FTCA suit barred by sovereign immunity

A federal court in Virginia has dismissed the claim of a woman who entered a naval base and was injured when a guard activated a security barrier.

Judge Mark S. Davis of the Eastern District of Virginia found the woman’s Federal Tort Claims Act, or FTCA, claim was barred by sovereign immunity, because the guard’s actions were an exercise of “professional military discretion.”

“The evidence and authoritative case law before the Court establish that these decisions are grounded in the politically entrenched policy goal of ensuring the safety and security of the Naval Base, to which the Court now accords proper deference,” Davis wrote.

“Consequently, the Court finds that the challenged actions are the types of policy judgments that the discretionary function exception was designed to shield.”

The July 26 opinion is Colburn v. U.S. (VLW 022-3-324).

HACS barrier

In September 2020, Julie Colburn lawfully entered Naval Amphibious Base Little Creek in Virginia Beach by passing through an entry control point gate. Immediately after she cleared the gate, an unauthorized car failed to stop when hailed by a security guard.

The guard activated a final denial barrier, called HACS, to stop the unauthorized car, but the barrier deployed underneath Colburn’s vehicle.

Colburn sued under the FTCA. The naval law enforcement officers were negligent and their deployment of the HACS barrier constituted assault, she argued.

The government moved to dismiss for lack of subject matter jurisdiction.

Discretionary function

Davis noted that “Congress has not waived sovereign immunity for claims ‘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.’”

The discretionary function exception’s purpose, the judge continued, is to “prevent ‘judicial second-guessing’ of legislative and administrative decisions grounded in policy.”

The exception applies if the governmental conduct at issue involved a federal statute, regulation or policy that “specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive,” Davis said.

If the challenged conduct involves an element of judgment, Davis said it “must be ‘susceptible to public policy analysis.’” The focus must be on the objective nature of the decision, not on the actor’s subjective intent.

Turning to the current case, Davis said the 4th U.S. Circuit Court of Appeals “has never squarely addressed whether a military official’s defensive response to an unauthorized vehicle entering a military base triggers the discretionary function exception.”

“The unchallenged evidence before the Court therefore shows that the officers’ actions involved at least some matter of choice. As a result, the Court finds that such actions were discretionary, in accordance with the first prong of the [United States v.] Gaubert standard.” – Judge Mark S. Davis

However, the judge cited an Eleventh Circuit decision which held that “the discretionary function exception protected: (1) an Army base’s gate guard’s decision to raise a retractable steel barrier; and (2) the guard’s failure to make efforts to ensure that no other vehicle would be directly affected by deployment of the barrier.”

In that case, while the gate officer didn’t clear traffic before deploying the barrier to stop an unlawful entry, which caused injury to the plaintiff, the Eleventh Circuit found the discretionary function exception applied to shield the government from liability.

Discretionary response plan

The government argued that naval security officers are guided by a response plan and procedures, which direct officers to verbally warn the intruder and then to use a whistle. If the driver refuses to stop, officers are to deploy the HACS barrier.

According to the government, the written policy allows for any “proportional response” to a breach, including the use of deadly force.

Davis found the government’s argument persuasive.

“The preplanned responses provided by the guidelines are not all-inclusive, thus requiring the officer to use ‘critical thinking skills, training, and judgment based on the totality of the circumstances,’” he explained.

In this instance, the judge said, the security officers made a calculated decision to activate the HACS barrier to prevent further unauthorized access to the base.

“The unchallenged evidence before the Court therefore shows that the officers’ actions involved at least some matter of choice,” Davis wrote. “As a result, the Court finds that such actions were discretionary, in accordance with the first prong of the [United States v.] Gaubert standard.”

The judge then considered whether that discretion had been exercised in furtherance of public policy goals, as well as whether the discretionary function exception was designed to shield such conduct. He noted that the executive and legislative branches of government are charged with forming U.S. military policy.

“These constitutional grants of powers create ‘special factors’ that leave courts ill-equipped to review the judgments of military authorities,” Davis wrote. “Furthermore, deference to military decisions is especially appropriate ‘where matters of base command and discipline are involved.”

Here, because the naval base’s commanding officer had broad authority to handle gate security and protect the base, Davis dismissed the plaintiff’s claim because the officer’s security decisions were “grounded in the politically entrenched policy goal of ensure the safety and security of the Naval Base.”