87 F.4th 897
8th Cir.2023Background
- Autumn Hilger slipped on a temporary access mat installed by the National Park Service at Mount Rushmore during walkway renovations and broke her wrist.
- Hilger submitted an FTCA administrative claim for $2 million; the Government denied the claim and she sued for negligent installation, maintenance, and failure to warn.
- The district court dismissed the suit for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1), finding the discretionary-function exception to the FTCA applied.
- Hilger conceded there was no statute or regulation mandating how the mat was installed or maintained; the Government argued the decisions were discretionary and involved policy tradeoffs (safety, aesthetics, access, cost).
- The court of appeals affirmed, holding the challenged conduct was discretionary and that Hilger failed to rebut the presumption that the decisions were grounded in policy considerations; other procedural and policy arguments (Bell v. Hood, discovery about closing the Memorial) were rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discretionary-function exception to the FTCA bars Hilger's negligence claims | Hilger: decisions were about maintaining a safe temporary walkway (not policy-driven), so exception shouldn't apply | Government: installation/maintenance/warnings were discretionary and susceptible to policy analysis balancing safety, aesthetics, access, and cost | Exception applies; conduct discretionary and plaintiff failed to rebut presumption that decisions were policy-based |
| Whether dismissal under Rule 12(b)(1) was improper (including reliance on Bell v. Hood) | Hilger: Bell and pleading rules prevent dismissal on jurisdictional grounds where claims are plausibly pleaded | Government: FTCA sovereign-immunity waiver is limited; discretionary-function exception removes jurisdiction despite pleading; Bell is inapposite | Dismissal under 12(b)(1) was proper; Bell does not override the FTCA jurisdictional framework |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (1991) (establishes two-step test for discretionary-function exception)
- Herden v. United States, 726 F.3d 1042 (8th Cir. 2013) (discusses first-step requirement that conduct not be controlled by mandatory rules)
- Buckler v. United States, 919 F.3d 1038 (8th Cir. 2019) (explains discretionary-function exception as an exception to FTCA waiver)
- Two Eagle v. United States, 57 F.4th 616 (8th Cir. 2023) (standards for Rule 12(b)(1) factual attacks and jurisdictional factfinding)
- Alberty v. United States, 54 F.4th 571 (8th Cir. 2022) (applies discretionary-function exception where warnings decision balanced safety, cost, and aesthetics)
- Metter v. United States, 785 F.3d 1227 (8th Cir. 2015) (applies exception to removal of guardrails where decision balanced safety against timing and cost)
- Chantal v. United States, 104 F.3d 207 (8th Cir. 1997) (applies exception where safety and aesthetics were weighed in design decisions)
- Bell v. Hood, 327 U.S. 678 (1946) (pleading-era precedent; court held it does not supersede FTCA jurisdictional limits)