author: HENDRICKS, District Judge:

text:
    CHAMPION PRO CONSULTING GROUP, INC.; Carl E. Carey, Jr., Ph.D., Plaintiffs-Appellants, v. IMPACT SPORTS FOOTBALL, LLC; Mitchell Frankel; Tony Fleming; Marvin Austin, Defendants-Appellees, and Robert Quinn; Christina White, Defendants, and North Carolina Department Secretary of State, Third Party Defendant.
    No. 15-1899
    United States Court of Appeals, Fourth Circuit.
    Argued: October 27, 2016
    Decided: December 22, 2016

      ARGUED: Kevin James Dolley, James Carter Keaney, LAW OFFICES OF KEVIN J. DOLLEY, LLC, St. Louis, Missouri, for Appellants. Peter Robert Ginsberg, PETER R. GINSBERG LAW, LLC, New York, New York, for Appellees. ON BRIEF: Laura Spencer Garth, Mark J. Obermeyer, LAW OFFICES OF KEVIN J. DOLLEY, LLC, St. Louis, Missouri, for Appellants.
    Before WILKINSON and TRAXLER, Circuit Judges, and BRUCE H. HENDRICKS, United States District Judge for the District of South Carolina, sitting by designation.
   Affirmed by published opinion. Judge HENDRICKS wrote the opinion, in which Judge WILKINSON and Judge TRAXLER joined.

HENDRICKS, District Judge:

In December 2010, while a student at the University of North Carolina, Robert Quinn entered into a Standard Representation Agreement with Carl E. Carey, founder of Champion Pro Consulting Group, Inc. Carey thereby became Quinn’s sports agent and maintained hopes to obtain lucrative opportunities for Quinn with the National Football League (“NFL”). Eight months later, Quinn terminated his Agreement with Carey and hired Impact Sports Football to represent him instead. Shortly thereafter, Quinn signed a contract with the St. Louis Rams for $4,073,468 over his first four seasons, with a signing bonus of $5,362,585.

After filing two related actions in other jurisdictions, Plaintiffs filed the instant action against Impact Sports, Mitchell Frankel, Tony Fleming, and Marvin Austin, alleging principally that Impact Sports engaged in deceptive and unfair practices in violation of the North Carolina Unfair and Deceptive Practices Act (“UDTPA”) by their recruitment of Quinn. Following discovery, Plaintiffs moved to sanction Defendants for their alleged spoliation of evidence. After a hearing, the district court denied in part Plaintiffs’ motion for sanctions and granted Defendants’ motion for summary judgment on all of Plaintiffs’ claims. Because the Court finds that Defendants’ actions fall outside the scope of the UDTPA, we affirm.

I.

A.

Carey is a full-time associate professor at Lonestar College in Kingwood, Texas. He is also a National Football League Players Association (“NFLPA”) Contract Advisor and the founder of Champion Pro Consulting Group, located in Houston, Texas. In November 2010, Quinn contacted Carey about serving as his Contract Advis- or, after being introduced to Carey by a mutual Mend. Carey eventually met with Quinn and his family in North Carolina, and they signed a Standard Representation Agreement (“SRA”) on December 4, 2010. At the time Carey entered into the SRA with Quinn, he represented one other NFL player; Quinn was the first rookie whom he represented.

In addition to the SRA, Quinn and his father also entered a Financial Assistance Agreement (“FAA”) with Carey. The FAA provided for Carey’s paying Quinn and/or his father $125,000 in five (5) equal installments beginning December 4, 2010, and ending on June 1, 2011. The initial payment was made in the form of $5,000 in cash to Quinn and $20,000 in a check to his father at the time of signing the SRA The SRA did not mention the FAA and a copy of the FAA was not filed with the NFLPA. J.A. 180.

The NFL locked out its players from March 11 to July 25, 2011. During the lockout, the teams did not communicate with players and were not negotiating NFL Player Contracts. In addition, the NFLPA discontinued its agent regulation system, making it possible for agents to contact and communicate with players under existing contracts with other agents, something that is normally prohibited by the NFLPA. Defendants admit that they met with Quinn twice during the lockout, in mid-June and mid-July of 2011, and that they had wanted to represent Quinn since at least May of 2010.

The parties dispute the extent to which Defendants interacted with Quinn through intermediaries, specifically, Todd Stewart (“Stewart”), Marvin Austin (“Austin”), and Christina Quinn (“Christina Quinn”). Defendants admit that Stewart worked for Defendants on a trial basis from 2009 through 2011 and acted as an intermediary between Quinn and Impact Sports beginning in June 2011. However, they dispute the extent to which Stewart was compensated for his efforts. While Stewart claims he does not remember receiving money from Impact Sports, a former Impact Sports employee, Sean Kiernan, testified in his deposition that he recalls seeing advances paid to Stewart through Western Union during 2011 and 2012, in amounts as high as $5,000 per month.

