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Full Opinion
United States Court of Appeals
For the First Circuit
No. 17-2137
JOSEPH S. HAJDUSEK,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Selya, and Kayatta,
Circuit Judges.
David N. Damick, with whom The Law Offices of David N. Damick
and Thomas P. Colantuono were on brief, for appellant.
Courtney L. Dixon, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, with whom Chad A. Readler,
Acting Assistant Attorney General, John Farley, Acting United
States Attorney, and Mark B. Stern, Attorney, Appellate Staff,
Civil Division, United States Department of Justice, were on brief,
for appellee.
July 11, 2018
KAYATTA, Circuit Judge. Joseph Hajdusek participated in
the Marine Corps Delayed Entry Program ("DEP"), a program through
which individuals can sign up to join the Marine Corps but delay
entry in order to better prepare for basic training. Hajdusek
alleges that a superior negligently ordered him to undertake an
unreasonable program of physical activity, which ultimately
resulted in serious injuries. Left disabled and abandoned by the
Corps, he sued the United States under the Federal Tort Claims Act
("FTCA"). The district court concluded that the discretionary
function exception to the FTCA barred the suit and dismissed the
case. For the following reasons, we must affirm.
I.
When reviewing a dismissal for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), we
"construe the [c]omplaint liberally and treat all well-pleaded
facts as true, according the plaintiff the benefit of all
reasonable inferences." Murphy v. United States, 45 F.3d 520, 522
(1st Cir. 1995). In addition to the pleadings, Hajdusek submitted
certain additional materials for the district court to consider in
evaluating its own jurisdiction, including his own declaration and
various Marine Corps documents. The district court considered
those materials without objection from the government, and the
government makes no objection to our proceeding similarly here, so
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we draw the following facts from the complaint as well as from the
additional materials considered by the district court.
In August 2010, Hajdusek signed up for the Marine Corps
DEP. The DEP is a program that allows individuals to enlist in
the Marine Corps Reserve up to one year prior to enlisting in the
regular Marine Corps. Individuals participating in the program
are known as "poolees." While enrolled in the program, poolees
prepare physically and mentally for their enlistment into the
active-duty Marine Corps. The program aims to assist in training
and reduce attrition. One important aspect of the pool program is
particularly relevant here: Poolees, though affiliated with a
Marine recruiting station, are not active-duty Marines and are not
entitled to Department of Defense type benefits. As guidance
documents from the Marine Corps state, poolees "are not Marines
yet."
After participating in the program for several months,
Hajdusek met most of his weight and strength goals, and was
preparing to ship to basic training upon passing a pull-up test.
Prior to this final stage, he went skiing with his family, a trip
approved by one of the Marines supervising the program. During
this trip, Hajdusek received a phone call from Staff Sergeant
Mikelo, the newly installed manager of his recruiting station,
asking why he had not shown up for a pool event. Dissatisfied
with Hajdusek's answer, Mikelo ordered him to appear for a physical
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training session on March 1. Hajdusek did as he was told. When
he arrived for the training session, Mikelo put him through a
workout that Hajdusek describes in a declaration as "much longer
and much more strenuous than any other workout I had ever been
given." During this workout, he did more repetitions than normal
of lunges, pull-ups, push-ups, crunches, and air squats, was given
only two twenty-second water breaks over a two-hour period, and
was made to exercise for at least thirty minutes longer than
normal. Near the end of the session he showed signs of
overexertion, collapsing several times but nonetheless able to
leave under his own power.
After spending the ensuing several days essentially
bedridden due to pain, Hajdusek began to experience blurred vision
and nausea. He was diagnosed with various ailments, including
rhabdomyolysis, a condition caused when muscle tissue dies from
extreme overuse and the dead tissue enters the bloodstream. This
has left him permanently disabled.
Hajdusek sued the United States in the District of New
Hampshire, alleging that Mikelo's actions had caused his physical
injuries and disabilities, that these actions were negligent, and
that pursuant to the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b)(1), he was entitled to damages. The United States moved
to dismiss on the ground that Hajdusek's claim stemmed from "the
performance of a discretionary function," and since the United
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States has not waived sovereign immunity for such claims, the
district court lacked subject matter jurisdiction. The district
court agreed with the government and dismissed the case. This
appeal followed.
