Goad v. United States of America

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
STACY GOAD, as 	)
Personal Representative of the Estate 	)
of Larry D. Thompson, deceased, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-25-52-RAW-GLJ
)
UNITED STATES OF AMERICA, 	)
)
)
Defendant. 	)
REPORT AND RECOMMENDATION
This matter is before the Court on Defendant United States of America’s Motion to
Dismiss [Docket No. 20]. Plaintiff Stacy Goad, as personal representative of the Estate of
Larry 	D. 	Thompson 	(“Thompson”), 	sued 	the 	United 	States 	of 	America 	based 	on
circumstances surrounding and leading up to the death of Thompson out of an accident on
Lake Tenkiller in the Eastern District of Oklahoma. 	Defendant seeks dismissal of
Plaintiff’s claim. 	For the reasons set forth below, the undersigned Magistrate Judge
recommends that the United States of America’s Motion to Dismiss [Docket No. 20] be
GRANTED.
I. Background
The Amended Complaint alleges that in May 2023 Thompson was operating a
watercraft on Lake Tenkiller when it struck underwater object. Docket No. 18, p. 1, ¶ 5.
Plaintiff alleges the accident occurred due to Defendant’s negligence and that Defendant
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knew or should have been aware of the hidden underwater object but did not remove or
warn. 	Id., pp. 1-2, ¶ 5. 	Plaintiff further alleges that there were buoys in the water as
provided under Defendant’s Shoreline Management Plan, but not at the site where the
underwater object was located, and that Defendant removed the object after the incident.
Id., p.2, ¶¶ 9-10.
Plaintiff alleges that all conditions precedent to this action have occurred, and makes
a claim pursuant to the Federal Tort Claims Act (“FTCA”), claiming Defendant’s liability
through the FTCA’s incorporation of Oklahoma tort law. 	Id., p. 1, ¶¶ 2-4 & p. 3, ¶ 12.
Plaintiff further alleges that Defendant is not protected by Oklahoma law or the federal
discretionary function exception. Id., p. 3, ¶ 11.
II. Procedural History
Plaintiff filed her original Complaint on February 25, 2025, against Defendant. See
Docket Nos. 1-2. 	Shortly thereafter, the Court referred this case to the undersigned
Magistrate Judge for all pretrial and discovery matters, including dispositive motions, in
accordance with jurisdiction pursuant to 28 U.S.C. § 636(b). See Docket No. 9. Defendant
moved to dismiss the original Complaint on April 29, 2025. 	See Docket No. 14. 	Upon
review of the motion once it became fully ripe, the undersigned Magistrate Judge invited
Plaintiff to amend her Complaint by Friday, June 20, 2025. Docket No. 17. Plaintiff did
so and Defendant renewed its Motion to Dismiss. Docket Nos. 18, 20. In her Amended
Complaint, Plaintiff alleges negligence resulting in death pursuant to the FTCA as to
Defendant. The Motion to Dismiss is now fully ripe. Docket Nos. 21-22.
III. Analysis
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“The FTCA waives sovereign immunity for actions against the United States
resulting from injuries caused by the negligent acts of governmental employees while
acting in the scope of their employment. The United States can be held liable in the same
manner and to the same extent as a private individual under like circumstances.” Kale v.
United States, 2009 WL 10733504, at *1 (E.D. Okla. Apr. 14, 2009) (quotation omitted)
(citing 28 U.S.C. §§ 28 U.S.C. § 1346(b)(1) & 2674). 	Defendant moves to dismiss
Plaintiff’s First Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject matter jurisdiction. Defendant contends that Plaintiff’s claim is barred by
the discretionary function exception of the FTCA. Specifically, Defendant contends
Plaintiff failed to specify a federal statute, regulation, or policy an employee or employees
allegedly violated, and that the applicable Shoreline Management Plan in place did not
require 	specific 	conduct 	from 	Defendant. 	Alternatively, 	Defendant 	contends 	the
Government is immune from suit under the Oklahoma Recreational Use Statute (“ORUS”),
76 Okla. Stat. § 10.1. Plaintiff asserts that consideration under Rule 12(b)(1) is premature
and these issues should be resolved at the summary judgment stage. 	Further, Plaintiff
responds that neither the discretionary function exception nor the ORUS bar the claim.
