Richard Lee SMITH, Individually and as Personal Representative of the Estate of Richard Hadaway Smith, Deceased; Nancy G. Smith, Individually and as Personal Representative of the Estate of Richard Hadaway Smith, Deceased, Plaintiffs-Appellees, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant-Appellant.
No. 01-1345.
United States Court of Appeals, Fourth Circuit.
Decided May 10, 2002.
Argued Nov. 2, 2001.
Judicial restraint and wisdom urge that we address the issue raised on appeal and remand this case to the district court to consider and decide any other matter that the parties may raise. Any other course unnecessarily threatens our judicial system‘s concept of dual sovereignty.
Because I would reverse the district court‘s judgment on jurisdictional grounds and remand, I respectfully dissent.
ARGUED: David R. Keyser, Assistant General, Washington Metropolitan Area Transit Authority, Washington, DC, for Appellant. Jack Arthur Gold, Karp, Frosh, Lapidus, Wigodsky & Norwind, P.A., Washington, DC, for Appellees. ON BRIEF: Cheryl C. Burke, General, Robert J. Kniaz, Deputy General, Gerard J. Stief, Associate General, Washington Metropolitan Area Transit Authority, Washington, DC, for Appellant. Lawrence S. Lapidus, Karp, Frosh, Lapidus, Wigodsky & Norwind, P.A., Washington, DC, for Appellees.
Before MICHAEL, KING, and GREGORY, Circuit Judges.
OPINION
KING, Circuit Judge.
In July 1999, the parents of Richard Hadaway Smith, individually and as representatives of his estate, initiated this proceeding against the Washington Metropolitan Area Transit Authority (the “METRO“) in the District of Maryland, seeking damages for the death of their son. In response, the METRO asserted governmental immunity and, upon the court‘s partial denial of its immunity claim, noticed an interlocutory appeal. Because the METRO is entitled to a broader grant of immunity than that accorded it by the district court, we vacate and remand.
I.
A.
On the afternoon of July 20, 1998, at the METRO‘s Bethesda station in Maryland, Smith climbed an escalator which was being utilized as a stairway, i.e., a “stationary walker.”1 At the top of the escalator, Smith suffered a fatal heart attack. The METRO had decided to utilize the escalator as a stationary walker on that occasion because the two other escalators at its Bethesda station were inoperative.
Public access to the Bethesda station is normally provided by three escalators and an elevator. By design, each of the three escalators is capable of being operated either up or down, and the direction of each
As a result of the inoperative status of Escalators Two and Three, the METRO made the decision to utilize its sole operating escalator (“Escalator One“) as a stationary walker, thus enabling its patrons to both enter and exit the Bethesda station by a means other than the single elevator. Smith‘s fatal heart attack occurred at approximately 3:15 p.m. on July 20, 1998.2
B.
This proceeding was initially filed in the district court on July 22, 1999, alleging that, due to its negligence, the METRO is liable for Smith‘s death. An amended complaint, filed August 15, 2000, consisted of two counts, each premised on the same allegation of negligence: one for wrongful death, made on behalf of Smith‘s parents, plus a second count under the Maryland survival statute, asserted on behalf of Smith‘s estate.3
In response to this allegation, the METRO sought summary judgment on the basis of multiple contentions, including the immunity claim now on appeal. The development of the case in district court revealed that Smith‘s negligence allegation concerning the Bethesda station embodied five theories, as follows:
- The METRO had negligently braked Escalator One for use as a stationary walker;
- The METRO had negligently left Escalator Three disassembled pending repair;
- The METRO had negligently failed to warn its Bethesda patrons of the conditions on July 20, 1998;
- The METRO‘s signage and illumination (the alleged “design defects“) failed to comply with the requirements of the ANSI Code;4
- The METRO had negligently failed to repair and maintain Escalators Two and Three.
Upon its consideration of the METRO‘s summary judgment request, and the assertions and related submissions of the par-
C.
It is settled that the denial of an immunity claim by a district court constitutes an appealable interlocutory decision. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); KISKA Constr. Corp.-U.S.A. v. WMATA, 167 F.3d 608, 610–11 (D.C.Cir.1999). In this case, the court partially rejected the METRO‘s immunity claim, and “[w]hen the ‘defendant raises and the district court rejects immunity as a defense, the defendant enjoys the right of immediate appeal.‘” KISKA, 167 F.3d at 610 (quoting Rendall-Speranza v. Nassim, 107 F.3d 913, 916 (D.C.Cir.1997)).