II.
The FTCA serves as a limited waiver of sovereign immunity
and provides that federal courts:
shall have exclusive jurisdiction of civil
actions on claims against the United States,
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 Government . . . 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). Central to this appeal is an exception to
this provision, removing from the district courts' jurisdiction
"[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." Id. § 2680(a).
In evaluating a claim under the FTCA, a court must therefore
determine whether the claim is based on a discretionary function
as contemplated by section 2680; if so, the case must be dismissed
for want of jurisdiction. We review such dismissals de novo.
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Evans v. United States, 876 F.3d 375, 381 (1st Cir. 2017), petition
for cert. filed, (U.S. May 4, 2018) (No. 17-1516).
In conducting the discretionary function inquiry, we use
a "familiar analytic framework." Shansky v. United States, 164
F.3d 688, 690 (1st Cir. 1999). First, we "must identify the
conduct that allegedly caused the harm." Id. at 690–91. Second,
we must ask "whether this conduct is of the nature and quality
that Congress, in crafting the discretionary function exception,
sought to shelter from tort liability." Id. at 691. The latter
analysis "encompasses two questions: Is the conduct itself
discretionary? If so, is the discretion susceptible to policy-
related judgments?" Id. The word "susceptible" is critical here;
we do not ask whether the alleged federal tortfeasor was in fact
motivated by a policy concern, but only whether the decision in
question was of the type that policy analysis could inform. See
United States v. Gaubert, 499 U.S. 315, 325 (1991) ("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."). In addition, the fact that a government
official exercises discretion pursuant to regulatory authority
creates a presumption that this discretion was susceptible to
policy analysis and thus protected. Id. at 324.
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Here, the parties are in agreement that the conduct that
allegedly caused the harm was Mikelo's decision to subject Hajdusek
to the especially arduous workout on the day in question. We
therefore turn to the analysis of whether that decision was in
fact discretionary, and whether the discretion involved was
susceptible to policy analysis.
We have little trouble answering the first question in
the affirmative. Guidance from the Marine Corps gives Marines in
charge of the DEP only general instructions concerning how physical
training programs should run. For example, Marines are instructed
that they should concentrate training activities on "upper body
strength," "abdominal strength," and "aerobic training," and the
guidance suggests running and hikes, among other things, as
activities that work toward these goals. The Marine Corps does
not dictate such details as how often physical training should
occur, of what exercises it should consist, how long it should
last, and how intense it should be. These decisions are left to
the judgment of the individual Marines in charge of administering
the DEP. In short, Mikelo exercised discretion in his choice of
an exercise regimen for Hajdusek.
That brings us to the second, and in this matter, more
complicated, phase of the analysis: We must decide whether the
discretion Mikelo exercised was susceptible to policy analysis.
As we have previously recognized, answering this question requires
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a case-by-case approach, which has, admittedly, "led to some
disarray." Shansky, 164 F.3d at 693 (comparing a variety of FTCA
discretionary function cases and noting divergent results). Both
Hajdusek and the government proffer case law ostensibly supporting
their respective points of view, often relying on the same cases.
For example, both parties rely on Shansky. In that case, we noted
that there was a distinction between "a professional assessment
undertaken pursuant to a policy of settled priorities," which is
not shielded by the discretionary function exception, and "a fully
discretionary judgment that balances incommensurable values in
order to establish those priorities," which is. Id. at 694. We
held that the National Park Service's decision not to place a
handrail and warning signs at a particular facility was shielded
by the discretionary function exception, because it required a
balancing of safety and aesthetic considerations. Id. at 693. We
also noted, however, that "[w]e do not suggest that any conceivable
policy justification will suffice to prime the discretionary
function pump." Id. at 692–93.
Hajdusek invokes Shansky in arguing that Mikelo's
decision was nothing more than a professional judgment done
negligently. In his view, the Marine Corps itself settled all
policy priorities, and Mikelo's actions were mere implementation.
