Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rutherford v. United States

United States District Court, N.D. Alabama, Northeastern Division

December 21, 2017

SHANNON RUTHERFORD, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

         “Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have observed, ‘Sometimes the questions are complicated and the answers are simple.'”[1]Regrettably, this is not one of those times. Not only are the issues in this case complex, but so also are their answers.

         I. SUMMARY OF FACTS

         Plaintiff, Shannon Rutherford, seeks damages for personal injuries sustained on Redstone Arsenal: a 38, 125 acre (7.9 square mile) United States Army garrison adjacent to the City of Huntsville in Madison County, Alabama.[2] Access to the Arsenal is restricted because the garrison is a military installation, and important research and development functions are performed there. More than sixty federal organizations and contractor operations occupy facilities on the Arsenal, including nine Commands of the United States Army, [3] five agencies of the United States Department of Defense, [4] and the National Aeronautics and Space Administration's George C. Marshall Space Flight Center.[5] Persons authorized to enter the garrison do so through one of six gates, which are referred to in Army regulations as “Access Control Points (ACPs).”[6] The events leading to this action occurred at “Gate 1” on Martin Road East: a four-lane highway that traverses the Arsenal from east to west. The security guards who served at that Gate were employed by the United States Army Aviation & Missile Command, and had at their disposal an “active vehicle barrier”[7] known as a “Ground Retractable Automobile Barrier (GRAB), ” which is described as an “electrically powered, hydraulically operated, sub-surface mounted device designed to be fully functional at stopping a vehicle attempting unauthorized entry on the installation.”[8] Colonel Michael Robert Sheehy (U.S. Army Ret.) was Director of Emergency Services at Redstone Arsenal on the date of the events leading to this suit.[9] He explained that the GRAB Barriers at Gate 1 were located

approximately 900 feet from the Access Control Point itself [i.e., the entry gate house at which Security Guards were stationed]. And in between the inbound and outbound lanes there is . . . a [concrete] physical barrier that would prevent vehicles from passing from one side to the other.
The distance [between the gate house and GRAB System barriers] is designed to give the guards . . . enough time to assess the situation and to activate the GRAB net barrier before a potential threat can enter the Arsenal.

Doc. no. 51 (Transcript - Sheehy), at 42 (alterations and ellipses supplied).

         Plaintiff was employed at NASA's George C. Marshall Space Flight Center as a “Flight Systems Engineer.”[10] She had obtained permission to be off work for several hours on Thursday, May 10, 2012, on “sick leave, ” in order to be examined by a private physician in the Huntsville Hospital Medical Mall on Governors Drive.[11]She was driving her personal automobile in the right-hand, outbound lane of Martin Road at approximately 9:30 a.m., and about to exit the Arsenal through Gate 1: a point that was approximately five miles from plaintiff's NASA workplace.[12]

         Shortly before plaintiff reached the exit, however, a pick-up truck driven by an older man named Tommy Bannister approached Gate 1 from the opposite direction.[13]Mr. Bannister did not possess credentials to enter the Arsenal, and appeared to Gate Guard James Jones to be “a little confused” and “lost.”[14] Mr. Bannister said that he was attempting to reach the municipal airport or some other address on the opposite, west side of the Arsenal, off Government property, and thought he could cut across the garrison as a means of shortening the driving distance to his intended destination. Gate Guard Jones explained to Mr. Bannister “that he couldn't just pass through, that it was a controlled area, ” and instructed him to drive forward a few feet, to the so-called “turn-around lane, ” where he could make a “U-Turn” into the outbound lanes of Martin Road.[15] Mr. Bannister did not follow that instruction, however. Instead, he drove past the turn-around lane, [16] but only “at an average take-off speed”[17] of “about 10 to 15 miles an hour.”[18] Jones stepped into the Gatehouse and depressed a button to activate the GRAB System, [19] and steel-net barriers rose from the ground under both the inbound and outbound lanes of Martin Road.[20]

         Before Jones activated the GRAB System, he did not make any attempt to survey the outbound lanes of Martin Road in order to determine whether the barrier might impact innocent motorists about to exit the Arsenal.[21] As a result, plaintiff's automobile collided with the barrier that rose from the ground under the outbound lanes, and she was seriously injured.[22] She filed an administrative claim with the United States Army Aviation & Missile Command on October 30, 2012, and commenced this action on April 3, 2015.

