BOWMAN, Circuit Judge.
Tina Marie Sellers, by and through her mother Joann Sellers; Albert Deuser; and Phyllis Menke appeal from the order of the District Court
The District Court dismissed appellants' claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, holding that the government was protected from suit by the discretionary function exception of the FTCA. We review de novo. See Appley Bros. v. United States, 7 F.3d 720, 722 (8th Cir.1993). "[W]e accept all of the factual allegations in [the] complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate." Berkovitz v. United States, 486 U.S. 531, 540, 108 S.Ct. 1954, 1961, 100 L.Ed.2d 531 (1988). Because the District Court adduced facts beyond the skeletal allegations of the complaint, we too will recite the more complete story.
Tina Sellers is the daughter of, and Albert Deuser and Menke are the parents of, Larry Deuser, who is deceased. On July 3-6, 1986, the event known as the Veiled Prophet (or VP) Fair was held on the grounds of the Jefferson National Expansion Memorial in St. Louis, Missouri (the site of the Gateway Arch). Because the Expansion Memorial is a national park (a special use permit was issued to the city of St. Louis for the Fair), the Secretary of the Interior is responsible for maintaining the park and its facilities and for providing services to visitors, functions generally carried out by the National Park Service. See Universal Interpretive Shuttle Corp. v. Washington Metro. Area Transit Comm'n, 393 U.S. 186, 187 & n. 1, 89 S.Ct. 354, 355 & n. 1, 21 L.Ed.2d 334 (1968). The park is within the jurisdiction of the National Park Rangers. On the evening of July 4, 1986, many thousands of people were in attendance at the Fair, including Larry Deuser. Rangers David Vecera and Edward Bridges observed Deuser grabbing women on the buttocks, to the obvious outrage of the victims and others. The rangers warned Deuser, and continued to keep an eye on him. When he urinated in public, the rangers arrested him. As the rangers made their way to their tent with Deuser, he was argumentative with them and continued making rude comments to female visitors.
After conferring with chief ranger Dennis Burnett, the rangers elected to turn Deuser over to St. Louis police. But the police department was overwhelmed with the additional workload created by the Fair, and officers were unable or unwilling to process Deuser's arrest. At this point, the rangers, together with St. Louis police officer Lawrence King, decided to release Deuser, but away from the park so that he would not return to the Fair that evening.
There is some dispute between the parties about where Deuser was released, and also some question of the timing of the events that occurred that night. It is sufficient for our purposes to know the undisputed facts: Deuser was freed in a parking lot somewhere in St. Louis, alone and with no money and no transportation. At some time after that, he wandered onto an interstate highway and was struck and killed by a motorist. Deuser's blood alcohol level was 0.214 at the time of his death, well above the legal limit for intoxication.
The appellants brought a variety of state and federal claims against a number of municipal and federal actors. When this case was before us previously, we held that summary judgment for various of the defendants was proper on the claims brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and 42 U.S.C. § 1983. See Sellers v. Baer, 28 F.3d 895 (8th Cir.1994), cert. denied, 513 U.S. 1084, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995). The FTCA claim for Deuser's wrongful death and a state law claim against police officer King remained. As we noted above, the District Court now has dismissed the FTCA claim for lack of subject matter jurisdiction. In addition, the court declined to exercise supplemental jurisdiction over the state law claim against King (a decision that has not been appealed).
By enacting the FTCA, Congress opted to waive the sovereign immunity to civil suit enjoyed by the United States, and to give consent to be sued "for 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 United States acting within the scope of his employment. 28 U.S.C.A. § 1346(b)(1) (Supp.1997). The federal courts have subject matter jurisdiction over such claims "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." Id. But, as is true in other cases where Congress on behalf of the United States has waived sovereign immunity, amenability to suit is not without exception.
The exception relevant here is commonly known as the discretionary function exception.
To determine whether the discretionary function exception applies here to protect the rangers and the United States from suit, we engage in a two-step inquiry.
First, we must consider whether the actions taken by the rangers as regards Deuser were discretionary, that is, "a matter of choice." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958. "[C]onduct cannot be discretionary unless it involves an element of judgment or choice." Id. It is axiomatic that a government employee has no such discretion "when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id. If the rangers had a policy they were to follow in releasing Deuser, as the appellants contend, "then there is no discretion in the conduct for the discretionary function exception to protect." Id.
There are two written policies that the parties contend are of relevance here. The first is the Jefferson National Expansion Memorial Standard Operating Procedure for arrests (SOP), dated December 22, 1987.
The rangers argue (and the District Court concluded) that the SOP arrest policy was abrogated temporarily by the VP Fair 1986 Operations Handbook. The Handbook emphasizes the "primary role" of the rangers during the Fair: "resource protection followed by the things we do best, visitor services and visitor care." VP Fair 1986 Operations Handbook — Overview and Hindsight
The rangers' argument — that the Handbook superseded the SOP for arrests on the grounds of the Expansion Memorial during the Fair — misapprehends the Handbook guidelines. The Handbook was intended to provide guidance to the rangers on the extent to which certain laws should be enforced during the Fair. Read as a whole, the Handbook suggests that enforcement in many circumstances might be relaxed during the event, so that arrests would be kept to a minimum. The rangers' "sound judgement and discretionary action" was to be exercised in the context of making decisions on whether to make an arrest at all; the Handbook never touches on the procedure to be followed in the event an arrest is made (except to note that holding facilities and rangers will be busy during the Fair). The Handbook did not override the standard operating procedures.