He contends that "no policy was served or implicated in ruining a
potential recruit, let alone disciplining someone who policy
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declared was not to be subjected to military-type discipline." By
contrast, the government argues that Mikelo's decision was
informed by the need to balance a variety of policy priorities,
such as preparing poolees for the daunting mental and physical
challenges of basic training, preventing attrition, and using
existing poolees to generate new recruits. In the government's
view, this decision is analogous to the ones at issue in Fothergill
v. United States, 566 F.3d 248 (1st Cir. 2009). There, we held
that decisions "about which reasonable persons can differ" and
which are "informed by a need to balance concerns about a myriad
of [policy] factors" are protected by the discretionary function
exception. Id. at 253.
As Shansky makes clear, deciding whether a government
agent's action is susceptible to policy analysis is often
challenging, and this case is no exception. However, based upon
the record as a whole, we conclude that the government has the
better of the argument. Determining just how hard a potential
Marine should exercise, and whether, for example, he should do so
for 120 or 90 minutes, calls for weighing the policy goals that
are furthered by strenuous, even exhaustive exercise against the
goals of avoiding attrition through injury or otherwise. Work the
poolees too much, and the Corps loses potential new members; work
them too little, and preparedness and discipline might suffer. We
doubt that Congress intended judges to dictate this balance,
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especially given that judges would only be reviewing claims of
error in one direction. See Richard H. Seamon, Causation and the
Discretionary Function Exception to the Federal Tort Claims Act,
30 U.C. Davis L. Rev. 691, 703 (1997) (discussing the purpose of
the exception and collecting cases).
Hajdusek observes that Marine Corps guidance documents
relating to the DEP suggest that the government may be liable for
injuries occurring during certain "high-risk" activities,
suggesting that these regulations support a finding that the FTCA
applies to Marine Corps actions such as those giving rise to this
matter. This fact does not save his case, however, for two
reasons. First, sovereign immunity waivers such as the FTCA are
"strictly construed in favor of the government." Gordo-González
v. United States, 873 F.3d 32, 35 (1st Cir. 2017). Because the
decisions involved here -- decisions concerning the day-to-day
management of a military training program, albeit one not aimed at
active duty troops -- are of the type typically protected by
sovereign immunity, we are unable to find a waiver by a mere
implication in guidance documents. Second, the relevant guidance
seems to pertain to activities that are high-risk by their nature
(such as firing weapons or rope climbing), rather than physical
exercise rendered dangerous only by its marginal duration and
intensity. So even if we were to view the guidance as indicating
a waiver of sovereign immunity for claims based on injuries
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resulting from certain activities, it is not at all clear that
negligent supervision of exercise would be covered by such a
waiver.
Hajdusek also invokes Justice Scalia's concurrence in
Gaubert for the proposition that whether an allegedly negligent
decision occurred at the "operational" level versus the "planning
or policy" level is relevant to whether it is shielded by the
discretionary function exception. This argument fails, again for
two independent reasons. First, Justice Scalia's concurrence was
just that: a concurrence. The controlling opinion in Gaubert makes
clear that simply because an action takes place at an "operational"
level does not mean that it cannot be shielded by the discretionary
function exception.1 499 U.S. at 326. Second, even Justice
Scalia's preferred analysis does not compel a finding in favor of
Hajdusek. Justice Scalia emphasized that in his view, the proper
analysis focuses not on whether the government agent's decision
could be informed by policy analysis at some level, but whether
the agent's job entailed performing that analysis. Thus, "[t]he
dock foreman's decision to store bags of fertilizer in a highly
compact fashion is not protected by this exception because, even
1 We note that as of today, a petition for certiorari is
pending in Evans, urging the Supreme Court to adopt Justice
Scalia's concurrence as the new standard for adjudicating the
discretionary function exception. See Petition for Writ of
Certiorari, Evans v. United States (No. 17-1516).
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if he carefully calculated considerations of cost to the Government
vs. safety, it was not his responsibility to ponder such things;
the Secretary of Agriculture's decision to the same effect is
protected, because weighing those considerations is his task."
Id. at 335–36 (Scalia, J., concurring in part and concurring in
the judgment). Here, Mikelo's task, as the Marine supervising
Hajdusek and his fellow poolees, included weighing considerations
such as adequate preparation of poolees and attrition avoidance in
designing a workout program. Accordingly, even if we were to view
Justice Scalia's concurrence as controlling, the result here would
not change.
