow-water swimmers.

First, S.R.P. notes that the Secretary of the Interior’s decision

to prohibit fishing in the waters surrounding Buck Island was

expected to increase the barracuda population in the area, thus

making an attack more likely. Second, he asserts that the

Buck Island brochure’s and beach signage’s advisory to

snorkelers to treat barracudas “with caution” indicates that

NPS officials were aware that barracudas were potentially

dangerous to humans. Third, he finds fault with the NPS’s

decision, after the attack on the boat captain, to warn

concessionaires not to feed the fish or put leftover food in the

water, but not to issue a similar warning to beachgoers.

Finally, S.R.P. claims that NPS officials were aware that

splashing in the “shallows” was a risk factor which increases

the likelihood of a barracuda attack.

S.R.P.’s arguments are unpersuasive. Based on the

evidence before the District Court, its finding that NPS

officials were unaware of the specific risk of a shoreline

28

barracuda attack was not clearly erroneous. First, the fact that

a boat captain in deeper water was attacked years earlier after

pouring fish oil into the water does not suggest that an

individual would be attacked while sitting on the beach with

his feet in the water without any similar substance around

him. In fact, when the boat captain was attacked, there were

several snorkelers in the area, none of whom were bitten.

Thus, the presence of fish oil around the boat captain’s feet

seems to have been a significant factor in the attack. Second,

as to S.R.P.’s argument that the fishing ban should have put

officials on notice that a barracuda attack was more likely, the

record indicates that local NPS officials actually disagreed as

to whether the fishing ban would result in an increase in the

barracuda population. However, even if the ban did lead to

such an increase, because barracudas were not thought to be

aggressive toward swimmers, the NPS would have had no

reason to anticipate an increased likelihood of attack. Third,

although the Buck Island brochure advised snorkelers to treat

barracudas “with caution,” the same brochure stated that

barracudas are not generally aggressive toward humans.

Finally, S.R.P.’s claim that the NPS was aware that splashing

in the shallows could lead to a barracuda attack is somewhat

misleading. Although Hillis-Starr testified in her deposition

that “splashing in the shallows” was a recognized risk factor

for barracuda attacks, she made this statement while

discussing the attack on the boat captain. She did not indicate

that such behavior could lead to a barracuda attack on the

shoreline. In fact, she specifically stated that it was the

combination of pouring fish oil into the water and splashing

that led to the attack. Hillis-Starr hypothesized that the

barracuda likely mistook the boat captain’s feet for food.

29

The key question under Gotha and Cestonaro is not

whether the Government was aware of danger in the most

general sense, but whether it was on notice of a specific

hazard. With no shoreline barracuda attacks in the twenty-

two years preceding the attack on S.R.P., the District Court

did not err in finding that NPS officials had no knowledge

that such an attack was likely.

Assuming, arguendo, that the NPS was aware of the

risk, a plaintiff proceeding under the FTCA can only invoke

Gotha and Cestonaro where responding to the known hazard

would only require the Government to take garden-variety

action, such as putting up a rail or installing additional

lighting, which does not implicate any overarching policy

concerns. As we explained above, the NPS’s determination

regarding the content of warning signs on Buck Island

involved significant policy considerations. Thus, under

Gotha and Cestonaro, neither condition for finding the

challenged conduct outside the scope of the discretionary

function exception is present in this case.

C. Burden of Proof and Standards for Rule

12(b)(1) Motion

Although our review of the District Court’s legal

conclusions is plenary, Merando, 517 F.3d at 163-64, because

our analysis – especially under Gotha and Cestonaro – relies

heavily on the District Court’s factual findings, which we

review only for clear error, CNA, 535 F.3d at 139, we now

address S.R.P.’s arguments that, in reaching those findings,

the District Court improperly shifted the burden of proving

the applicability of the discretionary function exception and

30

failed to apply a relaxed standard that we have held is

required when assessing factual challenges to jurisdiction

under Rule 12(b)(1).

1.

S.R.P. argues that the District Court improperly

required him to prove that the discretionary function did not

apply, rather than requiring the Government to prove that it

did apply. See Merando, 517 F.3d at 164 (stating that the

Government bears the burden of proving the applicability of

the discretionary function exception). We disagree. The

District Court correctly explained that the burden was on the

Government, Perez, 2010 WL 3927628, at *4, and held the

Government to its burden. Cf. Gould Elecs., Inc. v. United

States, 220 F.3d 169, 179 n.8 (3d Cir. 2000) (explaining that

failure to identify the governing standard suggests that the

district court may not have applied that standard).