         II. PLAINTIFF'S CLAIMS

         Plaintiff alleges under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671-2680 (“FTCA”), that the following acts by representatives of the United States were negligent, and that each “independently caused (and/or combined and concurred to cause) plaintiff's injuries”:[23] (1) the Army's decision to design the GRAB System installed at Gate 1 with a single, master-control button that simultaneously activated the steel-net barriers stored under both the inbound and outbound lanes of Martin Road; (2) Gate Guard James Jones's failure to retain Mr. Bannister's driver's license, which contributed to Bannister's failure to turn his truck around and exit Arsenal property; (3) Jones's decision to activate the GRAB System when none of the threat scenarios specified in controlling Army regulations were presented;[24] and (4) Jones's failure “to make a ‘reasonable effort to ensure' that no other vehicles would be affected by deploying the GRAB System.”[25] Defendant's primary response to those claims is based upon the “discretionary function exception” to the FTCA, which deprives federal courts of subject-matter jurisdiction over tort claims resulting from a federal employee's performance of a “discretionary function.”[26] Accordingly, that issue must be resolved before taking any steps to address the merits. Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1275 (11th Cir. 2000).

         III. THE DISCRETIONARY FUNCTION EXCEPTION

         Historically, suits seeking damages for the negligent or wrongful acts of employees of the United States Government were barred by the common-law doctrine of sovereign immunity. See, e.g., Alden v. Maine, 527 U.S. 706, 715 (1999); Cohens v. Virginia, 19 U.S. 264 (1821).[27] A limited waiver of that immunity was created in 1946 with the enactment of the FTCA, which grants district courts exclusive jurisdiction over civil actions to recover money damages

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of 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). See also, e.g., Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 475 (1994) (observing that § 1346(b) “waived the sovereign immunity of the United States for certain torts committed by federal employees”). The FTCA makes the United States liable for torts to which it applies “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674.

         Even so, the FTCA does not waive the sovereign immunity of the United States in all respects. Instead, as the Supreme Court observed,

Congress was careful to except from the Act's broad waiver of immunity several important classes of tort claims. Of particular relevance here, 28 U.S.C. § 2680(a) provides that the Act shall not apply to “[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.” (Emphasis added.)
The discretionary function exception, embodied in the second clause of § 2680(a), 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).

         District courts are instructed that the exception must be strictly construed in favor of the Government; and, if it appears that a claim falls within the exception, the court lacks subject-matter jurisdiction. See, e.g., Swafford v. United States, 839 F.3d 1365, 1369-70 (11th Cir. 2016) (citing U.S. Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir. 2009); JBP Acquisitions, LP v. United States ex rel. FDIC, 224 F.3d 1260, 1263 (11th Cir. 2000)).

         A. The Test for Determining Whether the Exception Applies

         District courts must apply a test framed by the Supreme Court's opinion in United States v. Gaubert, 499 U.S. 315 (1991), for the purpose of determining whether the discretionary function exception to the FTCA deprives federal courts of subject-matter jurisdiction over allegedly negligent conduct of a Government agency or employee. See, e.g., Hughes v. United States, 110 F.3d 765, 767-68 (11th Cir. 1997); Powers v. United States, 996 F.2d 1121, 1124 (11th Cir. 1993); Autery v. United States, 992 F.2d 1523, 1528 (11th Cir. 1993); Willett v. United States, 24 F.Supp.2d 1167, 1172 (M.D. Ala. 2014).