To the extent the METRO‘s complained-of actions fall within its cloak of immunity, we lack subject matter jurisdiction over such claims. See, e.g., Medina v. United States, 259 F.3d 220, 223 (4th Cir. 2001). In 1995, we observed that an assertion of governmental immunity is properly addressed under the provisions of
In this instance, the district court partially denied the METRO‘s immunity claim, thereby deciding that it possessed subject matter jurisdiction over Smith‘s causes of action. On interlocutory review of such an immunity denial, we do not decide whether a plaintiff can prove his claim at trial. Rather, we must examine whether any material jurisdictional fact is in dispute, and if not, whether the governmental entity “is entitled to prevail as a matter of law” due to our lack of jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 769 (4th Cir.1991).
II.
A.
In order to properly assess the METRO‘s claim of immunity, it is necessary to first understand certain legal principles governing the METRO‘s operations. First of all, the METRO Compact (the
As a general proposition, multistate entities such as the METRO are not accorded governmental immunity absent some “good reason to believe” that immunity was intended to be conferred upon them. Morris, 781 F.2d at 224 (quoting Lake Country Estates v. Tahoe Reg‘l Planning Agency, 440 U.S. 391, 401 (1979)). The Compact, however, evinces the clear intent of its signatories to effect such a conferral. Morris, 781 F.2d at 220. Pursuant to its Section 80, the METRO has waived immunity in certain circumstances, i.e., when it is engaged in proprietary functions, while specifically preserving its immunity for “torts occurring in the performance of a governmental function.”6
B.
As a threshold question, we must examine the legal framework to be utilized in assessing the immunity issue. While we have previously applied the traditional “governmental/proprietary” distinction to the METRO, we have also recognized the difficulty in determining when a particular function is a proprietary one.7 Martin v. WMATA, 667 F.2d 435, 436 (4th Cir.1981). In analyzing this distinction, the Court of Appeals for the District of Columbia has utilized the “discretionary/ministerial” dichotomy employed by the Federal Tort Claims Act (“FTCA“).8 See, e.g., Sanders v. WMATA, 819 F.2d 1151, 1155 (D.C.Cir.1987).
Although these two tests—“governmental/proprietary” and “discretionary/ministerial“—are not coterminous, the discretionary acts of public officials are recognized as being within a “subset
The Supreme Court long ago characterized the FTCA as distinguishing between “acts of a governmental nature or function,” which remain immune, and ministerial functions resulting in “ordinary common-law torts,” as to which the FTCA has waived governmental immunity. Dalehite v. United States, 346 U.S. 15, 28 (1953). Thirteen years after the Supreme Court‘s decision in Dalehite enunciated the distinction between discretionary and ministerial functions, the Compact came into existence. The Compact “accepted the Dalehite conception” and, as the FTCA does for the federal government, provided that the METRO is not liable for torts occurring in the performance of a governmental function. Sanders, 819 F.2d at 1155. Because of the FTCA‘s similarity to Section 80 in provisions and purpose, we agree with the Court of Appeals for the District of Columbia that it is appropriate for us to analogize the immunity aspects of the Compact9 to the principles developed under the FTCA. Applying this rationale, we will analyze the METRO‘s immunity claim in this case on the basis of the FTCA‘s legal principles.
C.
Our sister circuit in the seat of Government, which often addresses issues on the METRO Compact, has developed two alternate tests to assist in the identification of “governmental” functions under the Compact. Burkhart v. WMATA, 112 F.3d 1207, 1216 (D.C.Cir.1997). First, that court has recognized that if the METRO is engaged in a quintessential governmental function, its activities fall within the scope of its immunity. Id. If the METRO is not engaged in such a governmental function, however, a court must proceed to the second inquiry, and it must determine whether the challenged activity is discretionary or ministerial, the dichotomy employed by the FTCA. Id.
If the challenged activity is discretionary in nature, it falls within what has long been called the “discretionary function exception.”10 Coates v. United States, 181 F.2d 816, 817 (8th Cir.1950). Under the discretionary function exception, the METRO is immune from any claim, “however negligently caused, that affect[s] the governmental functions.”11 Dalehite, 346
Most significantly in the context of this case, the Supreme Court, in 1991, made clear in United States v. Gaubert that discretionary acts deserving of immunity are not limited to policymaking or planning decisions; day-to-day management can also involve discretionary choices grounded in regulatory policy. 499 U.S. 315, 325 (1991). It is now settled that the day-to-day operational decisions of government are entitled to immunity under the FTCA so long as the choices are “susceptible to policy analysis.” Id. at 325.