Pointing to the District Court’s statement that

“[p]laintiff has presented little evidence that the NPS had

identified barracuda[s] as posing a serious risk to shallow

water bathers[,]” Perez, 2010 WL 3927628, at *6, S.R.P.

contends that rather than requiring the Government to

establish each prong of the discretionary function exception,

the District Court assessed the sufficiency of his evidence and

improperly rejected his claim that the NPS was aware of a

specific risk of shoreline barracuda attacks. According to

S.R.P., the District Court should have first determined that the

Government was mandated to act in the face of a known

hazard and then required the Government to establish that it

did not know of the hazard. S.R.P.’s argument glosses over a

31

critical detail. Before proceeding to the two-prong

discretionary function analysis, the District Court was

required to identify the conduct at issue, and in conducting

this threshold inquiry, it properly looked at all of the evidence

in the case. The way in which the District Court proceeded

was entirely consistent with our approach in Merando. See

517 F.3d at 162-69. In that case, the plaintiff argued that the

Government had negligently pruned a tree, and then failed to

find and remove the hazardous tree, causing it to fall on his

wife and daughter, tragically killing them. Id. at 162. We

found that the plaintiff’s allegation was unsupportable

because he had “not shown that the Government was in any

way involved in the [pruning] of the tree.” Id. at 167. We

thus “eliminate[d]” the plaintiff’s claim that the Government

negligently pruned the tree and confined our analysis to the

plaintiff’s challenge to the Government’s alleged failure to

find and remove the tree. Id. at 168. Similarly, the District

Court here was required to distinguish between S.R.P.’s claim

that the NPS was aware of a specific danger and failed to

warn, and his claim that the NPS failed to identify the danger

and warn accordingly. As in Merando, this distinction was

relevant because the nature of the conduct at issue dictates the

policy considerations that are implicated.

S.R.P. maintains that because the burden of proof was

on the Government, he was entitled to all reasonable

inferences that could be drawn from the evidence. This

argument, however, conflates the placement of the burden of

proof with the standard of review. The fact that the burden of

proof is on the Government does not mean that a district court

is required to apply a summary judgment standard and draw

32

all inferences in favor of the plaintiff. Cf. Bouriez v.

Carnegie Mellon Univ., 585 F.3d 765, 770 (3d Cir. 2009)

(setting forth summary judgment standard under Federal Rule

of Civil Procedure 56). In fact, we have explicitly rejected

such an approach to evaluating factual challenges to

jurisdiction under Federal Rule of Civil Procedure 12(b)(1).

See Turicentro, 303 F.3d at 300 n.4. The district court is the

ultimate finder of fact on the jurisdictional question and is

thus entitled to draw inferences in favor of the defendant if it

determines that the evidence warrants such inferences. See

Merando, 517 F.3d at 167-68 (explaining that the evidence

did not allow us to draw the inference, favorable to the

plaintiff, that the NPS was involved in pruning the tree). As

we explained above, the evidence in this case did not warrant

a finding that the NPS had identified barracudas as posing a

danger to shoreline bathers.

2.

S.R.P. also argues that the District Court applied the

incorrect standard in evaluating the Government’s motion to

dismiss. Specifically, he contends that the District Court was

required, but failed, to apply a relaxed standard. We disagree;

the standard S.R.P. alleges was erroneously applied is not

applicable where, as here, the Government bears the burden

of proof.

When a district court considers a factual challenge to

subject matter jurisdiction, the court “accords the plaintiff’s

allegations no presumption of truth.” Turicentro, 303 F.3d at

300 n.4 (citations omitted). “[T]he plaintiff must either prove

the truth of the [necessary jurisdictional facts] or stand by

33

while the court evaluates those allegations in the same way a

jury would evaluate [those facts] as part of [the] plaintiff’s

case on the merits.” Mortensen, 549 F.2d at 891. “In a

factual attack, the court must weigh the evidence relating to

jurisdiction, with discretion to allow affidavits, documents,

and even limited evidentiary hearings.” Turicentro, 303 F.3d

at 300 n.4 (citations omitted).

As we have previously observed, in a factual attack

under the FTCA, “the split between jurisdiction and the

merits is not always clear.” CNA, 535 F.3d at 141. There

will frequently be overlapping issues of proof, causing the

jurisdictional challenge to be “intertwined with the merits.”