         1. The first part of the Gaubert test- Was the allegedly negligent conduct mandatory or discretionary?

         As its name implies, the discretionary function exception “covers only acts that are discretionary in nature” - in other words, acts that “‘involve an element of judgment or choice.'” Gaubert, 499 U.S. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Accordingly, a court must first look at the nature of the allegedly negligent act, and determine whether its performance involved an element of judgment or choice on the part of the federal agency or employee. See Gaubert, 499 U.S. at 322-23; Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997); Autery, 992 F.2d at 1526; Powers, 996 F.2d at 1124. That inquiry focuses upon the question of whether the language of “the controlling statute or regulation mandates that a government agent perform his or her function in a specific manner.” Hughes, 110 F.3d at 768 (quoting Powers, 996 F.2d at 1125).

         Conduct is mandatory, in the sense of being obligatory or compulsory, [28] when “a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, ' because ‘the employee [then] has no rightful option but to adhere to the directive.'” Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536) (emphasis and alteration supplied); see also, e.g., Nguyen v. United States, 556 F.3d 1244, 1250 n.2 (11th Cir. 2009) (observing that conduct is mandatory “when a federal statute, regulation, or policy specifically prescribes a course of conduct embodying a fixed or readily ascertainable standard”).

Under the applicable precedents, therefore, if a regulation mandates particular conduct, and the [federal agency or] employee obeys the direction, the Government will be protected because the action will be deemed in furtherance of the policies which led to the promulgation of the regulation. See Dalehite [v. United States, 346 U.S. 15, 36 (1953)]. If the employee violates the mandatory regulation, [however, ] there will be no shelter from liability because there is no room for choice and the action will be contrary to policy. . . .

Gaubert, 499 U.S. at 324 (emphasis and alterations supplied).

         2. The second part of the Gaubert test- Applied only when the allegedly negligent conduct is determined to have been discretionary

         On the other hand, if a statute, regulation, or policy does not specifically prescribe a course of action, but instead allows the federal agency or employee to exercise a degree of judgment or choice, then the second part of the test framed by the Gaubert opinion must be addressed. It requires the court to determine whether the allegedly negligent discretionary conduct was “grounded in considerations of public policy.” Ochran, 117 F.3d at 499 (citing Gaubert, 499 U.S. at 322-23); see also Autery, 992 F.2d at 1526-27 (“[E]ven assuming the challenged conduct involves an element of judgment, however, we then must determine if the challenged actions are the kind of conduct that the discretionary function exception was designed to shield.”) (alteration in original, citations and internal quotation marks omitted). As the Supreme Court explained in Gaubert:

When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion. For 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. 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.

Gaubert, 499 U.S. at 324-25 (footnote omitted).

         If both parts of the Gaubert test are satisfied, discretionary acts of the federal agency or employee will be protected, even if the particular acts that resulted in injury to the plaintiff were negligent. See Varig Airlines, 467 U.S. at 820.

         B. Army Regulations Bearing Upon the Application of the Gaubert Test in This Case

         Subsections 1 through 3 of the present Part of this opinion describe regulations that prescribe design standards for “Access Control Points (ACPs)” on all Army installations, while subsection 4 addresses General Orders that specifically applied to Redstone Arsenal on the date of plaintiff's injuries, and governed Gate Guard James Jones's operation of the GRAB System Barriers at Gate 1.

         1. The Basic Access Control Point Design Regulation

         The Protective Design Center of the United States Army Corps of Engineers promulgated a regulation during December of 2004 entitled “Army Access Control Points Standard Definitive Design.” The first part of that regulation states, in mandatory terms, [29] that Access Control Points “shall be designed to” achieve three purposes: i.e.,

ACPs shall be designed [1] to prevent an unauthorized vehicle or pedestrian from entering the Installation, [2] to ensure safety of innocent ACP users, and [3] to maximize throughput of vehicular and pedestrian traffic. In order to meet these diverse and sometimes conflicting requirements, Army ACP designers must consider local site constraints and then use creativity and innovation to develop design solutions that meet all of the ACP performance requirements. There are no cookie-cutter design solutions. Each design is unique. Designers must carefully consider all of the criteria and then select and design protective measures that will be most effective for the given site.