Threaded throughout Hajdusek's arguments is a concern
that if the government prevails, the military will have a license
to behave unreasonably in its interactions with individuals who,
although military-adjacent, are not active-duty members of the
military able to access Department of Defense or Veterans Affairs
care when injured. In Hajdusek's view, a ruling for the government
has the practical effect of creating a world where individuals can
be injured by negligent military actors and have no recourse, and
the military will have no incentive to give due weight to the risk
of serious injury. In the face of this concern, we emphasize that
our decision today is, as all FTCA discretionary function exception
cases must be, cabined to the record before us. As the government
conceded at oral argument, certain decisions by government actors,
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though nominally discretionary, may pass a threshold of objective
unreasonableness such that no reasonable observer would see them
as susceptible to policy analysis. We do not rule out the
possibility that a Marine running a pool program could make some
decision falling into this category. For example, if a Marine
decided that the only way to toughen up poolees was to have them
jump off a twenty-foot high cliff onto concrete, we would have no
qualms holding that even though a desire to serve Marine Corps
goals of preparing poolees for basic training may have animated
the decision, it was simply not a decision that in any objectively
reasonable sense could be said to be informed by policy analysis.
In that case, the unreasonableness of the activity would be clearly
apparent ex ante to any reasonable observer. And such a decision
would not constitute a weighing of safety concerns versus intensity
concerns; it would amount to a complete rejection of the former in
favor of the latter, contrary to guidance from the Marines.
Returning from the hypothetical to the actual, however,
we recognize that Hajdusek does not allege anything close to the
situation described above. The complaint itself only alleges that
Mikelo exercised Hajdusek unreasonably hard. It does not allege
facts plausibly supporting an inference that a Marine supervising
the activity would have reason to know ex ante that the exercise
was sufficiently likely to cause serious injury as to deem it the
product of a rejection of a policy goal rather than a balancing of
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such goals. The additional materials submitted by Hajdusek offer
little more. At most, they support a theory that Mikelo's
motivation was to discipline Hajdusek. But even assuming this to
be true, the use of arduous physical exercise to discipline an
individual for a perceived failing would seem to be an appropriate
tool of boot camp preparation, which is a primary goal of the DEP.
Latching on to the "punishment" theory, Hajdusek suggests that the
Marines in charge of the pool program have no authority to utilize
physical discipline on a poolee. However, nowhere in the guidance
documents is physical discipline explicitly prohibited. The best
language Hajdusek can offer is language from the guidance documents
instructing that Marines should not "establish a Drill Instructor
to recruit relationship" but rather should be "friendly but firm"
and "[s]trive for a relationship similar to that of a teacher and
a student." Marines must "make discretionary judgments about how
to apply concretely the aspirational goal embedded in th[is]
statement." Shansky, 164 F.3d at 691.
This language simply does not allow the inference of a
blanket "no physical discipline" rule. While the results in this
case are disturbing, one can easily imagine more run-of-the-mill
acts of physical discipline raising no eyebrows. If a poolee were
late to a physical training session and ordered to run a mile as
a penalty, we would not see that order as somehow establishing an
impermissible "Drill Instructor" relationship. Similarly, we
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would not find it so out-of-bounds as to go beyond the scope of
discretionary judgment. The facts alleged in this case paint a
picture of a workout that was unusually intense, perhaps even
unreasonably so, but not so objectively beyond the pale that it
could not have been informed by policy analysis. Accordingly,
though we acknowledge that there may be a line beyond which
discretionary decisions lose protection due to their patent
unreasonableness, the allegations here fall short of that line.
III.
Hajdusek's case is a sympathetic one. He attempted to
serve his country, was injured in that attempt, and now, due to
the quirk of his not-quite-Marine status, the services normally
available to injured servicemen and women are unavailable to him.
Nonetheless, Congress has decreed that the federal courts cannot
use tort claims to second-guess the discretionary choices of
federal agents who implement the government's policy choices. In
this specific instance, Congress's command means that we cannot
second-guess the decision of a Marine about how hard to work out
a potential recruit at the end of a training program, at least in
the absence of a patent abandonment of any effort to balance Marine
Corps policy goals. We therefore affirm the judgment of dismissal.
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