I. 	Legal Standard.
A motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1)
“generally take[s] one of two forms: (1) a facial attack on the sufficiency of the complaint’s
allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which
subject matter jurisdiction is based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir.
2002). 	When jurisdiction is challenged through a facial attack, the Court considers the
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allegations in the complaint to be true. 	Id. 	When jurisdiction is challenged through a
factual attack, the Court “may not presume the truthfulness of the complaint’s factual
allegations” and “has wide discretion” to consider documentary and testimonial evidence.
Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995), abrogated in part on other
grounds by Cent. Green Co. v. United States, 531 U.S. 425 (2001)); see also Ratheal v.
United States, 2021 WL 3619902, at *3 (10th Cir. Aug. 16, 2021) (“[W]hether a motion to
dismiss must be converted to a motion for summary judgment depends on whether
resolution of the jurisdictional question requires resolution of an aspect of the substantive
claim.”) (quotation omitted). 	Either way, the burden of establishing subject matter
jurisdiction is on the party asserting it; here, that is Plaintiff. See Pueblo of Jemez v. United
States, 790 F.3d 1143, 1151 (10th Cir. 2015).
Defendant asks the Court to consider documents outside the First Amended
Complaint in support of the Motion to Dismiss that do not require resolution of the
underlying claim, as a factual attack on subject matter jurisdiction. 	In this context, it is
important to note that “‘[a] court lacking jurisdiction cannot render judgment but must
dismiss the cause at any stage of the proceedings in which it becomes apparent that
jurisdiction is lacking.’” 	Pueblo of Jemez, 790 F.3d at 1151 (quoting Full Life Hospice,
LLC v. Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013)). “Because the sovereign may not
be sued without its consent, plaintiffs cannot proceed without establishing that the United
States has agreed to answer to their claims in court.” 	Sydnes v. United States, 523 F.3d
1179, 1182-1183 (10th Cir. 2008) (citing United States v. Mitchell, 463 U.S. 206, 212
(1983)).
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Defendant’s basis for lack of subject matter jurisdiction is the discretionary function
exception, found at 28 U.S.C. § 2680(a) (The FTCA dos not apply to “[a]ny claim based
upon an act or omission of an employee of the Government, exercising due care, in the
execution of a statute or regulation, whether or not such statute or regulation be valid, or
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.”). As part of its factual attack on subject matter
jurisdiction, Defendant submitted the Tenkiller Lake Shoreline Management Plan (“SMP”)
as an exhibit to the pending motion. Defendant submits the SMP to challenge Plaintiff’s
allegation that the SMP required action by the government, and in support of its argument
that the discretionary function exception applies. Plaintiff’s Amended Complaint alleges
that the SMP “provided for Defendant to place navigational aids and safety buoys in the
lake to protect visitors’ lives and/or property and to inform of hazards that exist.” Docket
No. 18, p. 2, ¶ 10. 	The Amended Complaint does not, however, include the SMP as an
attachment, nor is its attachment a requirement.
Defendant incorrectly asserts that a motion to dismiss pursuant to Rule 12(b)(1)
cannot be converted into a motion for summary judgment. Although not the general rule,
where “the jurisdictional question is intertwined with the merits of the case[,]” Bell v.
United States, 127 F.3d 1226, 1228 (10th Cir. 1997) (quotation omitted), such as a
determination as to whether the FTCA excepts the Government’s actions from its sovereign
immunity waiver, it is “well-recognized” that a Rule 12(b)(1) motion must be converted to
one under Rule 12(b)(6), or for summary judgment. 	Id.; see also Franklin Sav. Corp. v.
