Phillip Alberty v. United States, 54 F.4th 571

In 2018 Phillip Alberty, a visually impaired man in his sixties, fell from the east exit of the Neal Smith Federal Building (Des Moines) and suffered broken leg and elbow requiring surgeries and therapy.
The exit has four concrete bollards at the top of stairs and two flat areas (“south walk” and “north walk”) that drop 26 inches to the sidewalk; Alberty walked around the bollards on the south walk and fell.
Alberty sued the United States under the Federal Tort Claims Act (FTCA), alleging negligent design/maintenance and failure to provide barriers, railings, warnings, or accessibility cues in violation of GSA accessibility commitments and the International Building Code (IBC) via 40 U.S.C. § 3312.
The Government moved to dismiss for lack of subject-matter jurisdiction under the FTCA’s discretionary-function exception, 28 U.S.C. § 2680(a); the district court granted the motion.
The Eighth Circuit affirmed, holding the GSA’s design and warning decisions were discretionary and susceptible to policy analysis, so the discretionary-function exception barred Alberty’s claim; the dismissal is without prejudice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the discretionary-function exception bars Alberty’s FTCA claim	The GSA’s decisions were non-discretionary because GSA’s accessibility commitments and the IBC/§3312 mandated safer design and warnings	Design and warning decisions involved judgment and policy choices and thus are discretionary	The exception applies; claim barred for lack of jurisdiction
Whether GSA website commitments and §3312/IBC remove agency discretion	GSA’s public commitment and §3312 (via IBC) create mandatory duties to make facilities accessible and meet stair standards	The website language is aspirational; §3312 requires compliance only “to the maximum extent feasible as determined by the Administrator,” leaving discretion	GSA commitments lack mandatory specificity and §3312 preserves substantial agency discretion; plaintiff failed to show a mandatory constraint
Whether the GSA’s design and non-warning choices are "susceptible to policy analysis"	Alberty: absence of a warning was an isolated hazard, not a policy-driven choice	Government: walkway design and warnings implicate safety, cost, aesthetics, community input—classic policy considerations	Court held decisions were susceptible to policy analysis; discretionary-function exception applies

United States v. Gaubert, 499 U.S. 319 (establishes discretionary-function exception framework for policy-based agency decisions)
Buckler v. United States, 919 F.3d 1038 (8th Cir. 2019) (two-step test and presumption that discretion involves policy)
Metter v. United States, 785 F.3d 1227 (8th Cir. 2015) (de novo review of jurisdiction; design/warning choices susceptible to policy analysis)
Herden v. United States, 726 F.3d 1042 (8th Cir. 2013) (discretionary-function exception is jurisdictional bar)
C.R.S. v. United States, 11 F.3d 791 (8th Cir. 1993) (regulation must be mandatory and specific to remove discretion)
Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995) (flexibility in implementing design standards as essence of discretion)
Fothergill v. United States, 566 F.3d 248 (1st Cir. 2009) (placement of barriers/warnings susceptible to policy balancing)
Demery v. U.S. Dep’t of Interior, 357 F.3d 830 (8th Cir. 2004) (warning decisions involve policy considerations)
Andrulonis v. United States, 952 F.2d 652 (2d Cir. 1991) (distinct fact pattern regarding an isolated failure to warn)
Layton v. United States, 984 F.2d 1496 (8th Cir. 1993) (contrasting isolated warnings with broader policy-driven safety decisions)