We know that Deuser was arrested by the rangers. The SOP to be followed when a person is arrested by a ranger at the Expansion
The question remains whether a ranger's decision to terminate an arrest made at the park during the Fair would require the same sort of judgment and choice as would the initial decision to make the arrest. We think that it would. There is nothing in either the SOP or the Handbook that sets forth a policy — whether discretionary or otherwise — for terminating an arrest. But we conclude that this is because the decision to terminate an arrest is closely akin to the decision to make the arrest in the first place. Law enforcement decisions of the kind involved in making or terminating an arrest must be within the discretion and judgment of enforcing officers. See, e.g., Redmond v. United States, 518 F.2d 811, 816-17 (7th Cir.1975) ("It cannot be denied that the Government has a duty to maintain law and order, but how best to fulfill this duty is wholly within the discretion of its officers ..."). It would be impossible to put into a manual every possible scenario a ranger might encounter, and then to decide in advance for the ranger whether an arrest should be made and, once made, under what circumstances an arrest could be terminated. Just as the rangers had discretion to decide (within constitutional limits, of course) when and whether to make an arrest, so they had — and here exercised — discretion to terminate an arrest without charging the suspect. Under the terms of the Handbook, that discretion became even broader during the Fair.
We hold that terminating Deuser's arrest, that is, releasing him without charging him with a crime, was a discretionary function reserved to the judgment of the rangers.
We move now to the second part of our inquiry. Notwithstanding the judgment involved in terminating Deuser's arrest, we must ask "whether that judgment is of the kind that the discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1959. To be protected, the rangers' conduct must be "grounded in the social, economic, or political goals" of the Handbook's discretionary enforcement guidelines. United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 1274, 113 L.Ed.2d 335 (1991). Because those published guidelines are clear and give officers wide discretion in making enforcement decisions during the Fair, the rangers at the outset enjoy the presumption that their conduct in releasing Deuser meets the second part of the test: that their actions were "grounded in policy." Id. at 324, 111 S.Ct. at 1274. That is, if a provision of the Handbook "allows the employee discretion, the very existence of the [provision] creates a strong presumption that a discretionary act authorized by the [provision] involves consideration of the same policies which led to the promulgation of the" Handbook. Id. Appellants have alleged no facts to rebut that presumption, no facts that "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 Handbook. Id. at 324-25, 111 S.Ct. at 1275. In fact, they do not even address this step of the discretionary function analysis in their brief.
We think the conduct of the rangers here is the classic example of a "permissible exercise of policy judgment." Berkovitz, 486 U.S. at 539, 108 S.Ct. at 1960. Social, economic, and political goals — all three — were the basis for the actions taken by the rangers.
An important function of the rangers during the Fair, according to the Handbook, was to serve and protect visitors to the park. Clearly, the decision to remove Deuser from the park served the social goals of protecting
The economic goals of the guidelines are clear, and are spelled out in some detail in the Handbook. Law enforcement manpower was expected to be stretched thin, both during the Fair and on the first business day following the Fair, when arrestees would have to be transported for court appearances. (In fact, the SOP tells rangers to expect the process to take all day, even under ordinary circumstances.) There were simply not enough officers to arrest and to charge all persons who might commit a crime at the park during the four-day Fair. The rangers' colleagues, St. Louis police department officers, were expected to be equally taxed with their own enforcement duties. Moreover, it was anticipated that the nearest holdover facility would be overcrowded with arrestees, meaning more miles and more manpower to transport suspects to alternative holdover facilities and to see to their arraignments. Releasing Deuser without charging him preserved already scarce law enforcement resources.
The political goals to be served by the guidelines concern law enforcement "territories." The Fair was not a National Park Service event. The Handbook acknowledges that "[t]he St. Louis Police Department is the lead agency for law enforcement." VP Fair 1986 Operations Handbook — Overview and Hindsight para. 6. As the chief ranger stated in the Handbook, the federal park rangers' "primary role is defined as resource protection followed by the things we do best, visitor services and visitor care." Id. When the police opted not to process Deuser's arrest, the rangers appropriately decided not to override the decision of "the lead agency for law enforcement." The Fair's success depended in part on all enforcement agencies involved working together toward a common goal, and the rangers acted properly to preserve that cooperation by releasing Deuser in this situation. Further, the Fair was designed to be an enjoyable event for the city, and it would have been unfortunate if overzealous federal law enforcement had dampened the festivities.
The language of the Handbook itself summarizes the social, economic, and political policies at work here: "This level of enforcement [necessary to achieve the rangers' primary responsibilities] is determined by Park Management and is deliberately kept flexible enough to maximize utilization of our available resources and minimize resource damage without becoming a `roadblock' to the fair and the fair-goer." Id. para. 7. We hold that the conduct of the officers here was grounded in the social, economic, and political policies of the Handbook.
To sum up, the rangers' decision to release Deuser away from the park, without charging him with a crime (1) required the exercise of judgment as noted in the Handbook and (2) implicated consideration of the social, economic, and political policies behind the Handbook's enforcement guidelines. Thus the rangers' conduct falls within the discretionary function exception of the FTCA, and there is no federal subject matter jurisdiction for appellants' FTCA wrongful death claims.
The judgment of the District Court is affirmed.
Appellants also claim that the paragraph from the Handbook we have quoted above gave rangers discretion to act only on July 7, not July 4. That argument is absurd. The Fair ran from Thursday, July 3 to Sunday, July 6 and the paragraph opens by referring to the "busy weekend." July 7 was a Monday and the Fair was over. Why would the Handbook refer to enforcement decisions to be made during the Fair, and then make the guidelines applicable only after the Fair was over? It is clear that the reference to July 7 concerned matters that would be pending because of the Fair but that could not be handled until the first business day after the Fair.