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United States, 180 F.3d 1124, 1129-1130 (10th Cir. 1999) (“Whether the discretionary-
function exception applies is such a question.”); Awad v. United States, 807 Fed. Appx.
876, 878 (10th Cir. 2020) (“The judge correctly treated the government’s dispositive
motion as a motion for summary judgment under Rule 56.”) (citation omitted); Blackburn
v. United States, 2021 WL 3027979, at *2 (10th Cir. July 19, 2021) (“The district court
recognized that the Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction
could be converted to one under Rule 12(b)(6) for failure to state a claim on which relief
may be granted. 	We agree with that approach.”). 	“When subject matter jurisdiction is
dependent upon the same statute which provides the substantive claim in the case, the
jurisdictional claim and the merits are considered to be intertwined.” Wheeler v. Hurdman,
825 F.2d 257, 259 (10th Cir. 1987).
A court has wide discretion to allow affidavits, documents and even a limited
evidentiary hearing to resolve disputed jurisdictional facts under Rule
12(b)(1). 	Thus, converting a Rule 12(b)(1) motion to a Rule 56 or a Rule
12(b)(6) motion does not result in any significant difference in the way a
court will consider the motion. The primary difference is not in the
procedures used but in the effect the ruling will have upon the parties. 	A
dismissal under Rule 12(b)(1) is not on the merits, whereas a dismissal under
either Rule 56 or Rule 12(b)(6) is on the merits. See Fed.R.Civ.P. 41(b).
Thus, when jurisdictional questions are intertwined with the merits, courts
have held that the decision on the jurisdictional question ought to operate as
a decision on the merits. 	That is why a Rule 12(b)(1) motion should be
converted to a Rule 56 or a Rule 12(b)(6) motion when intertwining exists.
Daugherty v. United States, 212 F. Supp. 2d 1279, 1303 (N.D. Okla. 2002), affirmed, 73
Fed. Appx. 326 (10th Cir. 2003).
Although Plaintiff does not explicitly address whether the jurisdictional claim is
intertwined with the merits, she does so implicitly by providing a “Statement of Material
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Facts” in her Response brief and requesting the Court defer a decision until after discovery.
“‘The determination of whether the FTCA excepts the government’s actions from its
waiver of sovereign immunity involves both jurisdictional and merits issues.’” See Pringle
v. U.S., 208 F.3d 1220, 1223 (10th Cir. 2000) (quoting Bell, 127 F.3d at 1228). Because
the undersigned Magistrate Judge has considered matters outside of the pleadings in
making findings related to the pending motion, i.e., the SMP, Defendant’s motion is treated
as a motion for summary judgment under Fed. R. Civ. P. 56. See id. (“We will therefore
exercise our plenary power to treat the government’s motion to dismiss as a motion for
summary judgment. Our summary judgment standard of review requires us to determine
de novo whether there is any genuine disputed issue of material fact and whether the
prevailing party was entitled to judgment as a matter of law.”) (internal citations omitted).
“Plaintiff[] must prove more than negligence. [She] must also first prove that [her] claims
are not based upon actions immunized from liability under the FTCA’s discretionary
function exception, 18 U.S.C. § 2680(a).” 	Elder v. United States, 312 F.3d 1172, 1176
(10th Cir. 2002) (citation omitted). 	This Report and Recommendation serves as notice to
the parties of the motion’s conversion to one for summary judgment.
Summary judgment is appropriate if the record shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). 	A genuine issue of material fact exists when “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party must show
the absence of a genuine issue of material fact, see Celotex Corp. v. Catrett, 477 U.S. 317,
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325 (1986), with the evidence taken in the light most favorable to the non-moving party,
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). However, “a party asserting that
a fact cannot be or is genuinely disputed must support the assertion by . . . citing to
particular parts of materials in the record . . . or . . . showing that the materials cited do not
establish the absence or presence of a genuine dispute[.]” Fed. R. Civ. P. 56(c).