Id. at 143. This case presents precisely such a situation

because many of the same facts that are relevant to the

question of whether the discretionary function exception

applies are also relevant to the merits question of whether the

NPS was negligent in developing warning signs for Buck

Island. Recognizing that Rule 12(b)(1) does not provide

plaintiffs the procedural safeguards of Rule 12(b)(6), such as

assuming the truth of the plaintiff’s allegations, we have

articulated a relaxed standard of proof for the jurisdictional

34

question where jurisdiction is intertwined with the merits. 7

See Mortensen, 549 F.2d at 891. In such a case, a district

court may determine whether jurisdiction exists without

reaching the merits “so long as the court ‘demands less in the

way of jurisdictional proof than would be appropriate at a

trial stage.’” Gould Electronics, 220 F.3d at 178 (quoting

Mortensen, 549 F.2d at 891). “By requiring less of a factual

showing than would be required to succeed at trial, [we]

ensure that [district courts] do not prematurely grant Rule

12(b)(1) motions to dismiss claims in which jurisdiction is

intertwined with the merits and could be established, along

with the merits, given the benefit of discovery.” See CNA,

535 F.3d at 145.

7

We note that several of our sister circuits disagree

with our approach, and require district courts to treat Rule

12(b)(1) motions to dismiss where jurisdiction is intertwined

with the merits as challenges on the merits. See Lawrence v.

Dunbar, 919 F.2d 1525, 1530 (11th Cir. 1990) (explaining

that, in such a situation, a district court is constrained by the

limitations of summary judgment practice); Williamson v.

Tucker, 645 F.2d 404, 415 (5th Cir. 1981) (“Where the

defendant’s challenge to the court’s jurisdiction is also a

challenge to the existence of a federal cause of action, the

proper course of action for the district court . . . is to find that

jurisdiction exists and deal with the objection as a direct

attack on the merits of the plaintiff’s case.”). S.R.P.’s

reliance on these cases, however, is misplaced because we

take a different approach to cases where the jurisdictional

question is intertwined with the merits.

35

S.R.P. argues that in concluding that the Government

had not identified barracudas as posing a risk to shallow

water bathers, the District Court failed to apply this relaxed

standard. 8 We have never directly addressed the role of this

standard where, as here, the burden of proving the relevant

jurisdictional facts is on the defendant. However, there is

clearly a logical tension between the two rules. Because the

plaintiff does not have to prove any facts related to the

applicability of the discretionary function exception, there is

nothing, at least in terms of facts that the plaintiff is required

to prove, to which to apply a relaxed standard of proof. And

applying that standard to the defendant, and thus allowing the

defendant to defeat jurisdiction more easily, would be

inconsistent with the policy underlying our creation of the

relaxed standard in the first place. See CNA, 535 F.3d at 145.

Accordingly, because the Government bears the burden of

proving the discretionary function exception, the “less in the

way of jurisdictional proof” standard does not apply.

Although we have applied that standard to other cases

brought under the FTCA, those cases are distinguishable

because they involved threshold requirements under 28

U.S.C. § 1346(b)(1), for which the plaintiff bears the burden

8

It is worth noting that although we hold that the “less

in the way of jurisdictional proof” standard does not apply

here because the Government bears the burden of proof, the

District Court specifically identified the relaxed standard and

purported to apply it. Thus, assuming, arguendo, that the

relaxed standard did apply, S.R.P.’s position would be

difficult to sustain.

36

of proof. For example, in CNA v. United States, we applied

the relaxed standard to the question of whether a federal

employee was acting within the scope of his employment, as

required under § 1346(b)(1). 535 F.3d at 145-46. Similarly,

in Gould Electronics v. United States, we applied the relaxed

standard to the question of which state’s substantive law

controlled the underlying tort action. 9 220 F.3d at 178. Here,

in contrast to CNA and Gould, the Government bears the

burden of proving the necessary jurisdictional facts.

Accordingly, because the relaxed standard of proof did not

apply to the question before the District Court, S.R.P.’s

contention that the District Court failed to apply that standard

is inapposite.

9

In Gould Electronics v. United States, 220 F.3d 169,

178 (3d Cir. 2000), we stated that “we s[aw] no principled

reason to distinguish between a jurisdictional determination

based on the discretionary function exception and one based

on a conflict of laws analysis.” We do not see this language

as a barrier to our conclusion today. In Gould, we were

referring to the fact that there was no reason to treat a conflict

of law inquiry under the FTCA as non-jurisdictional where

other issues under the FTCA, including the applicability of

the discretionary function exception, are jurisdictional in

nature. Nowhere did we state that the “less in the way of

jurisdictional proof” standard applies to discretionary

function exception cases.