In order to determine whether an act or omission is a discretionary one—and therefore immune—we first assess whether an official or employee exercised “due care in carrying out statutes or regulations whether valid or not.” Dalehite, 346 U.S. at 33. As the Supreme Court has framed it, “conduct cannot be discretionary unless it involves an element of judgment or choice.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). And the analysis does not end there, for even if “the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield,” that is, decisions “grounded in social, economic, and political policy.” Id. at 537; Dalehite, 346 U.S. at 36 (“Where there is room for policy judgment and decision there is discretion.“).
When a public employee makes a discretionary judgment in performing governmental duties, that judgment is entitled to immunity from liability “whether or not the discretion involved be abused.” Dalehite, 346 U.S. at 33; see also Souders v. WMATA, 48 F.3d 546, 550 (D.C.Cir.1995) (“[T]he hard fact remains that insulating policy determinations, good and bad, is the raison d‘etre of the discretionary function exception.“). As a reviewing court, we are not to inquire whether policy considerations were actually contemplated in making a decision. On the contrary, “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 inherently to be grounded in considerations of policy.” Baum v. United States, 986 F.2d 716, 720-21 (4th Cir.1993). If a governmental decision is susceptible to policy analysis and if, as Justice White stated, it is “grounded in the social, economic, or political goals of the statute and regulations,” that decision is entitled to immunity protection. Gaubert, 499 U.S. at 323.
III.
Given this framework, we turn to the theories of negligence asserted against the METRO by Smith. See supra at 204. Because there are no issues of material fact bearing on the immunity claim of the METRO in this case, we will apply the legal principles enunciated above, particularly the Court‘s explication of the discretionary function exception in United States v. Gaubert, and assess whether, and to what extent, the METRO‘s immunity claim must be recognized.
A.
Faced with what plainly constituted an emergency situation at the Bethesda station on July 20, 1998, the METRO determined that it should shut down Esca-
There were potential economic and political costs to the METRO in choosing between such unattractive resolutions of its problem. For instance, its decision, however made, might well have resulted in public outrage, adverse media coverage, or political fallout. A decision to permit entering and exiting METRO passengers to choose between walking on a stationary escalator or riding an elevator, rather than compelling the passengers moving in one direction to use the elevator, is plainly a decision “susceptible to policy judgment,” and it involves the “exercise of ‘political, social, or economic judgment.‘” Cope v. Scott, 45 F.3d 445, 448 (D.C.Cir.1995) (quoting Gaubert, 499 U.S. at 325); Baum v. United States, 986 F.2d 716, 721 (4th Cir.1993) (noting that discretionary decision is “one which we would expect inherently to be grounded in considerations of policy,” and is subject to “well-established presumption that public officials have properly discharged their official duties“). Indeed, the choices presented with respect to operations at the Bethesda station on July 20, 1998, implicated the METRO‘s mission—public transportation—and its ability to fulfill that mission in a safe and efficient manner. In sum, the choices confronting the METRO at Bethesda on July 20 involved, as the Court of Appeals for the District of Columbia astutely put it, “not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency.” Cope, 45 F.3d at 450 (quoting Sami v. United States, 617 F.2d 755, 766 (D.C.Cir.1979)).
The METRO officials at the Bethesda station on July 20, 1998, acted precisely as they were bound to act. They responded to the situation in a manner that implicated both their mission and public policy, and they decided to shut down Escalator One and use it as a stationary walker. This governmental decision was plainly of the discretionary variety, and it is entitled to be accorded immunity protection.
B.
The METRO‘s decision not to reassemble Escalator Three for use during rush hour on July 20, 1998, is also a governmental decision shielded by the discretionary function exception. That decision is “susceptible to policy analysis,” Gaubert,
C.
In the face of the situation at the Bethesda station on July 20, 1998, the METRO is also immune for its alleged failure to properly warn its Bethesda patrons of the inoperative status of Escalators Two and Three. Rosebush v. United States, 119 F.3d 438, 443 (6th Cir.1997) (“Decisions concerning the proper response to hazards are protected from tort liability by the discretionary function exception.“); see also Williams v. United States, 50 F.3d 299, 310 (4th Cir.1995). In this connection, we assess only the METRO‘s asserted failure to warn Smith of the emergency situation on July 20, i.e., its failure to post temporary signs or personnel at the Bethesda station advising its patrons of the inoperative escalators and the location of the elevator.
