United States Court of Appeals For the First Circuit

No. 20-1523

A. MICHAEL DAVALLOU,

Plaintiff, Appellant,

v.

UNITED STATES,

Defendant, Appellee,

ANCIENT AND HONORABLE ARTILLERY COMPANY OF MASSACHUSETTS; EMERY A. MADDOCKS, JR.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Lynch, Kayatta, and Barron, Circuit Judges.

Scott E. Charnas, with whom Charnas Law Firm, P.C., Thomas R. Murphy, Law Offices of Thomas R. Murphy, LLC, Kevin J. Powers, and Law Offices of Kevin J. Powers were on brief, for appellant. Thomas E. Kanwit, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee. May 25, 2021 KAYATTA, Circuit Judge. Michael Davallou alleges that

he suffered permanent hearing damage when the Massachusetts Army

National Guard (MANG) negligently fired military artillery "in

close proximity" to him while he walked through Boston Common. He

filed suit against the United States under the Federal Tort Claims

Act (FTCA),

(b), 2671–2680. The district court

dismissed the suit, finding that the United States was entitled to

sovereign immunity pursuant to the FTCA's so-called "discretionary

function exception." See

§ 2680(a). For the following

reasons, we affirm.1

I.

We recite the facts alleged in Davallou's complaint,

taking as true all well-pleaded facts and drawing all reasonable

inferences in Davallou's favor. See Fothergill v. United States,

(1st Cir. 2009). On June 1, 2015, the Ancient

and Honorable Artillery Company of Massachusetts (AHAC), a

historic military organization with no present-day military

functions, conducted its annual "Change of Command" ceremony, also

known as the "June Day" ceremony. AHAC "organized, directed,

arranged, supervised and controlled" the ceremony, as it had done

1 Given that we affirm the district court's application of the discretionary function exception, we do not address its alternative conclusion that the FTCA does not apply because a private individual would not be liable for the challenged conduct under like circumstances. See

.

- 3 - each year since at least 2010. As part of the annual ceremony,

AHAC "arranged for military artillery to be fired within Boston

Common [by MANG] . . . in the presence of members of the public."

In keeping with this tradition, MANG performed an artillery salute

during the June 2015 ceremony, firing blank rounds from howitzers

(a type of cannon). The noise produced by the howitzers caused

Davallou, who was walking on Boston Common at the time, to suffer

permanent hearing damage.

Davallou filed suit against the United States, alleging

that MANG negligently caused his hearing loss by failing to warn

him before firing the howitzers and by failing to ensure that he

remained at a safe distance from the howitzers.2 The government

moved to dismiss the suit pursuant to the doctrine of sovereign

immunity, arguing that Davallou's negligence claim arose out of

MANG members' "performance [of] . . . a discretionary function."

(a). The district court agreed and dismissed

Davallou's suit against the United States for lack of subject-

matter jurisdiction. Davallou appeals.

2 Davallou also brought negligence claims against AHAC and its Executive Secretary, Emery A. Maddocks, Jr., but later stipulated to their dismissal pursuant to a settlement agreement.

- 4 - II.

We review de novo the district court's dismissal for

lack of subject-matter jurisdiction. See Shansky v. United States,

(1st Cir. 1999). Federal courts lack subject-

matter jurisdiction over claims against the United States absent

a waiver of sovereign immunity. See Villanueva v. United States,

(1st Cir. 2011). The FTCA "waives the [federal]

government's sovereign immunity for certain torts committed by its

employees in the scope of their employment."3 Mahon v. United

States,

(1st Cir. 2014); see also

(b)(1). But that waiver does not extend to claims based

upon a government employee's exercise or failure to exercise a

"discretionary function." See Mahon,

;

(a). The pivotal question is whether Davallou's claim falls

within the scope of this "discretionary function exception." If

so, it must be dismissed for lack of subject-matter jurisdiction.

See Bolduc v. United States,

(1st Cir. 2005).

To determine whether the discretionary function

exception applies, we follow a "familiar analytic framework."