37

IV. Conclusion

For the foregoing reasons, we will affirm the order of

the District Court granting the Government’s motion to

dismiss for lack of subject matter jurisdiction.

38

SRP v. UNITED STATES

No. 10-4011

ROTH, Circuit Judge, Concurring:

I join the majority in affirming the District Court’s

dismissal of the claims in this case. I write separately,

however, because of my concern that the majority’s opinion

will eviscerate the discretionary function exception by

inserting an improper element into the analysis of whether

sovereign immunity has been waived under the FTCA. In my

view, (1) the NPS’s knowledge of the risk of barracuda

attacks and (2) our determination of whether the remedial

steps necessary to warn of that risk are “garden-variety” are

both irrelevant to the question of whether the discretionary

function exception protects the NPS from claims based on the

content, configuration, location or number of warning signs

displayed at Buck Island Reef National Monument. If the

discretionary function exception applies in a situation in

which consideration of public policy governs a choice of

action by a government agency, the “garden-variety” of the

remedy should not remove the shield of sovereign immunity.

I fear that the holding of the majority would do just that.

I agree with a great deal of what the majority has

stated. First, the discretionary function exception shields the

government only from those claims which challenge actions

that (1) “involve an element of judgment or choice” and that

(2) are “based on consideration of public policy.” United

States v. Gaubert, 499 U.S. 315, 322, 323 (1991). I also

agree that whether an action involves an element of judgment

or choice depends entirely on whether “a federal statute,

regulation, or policy specifically prescribes a course of action

. . ..” Berkovitz v. United States, 486 U.S. 531, 536 (1988). If

an action is specifically prescribed, there is no discretion as to

how to perform it. Finally, I agree that, if there is no precise

statutory, regulatory, or policy prescription for a course of

action, the determination whether an action is based on public

policy considerations focuses on the “nature of the action[]

taken” and whether it is “susceptible to policy analysis.

Gaubert, 499 U.S. at 315.

In this case, involving the National Park Service, an

examination of the applicable statutes, regulations and

policies reveals no specific prescription for how the NPS

should configure warning signs. To the contrary, NPS

policies direct that the NPS must exercise discretion in

deciding why, where, how and when to put up such signs.

The NPS Management Policies and the NPS Sign Manual

vest the NPS with the discretion to strike a balance between

economics, aesthetics and risk in determining the appropriate

response to hazards in the national parks. This discretion to

decide if and how risks will be warned of includes:

1. The consideration of what

measures will have the least

impact on park resources and

values. 2001 Management

Policies, ¶ 8.2.5.1.

2. The determination of whether

to install warning signs. Id.

2

3. The allocation to the individual

park manager of the decision that

a sign is necessary or appropriate

for any given location. Sign

Manual, ¶ 1-1.

4. The limitation of signs to the

minimum number, size and

wording required to service their

intended function. 2001

Management Policies, ¶ 9.3.1.1.

Clearly, as provided for in NPS policies, signage in the

National Parks is based on judgment and choice. The

selection and location of signage is, therefore, protected by

the discretionary function exception. As stated by the Ninth

Circuit Court of Appeals, “the [NPS] policy manuals’ broad

mandate to warn the public of and protect it from special

hazards involves the exercise of discretion in identifying such

hazards, in determining the precise manner in which to warn

it of those hazards.” Blackburn v. United States, 100 F.3d

1426, 1431 (9th Cir. 1996) (citations omitted).

In light of this discretion, the extent of the NPS’s

knowledge of a safety hazard is not relevant to the

consideration of whether the discretionary function exception

bars a suit challenging the NPS’s response to that hazard.

The NPS explicitly has the discretion to set up a system to

identify threats and to determine the proper warning, if any,

that should be given to the public of an identified threat. The

discretion to warn of a risk encompasses the discretion not to

warn. Indeed, the discretion to decide how to define risks

protects against the possibility of not uncovering a risk. For

3

instance, in Merando v. United States, 517 F.3d 160 (3d Cir.

2008), where we found the discretionary function exception

protected the NPS in the system it chose to determine what

trees in the park might pose a danger to visitors, we

concluded that it made “no legal distinction” whether the NPS

was actually aware of the particular hazardous tree which fell.