As with its decisions on the utilization of Escalator One as a stationary walker and to delay reassembly of Escalator Three pending the arrival of replacement parts, no specific statute or regulation mandated any certain course of action by the METRO. Importantly, any hazardous condition present on that occasion was obvious, and where “the danger is not hidden, there is no duty to warn.” Rich v. United States, 119 F.3d 447, 452 (6th Cir.1997). For example, the long line of patrons waiting to use the elevator at the Bethesda station indicated both where it was located and that it was functional. And even after Smith‘s arrival at the Bethesda station, when he became aware of any existing hazard, he had other available options. He could have waited for the elevator, or he could have decided to board another METRO train and depart the station. The METRO is entitled to be accorded immunity from a negligence claim in this situation, because, as the Sixth Circuit has held, “[a]ny duty to warn of this open and obvious hazard is discretionary and exempt from an action in tort.” Id.
D.
In its Opinion, the district court ruled in favor of the METRO on Smith‘s fourth theory of negligence, i.e., the failure of its signage and illumination to comply with the requirements of the ANSI Code. See supra at 204. The court concluded that the METRO is immune from any theory of negligence based on the assertion that its permanent signage and illumination failed to comply with the law, because the METRO is immune from challenges to the design of its stations.14 133 F.Supp.2d at 406
E.
Finally, Smith contends that the METRO negligently failed to repair and maintain Escalators Two and Three at the Bethesda station, and that such failure proximately caused his death. In addressing this contention, we first observe that the issue of whether this negligence theory is properly on appeal is somewhat problematic. In its Opinion, the district court broadly observed that there was a lack of proximate cause between the “statutory violations” and Smith‘s heart attack. Specifically, it determined that “[p]laintiffs have not sustained their burden to show that the injury suffered by their son was of the kind contemplated by the legislature in adopting the [ANSI] Code. Therefore, as a matter of law, Plaintiffs have not shown the alleged statutory violations proximately caused their son‘s death.” 133 F.Supp.2d at 404. This conclusion indicates that the court contemplated awarding summary judgment to the METRO, on the basis of lack of proximate cause, with respect to alleged violations of the ANSI Code.15 If such was the case, then there would be nothing for us to address on interlocutory appeal of this negligence theory, because the METRO would have already prevailed on the merits. However, the court also observed that “the heart of Plaintiff‘s complaint is the failure to repair and maintain the primary means of ingress and egress from the station‘s premises,” and that “this conduct does not fall within the scope of [METRO‘s] immunity.” 133 F.Supp.2d at 407. In the context of these conflicting statements, the breadth of the court‘s assessment of proximate cause is sufficiently vague to warrant that its scope should be defined by the district court.
For the purposes of the METRO‘s interlocutory appeal, however, we possess jurisdiction only with respect to its claim of immunity. To the extent that the METRO‘s repair and maintenance of Escalators Two and Three contravened applicable requirements of the ANSI Code, such repair and maintenance would not involve “an element of judgment or choice,” and it would therefore fall outside the discretionary function exception.16 Berkovitz, 486 U.S. at 536. In such a circumstance, the METRO would not be entitled to immunity on this theory of negligence.
On remand, the district court should first accord the METRO the immunity to which it is entitled. Then, if necessary, it can decide whether Smith can make a prima facie showing of negligent repair and maintenance, and it can also assess whether there is a sufficient proximate cause nexus between such a showing and Smith‘s death. The district court should then determine whether anything is left of this case.
In summary, we conclude that the METRO is entitled to be accorded immunity under the discretionary function exception for its decisions at the Bethesda station on July 20, 1998: (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. We therefore vacate the partial denial of the METRO‘s claim of immunity, and we remand for any further proceedings that may be appropriate.
VACATED AND REMANDED.
