RAYNU CLARK, Mother of Tyler M. Gergler v. Secretary of the United States Navy

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-1784
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RAYNU CLARK, Mother of Tyler M. Gergler;
JASON R. GERGLER, Father and Executor
of the Estate of Tyler M. Gergler,
Appellants
v.
SECRETARY OF THE UNITED STATES NAVY;
UNITED STATES OF AMERICA
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2:22-cv-02586)
District Judge: Honorable Katharine S. Hayden
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Argued: March 13, 2024
Before: BIBAS, MONTGOMERY-REEVES, and ROTH,
Circuit Judges
(Filed: May 23, 2024)
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David P. Sheldon [ARGUED]
100 M Street SE, Suite 600
Washington, DC 20003
Counsel for Appellants
Lowell V. Sturgill, Jr. [ARGUED]
UNITED STATES DEPARTMENT OF JUSTICE
CIVIL DIVISION
950 Pennsylvania Avenue NW, Room 7241
Washington, DC 20530
Counsel for Appellees
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Tragedy does not trump sovereign immunity. Recruit Tyler
Gergler died in a car accident on his way to a Marine Corps
event. His parents blame the Marines for urging him to drive
even though he was ill. But because the Marine sergeant’s ac-
tions were within his discretion to prepare Gergler for basic
training, no waiver of sovereign immunity applies. We will
thus affirm.
I. TYLER GERGLER’S TRAGIC DEATH
Gergler wanted to be a Marine, so he joined the Marine
Corps’ Delayed Entry Program. This program prepares people
“both physically and mentally” for basic training. App. 45. His
recruiter for the program was Sergeant Mitchell Castner.

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Near the end of Gergler’s stint in the program, he had to
attend a social event for recruits. But because he had fallen ill,
he told Castner that he was too sick to drive. As Castner knew,
Gergler lived about four hours from the recruiting station.
Castner pressured him to go anyway, saying that the staff
sergeant might kick him out of the program if he did not show
up. Ultimately, Gergler decided to make the drive. On the way,
he crashed his car and died.
After Gergler’s parents exhausted their administrative
claim, they sued the Marine Corps. They claimed that their son
had died because Castner had negligently pressured him to
drive while he was too sick to do so, a tort under New Jersey
law. Because Castner’s actions were within the scope of his
Marine Corps employment, they argued, the Government was
liable.
The Government moved to dismiss. Though the United
States has waived sovereign immunity for many claims, it has
not done so for government agents’ discretionary acts.
28 U.S.C. § 2680(a). When Castner pressured Gergler to drive,
the Government argued, he was acting as Gergler’s recruiter,
a discretionary function. Thus, sovereign immunity bars this suit.
The District Court agreed. It dismissed the suit on the
pleadings because Castner had discretion and had been exer-
cising that discretion. Gergler’s parents now appeal. We review
facial motions to dismiss de novo, accepting the pleadings’
factual allegations as true. Schuchardt v. President of the U.S.,
839 F.3d 336, 344 (3d Cir. 2016).

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II. SOVEREIGN IMMUNITY BARS THIS SUIT
BECAUSE SERGEANT CASTNER ACTED WITHIN
HIS DISCRETIONARY FUNCTION
The United States and its agents enjoy sovereign immunity
from suit. United States v. Sherwood, 312 U.S. 584, 586 (1941)
(collecting cases). In the Federal Tort Claims Act, the Govern-
ment waived its immunity for its agents’ torts. 28 U.S.C.
§§ 2671–2680. But that waiver does not cover discretionary
functions—that is, when a claim arises from an agent’s “exer-
cise or performance” of “a discretionary function or duty …
whether or not the discretion involved be abused.” § 2680(a).
So such claims remain barred.
To invoke the discretionary-function exception, the Gov-
ernment must show two things: (1) its agent’s action “involve[d]
an element of judgment or choice” and (2) its agent’s judgment
was “of the kind that the … exception was designed to shield,”
meaning that it was “susceptible to policy analysis.” United
States v. Gaubert, 499 U.S. 315, 322–23, 325 (1991) (brackets
and internal quotation marks omitted). Though Gergler’s
parents forfeited any argument on the first prong, the Govern-
ment has satisfied both.
A. Castner had discretion to urge Gergler to attend the
event
First, the Government must show that the agent had discre-
tion to act. Once the Government does so, the plaintiff may
point to limits on that discretion. If a law, regulation, or policy
leaves the agent no meaningful choice, the exception does not
apply. Xi v. Haugen, 68 F.4th 824, 837–38 (3d Cir. 2023).

