205 F.Supp.3d 120
D.D.C.2016Background
- Becky and Jim Wesberry sued the United States under the Federal Tort Claims Act after Becky fell exiting Ford’s Theatre in April 2014 and suffered serious injuries; Jim asserts loss of consortium.
- The fall occurred at one of five lobby exits leading to a sloped sidewalk; some exits had handrails and some did not; Plaintiffs allege lack of handrail and inadequate warnings caused the fall.
- Ford’s Theatre is managed by the National Park Service (NPS) as a historic site; NPS policy emphasizes preserving historic/aesthetic character and vests safety-related decisions in park superintendents.
- The United States moved to dismiss under Rule 12(b)(1), arguing sovereign immunity via the FTCA’s discretionary function exception; it also argued failure to state a claim under Rule 12(b)(6).
- The court found NPS decisions about signage, handrails, and other safety features implicate aesthetic and preservation policy (Gaubert prong two) but left open whether any binding mandatory directive removed discretion (Gaubert prong one).
- The court denied the motion without prejudice and granted narrowly tailored jurisdictional discovery limited to whether a mandatory directive governed the NPS actions and whether it was followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA discretionary-function exception bars suit | Discretionary exception doesn’t apply because there may have been binding policies (e.g., presence of some railings suggests a rule) and failure to warn is not inherently policy-driven | Decisions on handrails, signage, lighting are discretionary and grounded in aesthetic/preservation policy, so sovereign immunity bars claim | Court: Type of decision implicates policy (exception satisfied as to prong two), but unresolved whether a specific mandatory directive controlled conduct (prong one); permit limited jurisdictional discovery |
| Whether a specific mandatory statute/regulation/policy removed discretion (Gaubert prong one) | Plaintiffs: reasonable inference of mandatory policy (railings on some exits) and possible application of safety standards; request discovery to find mandatory directives | Gov’t: no statute, regulation, or policy mandates particular safety measures at Ford’s Theatre; authority vests discretion in superintendents | Court: Plaintiffs have not yet shown a specific directive; discovery permitted solely to determine if a mandatory directive existed and was followed |
| Whether discovery on decision reasons is permitted | Plaintiffs seek broader discovery on reasons railings/signs were or were not installed | Gov’t opposes broad discovery as unnecessary to jurisdiction and burdensome | Court: Denies discovery into decisionmakers’ subjective reasons or merits; permits narrowly cabined jurisdictional discovery only on existence/compliance with mandatory directives |
| Whether dismissal should be with prejudice | Plaintiffs argue discovery could show mandatory policy; dismissal now would be premature | Gov’t seeks dismissal for lack of jurisdiction | Held: Dismissal denied without prejudice; gov’t may renew after jurisdictional discovery |
Key Cases Cited
- United States v. Gaubert, 499 U.S. 315 (establishing two-prong test for discretionary-function exception)
- Berkovitz v. United States, 486 U.S. 531 (discussing when a statutory/regulatory directive removes discretion)
- United States v. Varig Airlines, 467 U.S. 797 (purpose of discretionary-function exception: avoid judicial second-guessing of policy decisions)
- Cope v. Scott, 45 F.3d 445 (D.C. Cir.) (distinguishing roadway management vs. warning-sign decisions under the discretionary-function exception)
- Loughlin v. United States, 393 F.3d 155 (D.C. Cir.) (permitting discovery on discretionary-function issues; discovery not confined to prong one)
- Merry v. National Park Service, 985 F. Supp. 2d 90 (D.D.C.) (NPS aesthetic-preservation policies can support discretionary-function protection)
- Kiehn v. United States, 984 F.2d 1100 (10th Cir.) (aesthetic/preservation concerns can support the discretionary-function exception)
- Boyd v. United States, 881 F.2d 895 (10th Cir.) (distinguishing failure-to-warn where warning decision is separate from discretionary decision to allow activity)