In either case, sovereign immunity was not waived. Id. at

174.

Furthermore, even if the NPS were to be negligent in

its evaluation of the risks that should be warned of, because

the decision to warn is an exercise of discretion, the

discretionary function exception applies whether or not the

discretion has been appropriately exercised. The sovereign

immunity waiver of the FTCA specifically states that the

exception applies “whether or not the discretion involved be

abused.” 28 U.S.C. § 2680(a) (emphasis added).

Under the majority’s theory of this case, however, if

the government has knowledge of a safety hazard, then its

response to that hazard is protected by the discretionary

function exception only if addressing the hazard does not

require “garden-variety action.” The majority concluded that

the decision whether and how to further warn of barracuda

attacks at Buck Island could potentially be based on a

weighing of “the potential benefits of additional warnings

against the costs of such warnings, including the risk of

numbing Buck Island visitors to all warnings. Such a

determination is directly related to the NPS’s mission of

preserving national parks while ensuring public safety and is

thus firmly grounded in the policy of the regulatory regime.”

Ante ___ [typescript at 16].

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The majority goes on, however, to limit this holding by

stating that “where the Government is aware of a specific risk

and responding to that risk would only require the

Government to take garden-variety remedial steps, the

discretionary function exception does not apply.” Ante ___.

[typescript at 19] (emphasis added).

It is this “garden-variety” language which has

prompted my concurrence. If the determination of the hazard

is protected by the discretionary function exception but the

risk of liability depends on whether the remedial steps to

correct or warn of this risk are “garden-variety,” or not,

haven’t we eviscerated the exception? Haven’t we protected

policy choices which require expensive, extensive, or

complicated remedies, but left the NPS open to liability if the

remedy is simple or inexpensive? Indeed, how do you

differentiate a “garden-variety” warning sign from a sign that

is not “garden-variety?”

This “garden-variety” language comes from our

opinions in Gotha v. United States, 115 F.3d 176 (3d Cir.

1997) and Cestonaro v. United States, 211 F.3d 749 (3d Cir.

2000). The majority claims that this “garden-variety”

analysis is necessary because of our holding in these two

cases. I do not interpret anything in either of those opinions

to establish such a qualification to the discretionary function

exception. Gotha involved the question of lightning and a

railing on a steep pathway in a U.S. Navy Base. We held that

the discretionary function exception did not apply because the

case was “not about a national security concern, but rather a

mundane, administrative, garden-variety, housekeeping

problem that [was] about as far removed from the policies

applicable to the Navy’s mission as . . . possible.” Gotha, 115

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F.3d at 181 (emphasis added). There was no showing of any

U.S. Navy policy directives concerned with this issue. Here,

on the contrary, we do have NPS policy directives on point.

In Cestonaro, we evaluated whether the discretionary

function exception barred claims challenging the NPS’s

response to safety risks in an area on the edge of an NPS park

that was unofficially used as a parking lot for other places of

business. Plaintiff and his decedent had parked there to go to

a restaurant, not to visit the park. We stated that “[t]he

National Park Service’s knowledge, or lack thereof, of the

dangers in the Hospital Street lot relate more directly to the

underlying negligence claims than to whether the challenged

actions . . . were protected by the discretionary function

exception.” 211 F.3d at 751 n.1. I can only presume that in

coming to this conclusion, we did not equate risks of crime in

an unofficial parking area with the discretion necessary for

the NPS to determine what hazards within the parks should

warned of, where the warning should be placed, and how the

warning should be stated – discretionary matters spelled out

in NPS policy.

Therefore, for the reasons stated above, I would hold

that the NPS’s knowledge of a safety hazard is irrelevant to

the issue of whether the discretionary function exception bars

claims challenging NPS’s response to that hazard. I would

also hold that whether the measure taken to warn of that

hazard can be described as a “garden-variety” measure is

irrelevant. In my view, the applicability of the discretionary

function exception is contingent only upon (1) whether a

federal statute, regulation, or policy prescribes a specific

response and (2) if not, whether the choice of the response is

affected by social, economic, or political considerations. The

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nature of the proposed remedy -- “garden-variety” or

otherwise – does not matter. Because I agree that no statute,

regulation, or policy explicitly requires the NPS to respond to

the risk of barracuda attacks in a specific way and that the

policies of the NPS require discretion in identifying and

warning of hazards, I would apply the discretionary function

exception here to bar waiver of sovereign immunity – without

the “garden-variety” condition imposed by the majority.

7