II. 	Discretionary Function Exception.
The FTCA allows for a limited waiver of sovereign immunity under certain
circumstances. 	The FTCA’s discretionary function exception “allows private parties to
bring civil suits against the United States for personal injury or death caused by the
negligence 	or 	wrongful 	conduct 	of 	government 	employees 	within 	the 	scope 	of
employment.” 	Ball v. United States, 967 F.3d 1072, 1075 (10th Cir. 2020); see also 28
U.S.C. § 1346(b)(1) (granting district courts exclusive jurisdiction on claims for money
damages for “death caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or employment, under
circumstances where the United States, if a private person, would be liable to the claim in
accordance with the law of the place where the act or omission occurred.”). 	Defendant,
through the U.S. Army Corps of Engineers, owns and operates Lake Tenkiller.
The Tenth Circuit looks to three overarching, or “guiding principles,” as to these
claims: “(1) that a waiver of sovereign immunity must be strictly construed, in terms of its
scope, in favor of the sovereign, (2) that [e]xceptions to the FTCA are to be narrowly
construed, and (3) that the party suing the government bears the burden to prove a waiver
of sovereign immunity.” 	Ohlsen v. United States, 998 F.3d 1143, 1154 (10th Cir. 2021)
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(citations and quotations omitted). The discretionary function exception of the FTCA is a
statutory exception to the FTCA’s waiver of sovereign immunity, which “reasserts the
government’s 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.’” Sydnes,
523 F.3d at 1183 (quoting 28 U.S.C. § 2680(a)). As directed in Ohlsen, the undersigned
Magistrate Judge narrowly construes the discretionary function exception in this case.
In determining whether the discretionary function exception applies, the Court must
apply the two-part test identified in United States v. Gaubert, 499 U.S. 315 (1991), and
Berkovitz v. United States, 486 U.S. 531 (1988). “Under [the Gaubert-Berkovitz] test, the
exception applies if (1) the act or omission on which the claim is based ‘involves an element
of judgment or choice’; and (2) ‘that judgment is of the kind that the discretionary function
exception was designed to shield.’” 	Miller v. United States, 992 F.3d 878, 885 (9th Cir.
2021) (quoting Berkovitz, 486 U.S. at 536; Gaubert, 499 U.S. at 322-323). 	The Tenth
Circuit approaches step one as follows: 	“First, we ‘determine whether the challenged
conduct ‘involves an element of judgment or choice,’ in which case it is discretionary and
falls within the language of the exception, or whether it involves ‘a federal statute,
regulation, or policy that specifically prescribes a course of action for an employee to
follow,’ in which case the exception does not apply.’” 	Ball, 967 F.3d at 1076 (10th Cir.
2020) (emphasis added) (quoting Kiehn v. United States, 984 F.2d 1100, 1102 (10th Cir.
1993) (quoting Berkovitz, 486 U.S. at 536)). “If the conduct was discretionary, we move
to the second step and ask ‘whether that judgment is the kind that the discretionary function
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exception was designed to shield.’” 	Id. (quoting Berkovitz, 486 U.S. at 536). 	“If both
elements are met, the governmental conduct is protected as a discretionary function, and
sovereign immunity bars a claim that involves such conduct. In other words, if a plaintiff
can establish that either element is not met, the plaintiff may proceed because the exception
does not apply.” Sosa v. United States, 2022 WL 3099101, at *4 (D. Colo. June 21, 2022),
report and recommendation adopted sub nom. Sosa v. USA, 2022 WL 17547939 (D. Colo.
Aug. 1, 2022) (quotation omitted); see also Ball, 967 F.3d at 1076 (“[I]f the conduct
‘implicates the exercise of a policy judgment of a social, economic, or political nature,’ the
discretionary-function exception shields the government from liability.”) (quoting Duke v.
Dept. of Agric., 131 F.3d 1407, 1411 (10th Cir. 1997)).