MICHAEL, Circuit Judge, concurring in part and dissenting in part:
The majority follows the D.C. Circuit by holding that the immunity for “governmental functions” conferred by section 80 of the METRO Compact is at least as broad as that conferred by the discretionary function exception,
The majority suggests that under Gaubert any decision that can be characterized as an effort to cut costs is “the kind of policy judgment that the discretionary function exception was designed to shield.” Id. at 332. Remarkably, this extremely broad reading of the discretionary function exception appears to be consistent with our prior cases. Although there is something commendable in the majority‘s refusal to flinch from Gaubert‘s implications, the majority‘s analysis makes it disturbingly clear that the discretionary function exception has in fact swallowed up the FTCA‘s ostensibly broad waiver of sovereign immunity. This means that the majority‘s initial decision to follow the D.C. Circuit comes at a heavy price: the price of maintaining consistency between our circuit and the D.C. Circuit is nothing less than evisceration of the waiver of sovereign immunity in section 80 of the METRO Compact. Because I think that price is too high, I dissent from the majority‘s decision in parts II B and C of its opinion to analyze the METRO‘s immunity by using Gaubert‘s susceptible-to-policy-analysis standard. I would adopt a narrower view of the immunity conferred by section 80 of the METRO Compact by reading the governmental function exception along the lines suggested by Justice Scalia in his concurring opinion in Gaubert. Under that standard the METRO (as the district court concluded) has not established its immunity on any of the theories of negligence that survived the district court‘s summary judgment ruling. It follows that I also dissent from parts III A, B, and C of the majority opinion. I concur in the remainder of the opinion.
I.
Section 80 of the METRO Compact provides that the METRO “shall be liable for its contracts and for its torts and those of its directors, officers, employees and agents committed in the conduct of any proprietary function ... but shall not be liable for any torts occurring in the performance of a governmental function.” As the majority explains, ante at 207, the D.C. Circuit has read section 80 to confer immunity on the METRO for all its “quintessential governmental function[s],” such as police activity. Burkhart, 112 F.3d at 1216. Where, as here, the allegedly tortious conduct did not occur in the METRO‘s performance of a quintessentially governmental function, the D.C. Circuit looks to the case law interpreting the discretionary function exception in the Federal Tort Claims Act (FTCA) to decide whether the conduct occurred in the performance of a governmental function or a proprietary function. Id. Following the D.C. Circuit, the majority today holds that “all ‘discretionary’ activities of a governmental entity under the FTCA constitute ‘governmental’ activities within the meaning of the ‘governmental/proprietary’ test.” Ante at 206. To understand the consequences of this decision, it will be necessary to review briefly the Supreme Court‘s recent decisions interpreting the discretionary function exception.
The Supreme Court‘s decision in Berkovitz v. United States, 486 U.S. 531 (1988), created a two-pronged test for applying the discretionary function exception. First, courts ask whether the governmental action complained of “involves an element of judgment or choice.” Id. at 536. When a statute, regulation, or policy prescribes a specific course of action, the negligent failure to follow that course is not protected by the discretionary function exception. Id. Second, if the challenged conduct is discretionary, courts then ask whether the judgment involved is “of the kind that the discretionary function exception was designed to shield.” Id. The exception protects only decisions “grounded in social, economic, [or] political policy.” Id. at 537.
Because most government decisions involve at least some degree of choice, courts applying the Berkovitz test have frequently had to decide whether a government decision was sufficiently policy based to deserve the protection of the discretionary function exception. Prior to the Court‘s 1991 decision in Gaubert, the case law interpreting the discretionary function exception suggested several possible limits on the range of government conduct that could be seen as grounded in social, economic, or political policy. See, e.g., Gaubert v. United States, 885 F.2d 1284, 1289 (5th Cir.1989) (suggesting that decisions made at the operational rather than the planning level do not qualify as policy based under the second prong of Berkovitz), rev‘d sub nom. United States v. Gaubert, 499 U.S. 315 (1991); Dube v. Pittsburgh Corning, 870 F.2d 790, 797-800 (1st Cir. 1989) (holding that the discretionary function exception does not apply when the
Gaubert‘s susceptible-to-policy analysis standard has significantly broadened the scope of the discretionary function exception. See Bruce A. Peterson and Mark E. Van Der Weide, Susceptible to Faulty Analysis: United States v. Gaubert and the Resurrection of Federal Sovereign Immunity, 72 Notre Dame L.Rev. 447, 465-73 (1997) (surveying the post-Gaubert case law and concluding that the government wins more cases, and wins them at earlier stages of litigation, after Gaubert than before). Because the Gaubert standard asks only whether allegedly negligent government conduct could have been based on policy judgments, courts have had difficulty in placing any principled limits on the range of conduct that counts as grounded in social, economic, or political policy.2