Defendant's Ex. 11 (Army Access Control Points Standard Definitive Design), ¶ 1.3, at 2 (boldface in original, italicized emphasis and alterations supplied).

         Part 4 of the same regulation reinforces the second design purpose - that of ensuring the safety of innocent users of the ACP - by using the mandatory phrase “must include” to emphasize that “ACP designs must include adequate safety features to ensure the safety of motorists entering and exiting the ACP.” Id., ¶ 4, at 3 (emphasis supplied). Part 4 also uses the obligatory phrase “must provide” to emphasize that “Active vehicle barrier controls must provide sufficient information to ACP guards to help them decide when to deploy the barriers.” Id. (emphasis supplied).[30]

         Part 2 of the Basic Access Control Point Design Regulation references standards promulgated by three other Army components and incorporates each by inclusion of copies in Appendices “A” through “C”: i.e.,

2.1 THE ARMY STANDARD FOR ACPs
The Army Standardization Committee established the Army Standard for Access Control Points on 14 December 2004. The standard lists mandatory requirements for all Army ACPs. The standard is included in Appendix A. The Army Standardization Committee must approve changes, deviations, or waivers from this standard.
2.2 OFFICE OF PROVOST MARSHAL GENERAL (OPMG) DESIGN CRITERIA
OPMG, as the Army's proponent for Access Control Points, provided their criteria for ACP's [sic] in a document titled “ACP Criteria from OPMG” dated 19 Novembver 2004. The OPMG Criteria consist of [both] mandatory requirements and non-mandatory recommendations. Mandatory requirements in the criteria are designated by the words “shall, ” “will, ” or “must, ” whereas non-mandatory recommendations are designated by the words “should, ” “can, ” or “may.” OMPG Criteria have been made a part of this Standard Definitive Design. The OPMG Criteria is [sic] included in Appendix B.
2.3 STANDARD DEFINITIVE DESIGN DRAWINGS
The U.S. Army Corps of Engineers (USACE), as the Center of Standardization for Army Access Control Points, developed Standard Definitive Design drawings for ACP's. These drawings incorporate both the Army Standards and the OPMG Criteria. They also provide mandatory requirements and recommendations to Army ACP designers and Installation Security Specialists for designing Army ACPs. The drawings have been made a part of this Standard Definitive Design and are included in Appendix C.

Id., ¶¶ 2.1 - 2.3, at 2-3 (boldface in original, emphasis and alterations supplied).[31]

         2. Appendix A to the Basic Design Regulation- Standards promulgated by the Army Facilities Standardization Committee

         Appendix A contains design standards promulgated by the Army Facilities Standardization Committee on December 14, 2004. The Foreword to that regulation states that it “establishes mandatory features” for Access Control Points at “all active Army installations, ”[32] and Paragraph 2-2.1 uses the obligatory phrase “must be” to mandate that Access Control Points “be designed to ensure [the] safety of motorists, pedestrians, and guards.” Defendant's Ex. 11 (Army Access Control Points Standard Definitive Design), app. A (Army Standard for ACPs), ¶ 2-2.1, at 2 (alteration supplied).[33]

         3. Appendix B to the Basic Design Regulation- Standards promulgated by the Office of the Provost Marshal General

         Appendix B incorporates design standards promulgated by the Army's Office of Provost Marshal General (“OPMG”) on November 19, 2004. Relevant criteria are summarized below.

         a. Threat scenarios addressed by the OPMG design standards

         The OPMG standards use the obligatory phrase “shall be designed” to emphasize that Access Control Points shall be designed to defeat the following four minimum vehicle threat scenarios. Additional vehicle threat scenarios may be considered if supported by a local threat assessment.