Shansky,

. First, we must "identify the conduct

that allegedly caused the harm."

at 690–91. Here, Davallou

focuses on two omissions by MANG: failing to issue a warning

3 The government concedes that MANG members were acting as federal employees at all times relevant to the complaint.

- 5 - before firing the howitzers and failing to ensure that bystanders

maintained a safe distance from the howitzers. Second, we must

ask whether that conduct is both "discretionary,"

, and

"susceptible to policy analysis,"

. Because no federal

statute, regulation, or policy dictated MANG's safety protocols

during the June Day ceremony, the parties agree that the challenged

conduct was discretionary. Davallou's claim therefore turns on

his contention that MANG's exercise of discretion under the

circumstances was not susceptible to policy analysis.

Although we employ a "case-by-case approach" when

evaluating whether challenged government conduct is susceptible to

policy analysis,

, several principles guide our inquiry.

First, the discretionary function exception is not limited to high-

level policymaking or planning functions. Rather, it can apply as

well to day-to-day operational decisions. United States v.

Gaubert,

(1991). Second, it does not matter

whether MANG consciously engaged in any analysis of any policy

considerations, see Shansky,

, or whether its

decision on how to proceed "was in fact motivated by a policy

concern," Hajdusek v. United States,

(1st Cir.

2018). Rather, we ask only whether "some plausible policy

justification could have undergirded" MANG's conduct. Shansky,

. Nor does it matter, for purposes of the

discretionary function exception, whether MANG's conduct was

- 6 - ultimately negligent: The exception shields the government from

liability for discretionary policy choices "whether or not the

discretion involved be abused." Evans v. United States,

(1st Cir. 2017) (quoting

(a)). Finally,

because the law presumes that government employees' discretionary

decisions do indeed involve policy judgments, Davallou bears the

burden of alleging facts that would support a finding that MANG's

exercise of discretion in this instance was not susceptible to

policy analysis. See Gaubert, 499 U.S. at 324–25 ("For a complaint

to survive a motion to dismiss [based on the discretionary function

exception], 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.").

Considering all the circumstances alleged, we conclude

that Davallou has not met this burden. Deciding how to handle

safety considerations at the annual June Day ceremony implicated

a number of competing values, including the efficient allocation

of resources, the historical and ceremonial functions of the event,

the public's ability to view the event, and the value of the event

as a military training or recruitment exercise. Cf. Mahon,

(applying the discretionary function exception to the

government's decision not to raise the railing height in a historic

building because it actually or potentially involved

considerations of efficiency, safety, aesthetics, and cost).

- 7 - Given that AHAC allegedly "organized, directed, arranged,

supervised and controlled" the June Day ceremony for years without

any prior report of injury, it is plausible that MANG could have

weighed the various policy considerations and favored the lower

cost and greater efficiency of relying on AHAC generally when it

came to safely managing spectators. Cf. Carroll v. United States,

(1st Cir. 2011) (applying the discretionary

function exception where the government ceded responsibility for

managing known safety risks to independent contractors); Wood v.

United States,

(1st Cir. 2002) (holding that the

"delegation of the responsibility for safety issues to the

contractor suggests that . . . the [Navy] had determined already

that in obtaining the 'best value' for the American taxpayer,

worker safety should be a primary concern of the contractor" rather

than the Navy).

One can imagine circumstances in which such policy

considerations could not plausibly have informed MANG's conduct.

Imagine, for example, that unprotected individuals were standing

an arm's length away from the howitzers as MANG prepared to fire.

With MANG thus on notice that AHAC's safety precautions were

failing and that spectators were in imminent danger, the

government's proffered policy justifications for firing the

howitzers "may be so far-fetched as to defy any plausible nexus

between the challenged conduct and the asserted justification."

- 8 - Shansky,

; accord Hajdusek,

(predicting that a decision to have Marine Corps recruits "jump

off a twenty-foot high cliff onto concrete" during training would

not be protected, as such a decision would "amount to a complete

rejection" of safety considerations).

Such cases, though, "invariably involve extreme

circumstances." Shansky,

. As in Hajdusek,

Davallou's complaint alleges no facts "supporting an inference

that [the defendant] would have [had] reason to know ex ante that

the [challenged conduct] 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 such goals."