Today, the majority squarely aligns this circuit with those courts that have been willing to treat decisions that could have been motivated by a desire to reduce costs as grounded in economic policy under Gaubert and Berkovitz. In part III B of its opinion, the majority holds that the discretionary function exception protects the METRO‘s decision not to reassemble Escalator Three for use as a walker. According to the majority, this decision involved the kind of discretion the discretionary function exception was meant to shield because it “implicated the economic policy 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.” Ante at 210. This, to me, is a remarkable result. As any first-year law student knows, the basic approach to negligence law outlined by Judge Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir.1947), essentially defines negligence as the unreasonable balancing of the cost of safety measures against the risk of accidents. See id. at 173 (explaining that “if the probability [of an accident] be called P; the injury, L; and the burden [of adequate precautions], B; liability depends upon whether B is less than L multiplied by P: i.e., whether B<PL“). Even on the most charitable interpretation of the facts, this is exactly the sort of balancing that was going on when the METRO decided not to reassemble the steps on Escalator Three. The decision that the risks of not reassembling Escalator Three were outweighed by the cost of reassembly involved “the same kind of balancing which citizens do at their peril,” Dalehite v. United States, 346 U.S. 15, 60 (1953) (Jackson, J., dissenting), and which courts review every day using ordinary tort law standards, cf. Blessing, 447 F.Supp. at 1183 n. 30 (ex-
The majority‘s holding in part III B is all the more striking because, consistent with Gaubert, the majority pays no attention to the actual processes that led to the decision not to reassemble Escalator Three. The summary judgment record contains no evidence that anyone consciously weighed the costs in time and labor of reassembling Escalator Three versus the benefits in increased passenger safety and convenience. The record does not indicate who made the decision. Indeed, the record does not even indicate who had the authority to make the decision. Viewing the evidence in the light most favorable to Smith‘s family and estate, a reasonable jury could conclude that the decision not to reassemble Escalator Three was made by the escalator repair crew without any significant consultation with supervisory officials and that the repair crew neither sought to balance competing policy considerations nor had the authority to do so. Cf. Domme, 61 F.3d at 795 (Henry, J., concurring) (“[A] nonmanagerial employee who, away from the quiet and measured reflection of a budget meeting, decides to compromise safety in order to save government resources may simply be trying to make his or her job easier rather than trying to serve the common good.“). If the decision not to reassemble Escalator Three counts as a judgment grounded in the economic policy of the METRO, the discretionary function exception truly has swallowed up the FTCA‘s waiver of immunity because there are precious few governmental decisions that cannot be seen as an effort to save costs. See Cope, 45 F.3d at 449 (noting that after government counsel had argued that any decision implicating budgetary concerns should fall within the discretionary function exception, counsel failed during oral argument to provide “even one example of a discretionary decision that would not be exempt for failure to implicate policy concerns” aside from the standard example that the discretionary function exception does not cover the negligent operation of motor vehicles by government employees).3 Consequently, the upshot of the majority‘s approach to the discretionary function exception is that the government will nearly always be immune for its actions so long as it has not enacted regulations that completely eliminate the discretion of its employees.
All that said, I cannot say that the majority‘s analysis in part III B is an unreasonable, or even an incorrect, application of Gaubert‘s susceptible-to-policy-analysis standard. Although some courts have ex-
As the majority‘s analysis illustrates, the Gaubert approach tends to push courts toward holding that judgments involving tradeoffs between cost and safety are grounded in economic policy for purposes of the discretionary function exception. Although such holdings threaten to eviscerate the FTCA, the alternative of claiming that decisions based on budget constraints and the like are never policy based is equally unpalatable. The more reasonable view is that sometimes government decisions requiring tradeoffs between cost and safety deserve the protection of the discretionary function exception, and sometimes they do not. For example, if an agency makes judgments about the cost-effectiveness of various safety measures and expresses those judgments in the form of a regulation, the discretionary function exception does (and should) protect the regulation (and any conduct it requires) from judicial second-guessing. As Justice Scalia points out, the FTCA‘s exclusion of liability for all acts of government employees performed with due care “in the execution of a ... regulation, whether or not such ... regulation be
II.