At the first step, Defendant focuses on Plaintiff’s failure to point to a federal policy
statute, or regulation as determinative. 	It is true that any such violation must be both
“‘specific and mandatory.’” Elder, 312 F.3d at 1177 (quoting Aragon v. United States, 146
F.3d 819, 823 (10th Cir. 1998)). Plaintiff concedes this point when she contends discovery
“may inform” both prongs of the two-step analysis but offers no further argument. 	See
Docket No. 21, p. 3. 	While Plaintiff’s Amended Complaint alleges the SMP “provide[s]
for Defendant to place navigational aids and safety buoys in the lake to protect visitors’
lives and/or property and to inform of hazards that exist,” Docket No. 18, p. 2, ¶ 10,
Plaintiff makes no allegation in the Amended Complaint that any of those requirements are
“specific and mandatory.”
The relevant language of the SMP is found in Paragraph 5-4, Tit. 5(i) “Buoys,”
which states,
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The Corps of Engineers will place navigational aids and safety buoys in the
lake for the purpose of protecting lake visitors’ lives and/or property and to
inform the using public of waterway restrictions or hazards that may exist on
the lake. Natural hazards are not normally marked.
Docket No. 20, Ex. 1, p. 16. The Oklahoma Marine Investigation Report, also submitted
by Defendant, indicates that the decedent’s boat struck a log in the water. Id, Ex. 2, p. 11.
Defendant therefore contends that whether a log in the water constitutes a natural hazard,
and whether it should have been marked by a buoy, are inherently discretionary decisions
based on the SMP. Plaintiff disputes this conclusion, contending without citation that the
use of “will” is an imperative identical to “shall,” rather than a discretionary word akin to
“may.” 	Plaintiff likewise contends that a log in the water does not qualify as a natural
hazard, but a transient one, such that factual development in discovery is required to
determine how the log got there.
Black’s Law Dictionary defines “will” as “1. [w]ish; desire; choice <employment
at will>.” Black’s Law Dictionary (12th ed. 2024) (emphasis added). By definition, then,
the language on the face of the SMP thus appears to state that the policy allows for
discretion with regard to placement of buoys. 	Furthermore, the SMP does not define
“natural hazards” 	and 	has no provision 	regarding “transient hazards,” nor does it
distinguish between permanent and temporary hazards. 	In other words, Plaintiff fails to
identify a federal statute, regulation, or policy that is specific and mandatory.
The undersigned Magistrate Judge therefore agrees with Defendant that Plaintiff has
not identified a federal statute, regulation, or policy that is both specific and mandatory in
constraining discretion in the context of this case. Sydnes, 523 F.3d at 1185 (“[T]he burden
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under our case law to present evidence of a discretion-constraining regulation or policy
resides with the plaintiffs.”) (citing Aragon, 146 F.3d at 823 (“The discretionary function
exception poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately
meet as part of h[er] overall burden to establish subject matter jurisdiction.”) (internal
quotations omitted)); Daigle v. Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992)
(holding plaintiffs must cite specific regulations the government is alleged to have
violated)). Accordingly, the undersigned Magistrate Judge finds that Plaintiff establishes
this first step because the employee decisions regarding whether and how to place
navigational aids or buoys to warn of debris or underwater objects as set out in the SMP
by their nature involved an element of judgment and choice. 	See, e.g., A.M. v. United
States, 2020 WL 6276021, at *5 (S.D. Cal. Oct. 23, 2020) (“Defendant is correct—for SYH
to have no discretion, its actions must be governed by a specific federal statute, regulation,
or policy.”).
The analysis thus proceeds to the second step. See Ball, 967 F.3d at 1076 (“If the
conduct was discretionary, we move to the second step and ask whether that judgment is
the kind that the discretionary function exception was designed to shield.”) (quotation
omitted). “Even though they fail under Berkovitz’s first step, plaintiffs may still overcome
the discretionary function exception by demonstrating, pursuant to Berkovitz’s second step,
that ‘the nature of the actions taken’ does not ‘implicate public policy concerns, or [is not]
‘susceptible to policy analysis.’” 	Sydnes, 523 F.3d at 1185 (quoting Harrell v. United
States, 443 F.3d 1231, 1236 (10th Cir. 2006)). 	“As the Supreme Court said in Gaubert,
we presume that a government agency’s acts are grounded in policy when no statute,
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regulation, or policy sets forth a required course of conduct; the challenger must allege
facts showing otherwise.” Ball, 967 F.3d at 1079. “[T]he 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.”