. Rather,

the complaint alleges in conclusory terms that MANG fired artillery

in a ceremony organized and controlled by AHAC without first

issuing a warning or making a "reasonable effort to keep members

of the public including plaintiff a safe distance from said

artillery." In similarly vague terms, the complaint further

alleges that MANG fired that artillery "in close proximity to

civilians," including Davallou, even though "[t]he level of noise

and/or sonic waves produced by the firing of said military

artillery . . . was sufficient to cause tinnitus, permanent damage

to hearing, and other injury to human beings." We do not know

from the complaint where in the park the ceremony was held, how

close AHAC allowed the public (including Davallou) to get to the

- 9 - howitzers at the time of the artillery salute, or whether anyone

was even aware of Davallou's presence when the howitzers were

fired. We also do not know how far from the howitzers the public

would have had to stand in order to avoid any substantial risk of

hearing loss. Nor is there reason to believe that anyone else had

previously suffered injury as a result of AHAC's supervision of

the annual June Day ceremony. Without at least some such

averments, Davallou has not carried his burden of alleging facts

that could support a finding that MANG exhibited such a complete

disregard for public safety that its decisions could not have been

driven by policy analysis. See Gaubert, 499 U.S. at 324–25.

In arguing to the contrary, Davallou points to a line of

cases from the Ninth Circuit holding that a "decision not to warn

of a specific, known hazard for which the acting agency is

responsible is not the kind of broader social, economic or

political policy decision that the discretionary function

exception is intended to protect." Sutton v. Earles,

(9th Cir. 1994) (emphasis added); accord, e.g., Green v. United

States,

(9th Cir. 2011) (finding that the

discretionary function exception did not apply to the Forest

Service's failure to warn property owners of its decision to light

a backfire nearby). But none of the Ninth Circuit cases Davallou

relies on dealt with the policy consideration applicable here (the

advantages of relying on AHAC as before). And if we were to read

- 10 - those cases as broadly as Davallou does, they would place outside

the discretionary function exception all instances in which the

government knowingly creates a risk of injury without issuing a

warning, even if the risk is minimal and a particular type of

warning would undermine competing policy interests. Such a

sweeping approach is contrary to our precedents. We have

previously rejected the notion that "when safety becomes an issue,

all else must yield." Shansky,

(explaining that

"there is no principled basis for superimposing a generalized

'safety exception' upon the discretionary function defense").

Rather, as we have already explained, a "case-by-case approach is

required." Id.; accord Hajdusek,

.

Davallou falls back on the argument that MANG's conduct

was "not readily amenable to policy analysis" because it implicated

only "technical safety assessments conducted pursuant to prior

policy choices." Shansky,

; see also Berkovitz v.

United States,

(1988) (concluding that the

government's approval of an unsafe vaccine batch was not

susceptible to policy analysis because the government had failed

to follow already-settled scientific criteria for assessing

vaccine safety). In advancing this argument, he relies solely on

a training manual prepared by the U.S. Army Public Health Command,

entitled "Readiness through Hearing Loss Prevention," which

recognizes that firing a 155-millimeter howitzer creates a risk of

- 11 - hearing loss. But, unlike the vaccine safety standards in

Berkovitz, the training manual does not purport to establish

concrete safety criteria that account for any risk to public safety

or any of the other competing interests that MANG might have

considered in this instance. Rather, the manual simply explains

how noise can cause hearing loss, how service members using

military equipment can protect themselves from noise, and how

hearing loss can adversely affect readiness for combat. This sort

of general educational information does not remove MANG's conduct

in this case from the realm of policy decisions. Cf. Shuman v.

United States,

, 285–86, 293–94 (1st Cir. 1985)

(finding that the Navy's promulgation of advisory safety

guidelines for shipyards did not eliminate the Navy's discretion

to prioritize production over safety).

III.

This is a challenging case, and a sad one. Assuming

that his allegations are true, Davallou was simply taking a walk

through one of our country's most celebrated city parks when,

through no fault of his own, he was exposed to noise loud enough

to cause permanent hearing damage. Our federal government,

however, does not allow itself to be sued for its discretionary

decisions, even bad ones, so long as they are reasonably

susceptible to policy analysis. And on the facts alleged,

additional precautions were not so obviously needed that the

- 12 - decisions to proceed according to tradition and to leave the

management of spectators to AHAC fell outside the realm of possible

policy decisions. We therefore affirm the judgment of the district

court.

- 13 -