As I explained in part I, the majority‘s disposition of this case is correct if Gaubert provides the proper standard for interpreting section 80 of the METRO Compact. Before proceeding any further, however, it is worth pointing out that the majority‘s disposition is correct only if Gaubert is the proper standard; any other approach to reading section 80 would require a different result. If, for example, we read section 80 literally and applied the distinction between governmental and proprietary activities, operating escalators as part of a public transportation system would surely be classified as proprietary and would therefore be unprotected by the METRO‘s immunity. See Wainwright v. WMATA, 958 F.Supp. 6, 9 (D.D.C.1997) (stating that the METRO‘s operation of an escalator is a proprietary function); Warren v. WMATA, 880 F.Supp. 14, 16 (D.D.C.1995) (stating that the METRO‘s “provision of mass transit is generally considered a proprietary function that would not be protected by sovereign immunity“). If we read section 80 as drawing a distinction between planning and operational activities—in other words, if we read section 80 in roughly the same way that many courts read the discretionary function exception prior to Gaubert—surely the actions of the METRO in this case fall on the operational side of the line. Cf. Dant v. District of Columbia, 829 F.2d 69, 74-75 (D.C.Cir.1987) (granting immunity to the METRO on claim that it negligently designed its fare collection system, but denying immunity on claim that the METRO
The D.C. Circuit first held in Sanders v. WMATA, 819 F.2d 1151 (D.C.Cir.1987), that the governmental function exception in the METRO Compact should be analogized to the discretionary function exception in the FTCA. In Sanders the court began its analysis by observing that the meaning of the governmental/proprietary distinction in section 80 is a question of federal law. See id. at 1154. The court then explained that because Congress had played an active role in the creation and approval of the METRO Compact, the decision to grant immunity for torts committed by METRO employees in the performance of governmental functions should be understood as a decision to adopt Congress‘s understanding of “governmental function.” That understanding, the court reasoned, was embodied in the Supreme Court‘s decision in Dalehite v. United States, 346 U.S. 15 (1953), where the Supreme Court construed the discretionary function exception to the FTCA as an effort to free the government from “liability arising from acts of a governmental nature or function.” Id. at 28. Accordingly, the Sanders court concluded that the framers of the METRO Compact (Maryland, Virginia, and the District of Columbia) had “accepted the Dalehite conception” when they chose to grant the METRO immunity from tort liability for its performance of governmental functions. Sanders, 819 F.2d at 1155. The D.C. Circuit later extended this reasoning in Burkhart, holding that the Supreme Court‘s analysis of the discretionary function exception in Gaubert should also apply to the interpretation of “governmental function” in section 80 of the METRO Compact. Burkhart, 112 F.3d at 1216. The majority adopts the D.C. Circuit‘s analysis in Sanders and Burkhart in parts II B and C of its opinion.
With all respect to the majority and our sister circuit, I do not believe that the framers of the METRO Compact intended the governmental/proprietary distinction in section 80 to track the distinction between discretionary and ministerial acts in
Moreover, even if it was reasonable to believe that the framers of the METRO Compact meant to accept the Dalehite conception of governmental tort immunity, it would not follow that they meant for the governmental function exception in the METRO Compact to expand or contract with the Supreme Court‘s rulings on the scope of the discretionary function exception. Dalehite was widely understood to employ a distinction between planning and operational activities, see Krent, supra, at 880, a distinction the Sanders court seemed to assume when it held that the framers of the METRO Compact had accepted the Dalehite conception. See Sanders, 819 F.2d at 1156 (distinguishing between “general attacks on the testing plan itself” and attacks on the “manner of testing in a particular case” in holding that the METRO was immune from tort liability for the adoption of policy requiring drug and alcohol testing immediately after on-the-job accidents or unusual operating incidents). No one would have imagined in 1966 that the discretionary function would come to be read so broadly as the Supreme Court read it in Gaubert, and there is no reason to believe that the framers of the Compact would have intended that the governmental function exception in section 80 be given such a broad reading. Finally, the fact that the meaning of the governmental function exception is a matter of federal law does not indicate that the meaning of “governmental function” in the Compact should track the meaning of “discretionary function” in the FTCA. The meaning of each term may present a question of federal law, but it does not follow that each presents the same question of federal law. Consequently, I am unpersuaded by the D.C. Circuit‘s arguments that its approach to the METRO Compact is consistent with the intent of the Compact‘s framers.