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Once the Government showed that it had discretion, Ger-
gler’s parents did not try to rebut that showing before the Dis-
trict Court. But on appeal, they raise a Marine Corps policy that
allegedly bound Castner. It requires program supervisors to tell
civilian recruits that events are optional. Yet at oral argument,
Gergler’s parents admitted that they had forfeited this argu-
ment. They also admitted that Castner had told Gergler that the
social event was optional. Plus, the policy applies only to phys-
ical events, not social gatherings like the one here. Because
Castner was not bound to follow a specific course of action, he
had discretion to urge Gergler to attend.
B. Castner’s discretion relates to his function of training
Marine recruits
Second, the Government must show that the agent’s func-
tion was discretionary. The claim must be “based upon the
exercise or performance” of an agent’s “discretionary function
or duty.” § 2680(a). We look to the agent’s duty and assess
what discretion he needed to do it. Berkovitz v. United States,
486 U.S. 531, 537 (1988). If we can analyze or debate an
agent’s function in policy terms, we presume that the exception
applies. S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329,
336 (3d Cir. 2012).
Castner’s function was to prepare civilians for Marine
Corps basic training. We can analyze that function in policy
terms. And reasonable minds can differ on how to toughen up
civilians for basic training. Gergler’s parents think that social
gatherings should not count as part of training. But the Marines
need to prepare recruits for both physical and mental hardships.
Social gatherings may cultivate camaraderie and create strong

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bonds among the recruits to help them withstand the trials
ahead. Interactions at such events can also reflect a recruit’s
drive and ability to work with others. At the very least, whether
and how to encourage attending social gatherings is a debatable
policy. That is enough to trigger the discretionary-function
exception.
C. No carve-out applies
Even so, Gergler’s parents try to avoid the exception in two
ways. First, they argue that Castner’s conduct was so egregious
that it goes beyond policy consideration. In support, they cite a
First Circuit dictum. That court suggested that some discretionary
actions might be so beyond the pale “that no reasonable observer
would see them as susceptible to policy analysis.” Hajdusek v.
United States, 895 F.3d 146, 152 (1st Cir. 2018).
We decline to adopt that suggestion. Sovereign immunity
is the rule. Any exception “must be unequivocally expressed”
and closely cabined to what the law permits. United States v.
Nordic Vill., Inc., 503 U.S. 30, 33–34 (1992) (internal quotation
marks omitted). Here, Congress barred liability for discretionary
functions “whether or not the discretion involved [is] abused.”
28 U.S.C. § 2680(a). We cannot rewrite this language to make
the Government liable for discretionary calls, even if they are
egregious.
Second, Gergler’s parents invoke a narrow carve-out for
easy precautions. We have held that when a government agent
fails to take “garden-variety remedial steps” to guard against a
“specific risk” that the government was aware of, the exception
does not apply. S.R.P., 676 F.3d at 338. But that carve-out
applies only to truly mundane problems, such as failures to

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install lights, stairways, or railings. Cestonaro v. United States,
211 F.3d 749, 755–56 (3d Cir. 2000); Gotha v. United States,
115 F.3d 176, 181 (3d Cir. 1997). And it seems hard to justify
under the language of the statute. S.R.P., 676 F.3d at 347–48
(Roth, J., concurring). So though we must recognize that excep-
tion, we will not extend it further.
* * * * *
Tyler Gergler’s death was a great loss. But the question
before the Court is whether the United States clearly and un-
equivocally waived sovereign immunity, not whether the Gov-
ernment’s alleged conduct was wrong. The United States is
immune from suit when its agents commit alleged torts within
the discretion accorded by their job function, and Sergeant
Castner’s actions were within his discretionary function of pre-
paring Marine recruits for training. So we must affirm.

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