Gaubert, 499 U.S. at 325. 	Accordingly, “[h]aving already determined that the first
Berkovitz prong was met, we presume that the [Government’s] decision-making was
policy-based unless Plaintiffs direct us to facts to the contrary.” Ball, 967 F.3d at 1079.
“Nor does the discretionary function exception turn on whether the government’s
conduct was negligent or wrong.” 	Binion v. United States, 2014 WL 5780713, at *4 (D.
Colo. Oct. 31, 2014) (citing Duke, 131 F.3d at 1410). 	“Rather than ‘ask[ing] whether
policy analysis is the actual reason for the decision in question,’ we ask ‘categorically
(rather than case specifically) whether the kind of conduct at issue can be based on policy
concerns.’” Ball, 967 F.3d at 1076 (quoting Sydnes, 523 F.3d at 1185). The Tenth Circuit
acknowledged that “nearly every governmental action is, to some extent, subject to policy
analysis[,]” Duke, 131 F.3d at 1410, so clarified that “[w]e must ask if the decision or
nondecision implicates the exercise of a policy judgment of a social, economic or political
nature.” 	Id. at 1411; see also Weiss v. United States, 787 F.2d 518, 523-524 (10th Cir.
1986) (Because “[t]he exercise of discretion by Government employees does not always
fall within the discretionary function exception[,]” “the discretionary act must involve
‘governmental discretion.’”) (quoting Jackson v. Kelly, 557 F.2d 735, 338 (10th Cir.
1986)).
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“Application of Berkovitz’s second prong does not require proof of the thought
processes of the pertinent decisionmakers.” Elder, 312 F.3d at 1182. The inquiry here is
therefore whether Defendant’s decisions about warning or guarding against the dangers
posed by underwater hazards implicate protected policy judgments. 	See, e.g., id. 	And
courts must also keep in mind that “[t]he FTCA forbids courts from assuming a policy-
making role through the adjudication of tort claims.” Ball, 967 F.3d at 1082.
Notably, “the term specific hazard, although it can be factually descriptive, does not
and, if we are to comply with Supreme Court precedent, cannot change the analysis of
when the discretionary-function exception applies.” 	Id. at 1081. 	Plaintiff alleges that
Defendant “was or should have been aware” of the underwater object. Docket No. 18, pp.
1-2, ¶ 5. At best, this is conclusory and does not support a finding of actual prior knowledge
of the underwater log. 	See, e.g., Snider v. U.S. ex rel., U.S. Army Corps of Eng’rs, 2013
WL 3923599, at *4 (W.D. Okla. July 29, 2013) (“Plaintiffs make an allegation in the First
Amended Complaint as to defendant’s ‘prior knowledge of a hazardous tree,’ see, ¶ 2, but
that allegation is conclusory and disregarded because the complaint provides no facts to
support that assertion.”). As noted above, the undersigned Magistrate Judge also notes that
the second prong does not assess whether a specific action was negligent but whether the
conduct in general was grounded in a policy decision. 	Furthermore, the cases cited by
Plaintiffs both in Ball and in the present case, do not reject
the 	proposition 	that 	the 	discretionary-function 	exception 	protects
government decisions ‘grounded in social, economic, and political policy.”