Perhaps, though, the D.C. Circuit‘s decision to use the Gaubert standard in interpreting the METRO Compact‘s governmental function exception rests more on pragmatic considerations than on any judgment about the intent of the Compact‘s framers. Our sister circuit may believe that we should adopt the body of law governing the discretionary function ex-
governmental immunity. Second, any increase in the predictability and consistency of judicial decisions that might have come about in the wake of Gaubert has come at the significant cost of allowing the discretionary function exception to swallow up the FTCA‘s general waiver of sovereign immunity. Finally, there is at least one approach that would provide a viable alternative to the Gaubert standard. This is the approach suggested by Justice Scalia in his Gaubert concurrence. According to Justice Scalia, “a choice is shielded from liability by the discretionary function exception if the choice is, under the particular circumstances, one that ought to be informed by considerations of social, economic, or political policy and is made by an officer whose official responsibilities include assessment of those considerations.” Gaubert, 499 U.S. at 335 (Scalia, J., concurring in part and concurring in the judgment). This standard is at least as easy to apply as the susceptible-to-policy analysis standard adopted by the Gaubert majority, and it would provide a more reasonable approach to interpreting the governmental function exception in section 80 of the METRO Compact. Further, even if it could be said that the framers of the METRO Compact “accepted the Dalehite conception” of governmental functions, Sanders, 819 F.2d at 1155, this acceptance would be better reflected in Justice Scalia‘s approach than in that of the Gaubert majority because Justice Scalia sought to preserve the insights of the planning/operational distinction suggested by Dalehite. See Gaubert, 499 U.S. at 335 (Scalia, J., concurring in part and concurring in the judgment) (explaining that his approach “recognizes that there is something to the planning vs. operational dichotomy“).4 These reasons suggest that there is at least one viable
I conclude, then, that the D.C. Circuit erred in deciding that Gaubert provides the proper standard for defining the governmental function exception in section 80 of the METRO Compact. Yet because our sister circuit‘s approach to section 80 appears well-established, the cost of refusing to follow that approach is to create a circuit split between the only two circuits that are likely to hear tort claims against the METRO. As the majority points out, we have recognized that maintaining consistency between our circuit and the D.C. Circuit is an important consideration when interpreting the METRO Compact. Ante at 206 n. 9 (citing Lizzi v. Alexander, 255 F.3d 128, 134 (4th Cir.2001)). This raises the difficult question of whether adopting what I regard as a better reading of the METRO Compact is worth the price of creating a circuit split. While I appreciate the practical considerations behind the majority‘s decision to follow the D.C. Circuit‘s reading of section 80, the price of intercircuit consistency on this issue is the gutting of the Compact‘s waiver of sovereign immunity. I believe that price is too high. I would therefore hold that Justice Scalia‘s Gaubert concurrence provides a better standard for deciding whether tortious conduct that does not involve quintessentially governmental activities is shielded by the METRO‘s immunity. Consequently, I must respectfully dissent from Parts II B and C of the majority opinion. This conclusion leaves the question of whether, under the standard proposed by Justice Scalia, the district court erred in refusing to recognize the METRO‘s immunity for (1) the decision to use Escalator One as a stationary walker, (2) the decision not to reassemble Escalator Three, and (3) the failure to warn its passengers that there was no ascending escalator in operation at the Bethesda station.
III.
To reiterate, Justice Scalia‘s standard regards a discretionary choice as policy based, and therefore immune, only “if the choice is, under the particular circumstances, one that ought to be informed by considerations of social, economic, or political policy and is made by an officer whose official responsibilities include assessment of those considerations.” Gaubert, 499 U.S. at 335 (Scalia, J., concurring in part and concurring in the judgment). As my earlier discussion of the METRO‘s decision not to reassemble Escalator Three indicates, the summary judgment record here would allow a reasonable jury to conclude that the person or persons who made the decision not to reassemble Escalator Three did not have the authority to make policy judgments about whether the increased repair costs of reassembling the escalator outweighed the increased risk to passengers created by leaving the escalator disassembled. Accordingly, I would affirm the district court‘s refusal to grant the METRO immunity for its decision not to reassemble Escalator Three. I must therefore dissent from part III B of the majority‘s opinion. Because the record is likewise unclear about who made the decision to brake
IV.
In sum, I acknowledge that if Gaubert is the proper standard for applying the METRO Compact‘s governmental function exception, the majority has correctly disposed of this case. This point underscores the need for close attention to the question of whether we should follow the D.C. Circuit‘s reading of the Compact. Because I believe that Gaubert‘s susceptible-to-policy-analysis standard protects a far greater range of conduct than the Compact‘s framers would have envisioned, I dissent from the majority‘s decision to adopt the Gaubert standard. Instead, I would adopt the standard proposed by Justice Scalia in his Gaubert concurrence because it is more consistent with the intent of the framers of the METRO Compact and does a far better job than the Gaubert standard of identifying those government decisions that are sufficiently policy based to warrant the protection of the governmental function exception. Applying that standard, I would allow the case to proceed to trial on the question of whether the METRO‘s decision not to reassemble Escalator Three was negligence and was the proximate cause of Smith‘s death. I would instruct the district court to clarify on remand whether the other theories of negligence advanced by Smith‘s family and estate survived the summary judgment ruling.
Notes
The Authority shall be liable for its contracts and for its torts and those of its directors, officers, employees and agents committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function.
[a]ny claim ... 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.