1) Vehicle Threat Scenario #1. Threat vehicle enters the ACP in the inbound or outbound lane(s) at the maximum speed attainable at the ACP entrance and then immediately accelerates at its maximum acceleration rate through the ACP. Army policy sets the maximum acceleration rate of a threat vehicle at 11.3 fs.
2) Vehicle Threat Scenario #2. Threat vehicle enters the ACP in the inbound or outbound lane(s) at or under the posted ACP Speed Limit and then, later at some point further in the Approach Zone, accelerates at its maximum acceleration rate through the rest of the ACP.
3) Vehicle Threat Scenario #3. Threat vehicle attempts to covertly enter the ACP, but is detected and denied entry by guards at the ID Check Area. Vehicle driver then defies guards and accelerates through the rest of the ACP at the vehicle's maximum acceleration rate.
4) Vehicle Threat Scenario #4. Similar to Threat Scenario 3 above, except the driver of the denied vehicle drives toward the Turn-around or Search Area at the ACP Speed Limit (25 mph) as if complying with guard instructions, but then fails to turn and instead accelerates at its maximum acceleration rate through the rest of the ACP.

Defendant's Ex. 11 (Army Access Control Points Standard Definitive Design), app. B (ACP Criteria From OPMG), ¶¶ I.5.a.1 - a.4, at 2-3 (emphasis supplied).

         b. The requirement of a single, master-control button

         Various other provisions of the OPMG regulation require the installation of active vehicle barriers in all inbound and outbound lanes of primary and secondary access control points, [34] and mandate that a “master ‘Emergency Fast Operate' (EFO) button” be used to simultaneously “close all active barriers in all inbound and outbound lanes.” Id., ¶ I.20.f.1, at 8 (emphasis supplied).[35]

         4. General Orders specifically applicable to Redstone Arsenal

         General Orders specifically governing the procedures for controlling all Access Control Points on Redstone Arsenal were promulgated by the Chief of the garrison's Physical Security Division in the Directorate of Emergency Services on September 29, 2010. See Plaintiff's Ex. 1, at 11-33. Colonel Sheehy described the Orders as “a directive that is compulsory in nature, ”[36] and issued in order to “add specificity to the Army-level directives” discussed in the preceding subsections.[37]

         a. Obtaining a form of governmental identification

         The General Orders instruct Gate Security Guards to obtain some form of governmental identification from all visitors who seek, but are denied, access to the garrison, and to record specific information on a “vehicle turn-around document”:

a. Prior to denying access to the installation, ACP personnel will conduct inquiries to determine visitor access: (If able to validate visit, process, inspect and issue visitor pass. If unable to validate the visit, initiate turn around procedures.)
(1) Obtain a form of government ID (local, state, federal photo identification)[38]
(2) What is the nature of your visit? (Official or Personal)
(3) Who are you here to visit?
(4) Do you have a contact number of the person you are visiting?
* * * *
c. When vehicles are denied entrance to RSA, the following information will be recorded on the vehicle turn-around document:
(1) Reason for turnaround: Be very specific as to the reason for access denial.
(2) Drivers Name and other pertinent information.
(3) License Plate Number and state of issue.
(4) Make, model, year, color and type of vehicle (2005 Blue Chevy Impala 2DR).

Id., ¶¶ 9.a. & c., at 22 (emphasis and footnote supplied). Despite the omission of a mandatory adverb, such as “must, ” from the directive stated in Paragraph 9.a(1) above - i.e., “Obtain a form of government ID” - the structure of that directive implies an obligatory, non-discretionary requirement.[39]

         b. Threat scenarios authorizing deployment of GRAB System Barriers

         The General Orders also contain three appendices containing specific instructions for deploying each of the three “active vehicle barrier systems” used on Redstone Arsenal.[40] The second appendix (“Annex B”) addresses Ground Retractable Automobile Barrier (GRAB) Systems, and “establishes procedures to be followed by all Security Force personnel posted at the Access Control Points (ACP) in the Operation and Deployment of the GRAB System.”[41] Similar to the OPMG criteria applicable to all Army installations discussed in subsection III.B.3.a., supra, the General Orders also describe threat scenarios that authorized Gate Security Guards to deploy the GRAB System's barriers:

(1) Unauthorized Vehicle Access and Gate Runners: The decision to deploy the GRAB Barrier System will be at the discretion of the security personnel in the lane that the unauthorized vehicle is attempting to access or the guard performing overwatch duties. If a threat is perceived, Guard personnel are authorized to immediately deploy the GRAB System. Threat scenarios meeting this criteria are:
a. High Speed Attack From Outside Installation:
• The threat vehicle enters the ACP at whatever speed it can attain at the ACP entrance.
• The vehicle could be using the in-bound or out-bound lanes.
• For a straight roadway coming into the ACP, the threat vehicle's entrance speed can be quite high.
b. High Speed Attack After Entrance:
• The threat vehicle enters the ACP at a speed slightly below the setting of the over-speed detector at the ACP entrance.
• Once past the over-speed detector, the threat vehicle then begins its attack by accelerating toward the final barriers.
c. Covert Attack at ID Check Area:
• The driver of the threat vehicle attempts to gain access using false credentials.
• The guards deny access and direct the driver to either the Search Area or Turn-around lane.
• The driver defies the guard instructions and immediately bolts toward the final barrier.
d. Covert Attack at End of the Turn Around Lane:
• The driver of the threat vehicle attempts to gain access using false credentials.
• The guards deny access and direct the driver to either the Search Area or the Turn-around Lane.
• The driver feigns compliance with the guard instruction and approaches the Response Zone [i.e., “the area between the guard booth and the GRAB barrier, ” 900 feet west of Gate 1 on both the inbound and outbound lanes[42] at the ACP speed limit.
Instead of turning into the Search Area or Turn-around lane when reaching the Response Zone entrance, [43] the driver bolts toward the final barrier.

Plaintiff's Ex. 1, app. B, ¶¶ 4.b(1)a.-d., at 29-30 (emphasis, alterations, and footnotes supplied).

         c. Ensuring that innocent vehicles would not be affected

         The General Orders also mandated that “Security Guard deploying the GRAB Barrier System will make a reasonable effort to ensure that there are no other vehicles that will be directly affected by deploying the GRAB Barrier System.”[44] Id., ¶ 4.b(4), at 30 (emphasis supplied).

         C. The Viability of Plaintiff's Claims Under the Gaubert Test

         1. The requirement of a single, master-control button

         As discussed in Part III.B.3.b., supra, the decision to design the GRAB System installed at Gate 1 on Redstone Arsenal with a single, master control button that simultaneously deployed the GRAB barriers stored under both the inbound and outbound lanes of Martin Road was mandated by the regulations promulgated by the Office of the Army's Provost Marshal General: i.e., “A master ‘Emergency Fast Operate' (EFO) button shall be provided on a Barrier Master Control Panel located in the Gatehouse. . . . The ‘Emergency Fast Operate' buttons will close all active barriers in all inbound and outbound lanes.” Defendant's Ex. 11 (Standard Designs for ACPs), app. B (ACP Criteria From OPMG), ¶ I.20.f.1, at 8 (emphasis supplied).[45]

         Plaintiff attempted to overcome the force of that mandatory design standard by eliciting testimony from Colonel Sheehy that, prior to the date of plaintiff's injuries, he and other officers in the garrison's chain-of-command had recognized the risk that Gate 1's “master Emergency Fast Operate” control button posed for innocent, non-threat motorists in the outbound lanes of Martin Road.[46] Their recognition of that specific danger was manifested in an electronic mail message transmitted by Colonel Sheehy to Colonel John Hamilton, the Garrison Commander, and several other Arsenal officials shortly after the incident leading to this suit, and stating in pertinent part that:

The enduring concern is the mandated dual activation of both inbound and outbound traffic lanes. The risk and concern we anticipated manifested itself in today's accident, and we are fortunate there were not additional or more serious injuries. I believe we should challenge this design mandate to DA [i.e., Department of the Army], and will coordinate with Mike Moore and team to establish a way ahead on this. Will keep you posted.