Berkovitz, 486 U.S. at 536-537; see Duke, 131 F.3d at 1409 (quoting
Berkovitz); Boyd [v. United States ex rel. U.S. Army, Corps of Engineers, 881
F.2d 895, 897 (10th Cir. 1989) (same)]; Smith [v. United States, 546 F.2d
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872, 877 (10th Cir. 1976)] (predating Berkovitz but recognizing presence of
policy judgments as dispositive issue in deciding whether exercise of
discretion is protected by discretionary-function exception). 	They simply
held that there were no such policy judgments behind the failures in those
cases. See Duke, 131 F.3d at 1412; Boyd, 881 F.2d at 898; Smith, 546 F.2d
at 877.
Ball, 967 F.3d at 1081. 	The Court’s parenthetical comment after the above explanation
notes that many of the cases Plaintiff cites pre-date Gaubert and therefore might have had
different conclusions if decided more recently: “(We should note, however, that perhaps
Smith and Boyd, which were decided before Gaubert, would have been decided
differently if they had applied the Gaubert presumption that discretionary decisions
of government officials are grounded in the requisite policy.)” 	Id. at 1081-1082
(emphasis added).
Upon due consideration, the undersigned Magistrate Judge finds that the conduct
complained of by Plaintiff—failing to place a buoy to warn of an underwater hazard, i.e.,
log, located on Lake Tenkiller—is the sort of conduct of which the discretionary function
exception was designed to shield because decisions involving the placement of buoys can
quite clearly be policy-driven matters. 	See Gaubert, 499 U.S. at 324 (“[I]f a regulation
allows the employee discretion, the very existence of the regulation creates a strong
presumption that a discretionary act authorized by the regulation involves consideration of
the same policies which led to the promulgation of the regulations. 	When established
governmental policy, as expressed or implied by statute, regulation, or agency guidelines,
allows a Government agent to exercise discretion, it must be presumed that the agent's acts
are grounded in policy when exercising that discretion.”). This has a clear connection to
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social, policy, and economic considerations. See Snider, 2013 WL 3923599, at *6-7 (W.D.
Okla. July 29, 2013) (“Faced with limited resources and unlimited natural hazards,
defendant must make a public policy determination as to which dangers merit the intrusion
of a sign.” Furthermore, “[w]holly apart from the matters discussed above, the court also
notes that, unlike Duke and the cases cited by it, including Boyd, in the case at bar the
defendant was not aware of a specific risk of harm.”); see also Wilson v. United States, 940
F. Supp. 286, 290-291 (D. Or. 1996), affirmed, 133 F.3d 931 (9th Cir. 1998) (“The Forest
Service had the discretion to clear submerged debris from South Twin Lake. This judgment
exercised by the Forest Service is grounded in social, economic and political policy.”). The
undersigned Magistrate Judge therefore finds Plaintiff does not allege sufficient facts to
overcome the presumption that Defendant’s actions were grounded in policy. 	Having
concluded that the second prong has been satisfied, the undersigned Magistrate Judge finds
that both prongs of the discretionary function exception are met and the Government is
thus entitled to the protection of the discretionary function exception.
Because the discretionary function exception applies, the undersigned Magistrate
Judge declines to consider the application of Oklahoma’s Recreational Land Use Act, 76
Okla. Stat. § 10.1. “When the discretionary function exception applies, it applies regardless
of whether the discretionary acts themselves constitute actionable negligence.” Elder, 312
F.3d at 1184 (citation omitted).
CONCLUSION
In sum, the undersigned Magistrate Judge finds that the United States of America’s
Motion to Dismiss [Docket No. 20] should be converted to a motion for summary judgment
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pursuant to Rule 56, and further finds that the motion should be GRANTED and the case
dismissed with prejudice. 	Any objections to this Report and Recommendation must be
filed within fourteen days. 	See 18 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 	Any
objections and response shall each be limited to 10 pages and a reply is permitted only with
leave of court upon a showing of good cause.
IT IS SO ORDERED this 17th day of November, 2025.
GERALD L. JACKSON
UNITED STATES MAGISTRATE JUDGE
6:25-cv-00052-RAW-GLJ Document 25 Filed in ED/OK on 11/17/25 Page 17 of 17