Plaintiff's Ex. 30, fourth ¶ (alteration supplied).[47]

         Nevertheless, until such time as the Department of the Army grants permission to deviate from the OPMG design requirement, Army personnel have “no rightful option but to adhere to the directive.” Gaubert, 499 U.S. at 322.

         Accordingly, the discretionary function exception to FTCA liability deprives this court of subject-matter jurisdiction over plaintiff's claim that it was negligent to design the GRAB System installed at Gate 1 with a single, master-control button, and that claim must be dismissed. Id. at 324 (“Under the applicable precedents, therefore, if a regulation mandates particular conduct, and the employee obeys the direction, the Government will be protected because the action will be deemed in furtherance of the policies which led to the promulgation of the regulation.”).

         2. Gate Guard Jones's failure to retain Mr. Bannister's driver's license, which contributed to Bannister's failure to turn his vehicle around and exit Army property

         Gate Guard James Jones admitted that he did not obtain a state driver's license or other form of governmental identification from Mr. Bannister, as required by General Order Paragraph 9.a.1, discussed in Part III.B.4.a, supra, and retain that document until Bannister entered the turn-around lane and was prepared to exit Arsenal property.[48] Jones also failed to record the information mandated by Paragraph 9.c on a “vehicle turn-around document.”

         Jones characterized those portions of the General Orders as discretionary “guidelines, ” or merely suggested operating practices.[49] Colonel Sheehy described the requirement as a “best-in-class practice”[50] that was “always within the guard's discretion.”[51] This court does not believe that the testimony of Gate Guard Jones and Colonel Sheehy can change the mandatory terms of the regulation into a discretionary practice, but even if it were assumed that it could, the second part of the Gaubert test does not provide the Government any relief.

         One purpose of training Gate Security Guards to retain the identification of a person denied access to the Arsenal was to provide an incentive for that driver to obey the instruction to turn his vehicle around, and exit the garrison.[52] As Colonel Sheehy admitted, a driver would “be less likely to drive off” without his license.[53]Moreover, Gate Guard Jones offered only two justifications for exercising his “discretion” to ignore the requirements: i.e., when no other Security Guards were on duty in the Gatehouse; or, the other Guards were otherwise indisposed.[54]Significantly, however, neither Jones nor any other Government witness testified that either circumstance existed when Mr. Bannister arrived at Gate 1.

         Thus, even viewing General Order Paragraphs 9.a.1 and 9.c as discretionary “guidelines” or “best-in-class practices, ” the choice of Gate Guard Jones to ignore those requirements was not grounded in a consideration of the public policies stated in the regulation discussed in Part III.B.1, supra: that is, the omissions did not aid in preventing an unauthorized vehicle from entering the installation.[55] Thus, Jones's failure to comply with the General Orders' directives was not the kind of conduct that the discretionary function exception was designed to shield. See, e.g., Berkovitz, 486 U.S. at 536; Autery, 992 F.2d at 1526-27.

         3. Jones's decision to activate the GRAB System when none of the threat scenarios specified in pertinent Army regulations were presented

         Of the four threat scenarios described in the ACP Criteria From OPMG discussed in Part III.B.3.a., supra, only the third and fourth approximate the events that led to this suit: i.e.,

3) Vehicle Threat Scenario #3. Threat vehicle attempts to covertly enter the ACP, but is detected and denied entry by guards at the ID Check Area. Vehicle driver then defies guards and accelerates through the rest of the ACP at the vehicle's maximum acceleration rate.
4) Vehicle Threat Scenario #4. Similar to Threat Scenario 3 above, except the driver of the denied vehicle drives toward the Turn-around or Search Area at the ACP Speed Limit (25 mph) as if complying with guard instructions, but then fails to turn and instead ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.