Defendants further deny that any interaction between Quinn and Austin, or between Quinn and Christina Quinn, occurred at Defendants’ behest. Austin plays in the NFL for the Denver Broncos and previously played football with Quinn at the University of North Carolina. Christina Quinn began dating Quinn in 2011 and they are now married. Plaintiffs point to an email Defendant Fleming sent on July 12, 2011, in which he states that he and Austin “are making a hard push at Quinn today.” J.A. 2516. They also cite a number of calls that occurred between Fleming, Austin, Stewart, and Christina Quinn. The calls between Fleming, Stewart, and Austin date back as early as November 5, 2010, and the evidence shows Christina Quinn being on calls with Fleming and Stewart starting June 6, 2011.

The NFL held a draft in April 2011, in which Quinn was drafted fourteenth in the first round by the St. Louis Rams. According to Carey, after the NFL draft, he negotiated various promotional deals on Quinn’s behalf and arranged for Quinn to travel to St. Louis to look for a home in July 2011. On July 22, 2011, Quinn terminated his SRA with Carey by fax. The NFL lockout then ended, and on July 28, 2011, Quinn entered into an SRA with Tony Fleming, an NFLPA certified Contract Advisor who is affiliated with Impact Sports Football based in Boca Raton, Florida. Along with the SRA, Fleming and Quinn entered into a Marketing Advance Agreement, wherein Fleming advanced Quinn $100,000 to be repaid out of any future marketing income that Fleming generated for him. According to Defendants, the advance was disclosed to and accepted by the NFLPA. J.A. 75. On August 4, 2011, Quinn signed a contract with the St. Louis Rams for $4,073,468 over his first four seasons with a signing bonus of $5,362,585.

On January 13, 2012, Carey filed a grievance with the NFLPA, alleging that Quinn breached their SRA and claiming he was entitled to quantum meruit for the reasonable value of his services. The Arbitrator found that Carey was entitled to an award of $17,500, which compensated Carey for 70 hours of work as a Contract Advisor at an hourly rate of $250.

Plaintiffs filed suit in federal court on January 9, 2012, asserting five claims: (1) unfair methods of competition; (2) tortious interference; (3) slander per se; (4) civil conspiracy; and (5) unjust enrichment. The district court dismissed three of the claims after Defendants moved to dismiss the complaint, leaving only the claims for unfair methods of competition and civil conspiracy. Following discovery, Defendants moved for summary judgment on the remaining claims. Plaintiffs then filed a motion for sanctions in the form of default judgment or an adverse jury instruction directed against Defendants, alleging that the Defendants lost or deleted critical electronically-stored evidence, namely, text messages. On July 15, 2015, the district court denied in part and granted in part Plaintiffs’ motion for sanctions and granted Defendants’ motion for summary judgment on all remaining claims.

This appeal followed.

II.

A.

We review the district court’s grant of summary judgment de novo, viewing the facts in the light most favorable to Plaintiffs, the nonmovant. See Askew v. HRFC, LLC, 810 F.3d 263, 266 (4th Cir. 2016). We may affirm “on any legal ground supported by the record and are not limited to the grounds relied on by the district court.” Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir. 1993). Summary judgment is warranted where “there is no genuine dispute as to any material fact and the mov-ant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Because we are sitting in diversity and addressing matters of North Carolina law, we apply governing North Carolina law or, if necessary, predict how the Supreme Court of North Carolina would rule on an unsettled issue. See Askew, 810 F,3d at 266.

B.

Plaintiffs first argue that the district court erred in granting summary judgment on their claim that Defendants violated the UDTPA. The district court found that even if Defendants acted in the manner alleged by Plaintiffs, such conduct would not violate the UDTPA as a matter of law. Plaintiffs disagree, arguing that Defendants committed unfair and deceptive acts or practices by: (1) illegally using “runners” to recruit Quinn as a client; (2) paying a large amount of money to Quinn in the form of a “Marketing Advance” as a means of inducing him to terminate his SRA with Plaintiffs; and (3) committing these acts as a means of retaliating against Plaintiffs. Defendants deny these allegations and assert that there was nothing nefarious in giving Quinn a Marketing Advance, a type of transaction typical in the industry. In Defendants’ view, the conduct alleged by Plaintiffs, even if taken to be true, cannot establish any unfair or deceptive practices within the scope of the UDT-PA. They contend that Carey has already arbitrated his grievance in the proper forum through the NFLPA, and that the UDTPA was not meant to address, perceived wrongs in recruitment practices by Contract Advisors.

Because we agree with the district court that Plaintiffs’ allegations, even when assumed to be true, are insufficient to establish a violation of the UDTPA, we address the. factual disputes only briefly and focus instead on the legal issues presented.

To state a claim under the UDT-PA, a claimant must allege (1) an unfair or deceptive act or practice; (2) in or affecting commerce; (8) which proximately caused injury to the plaintiff or his business. See N.C. Gen. Stat. § 75-1.1; Walker v. Fleetwood Homes of N.C., Inc., 362 N.C. 63, 653 S.E.2d 393, 399 (2007); Dalton v. Camp, 353 N.C. 647, 548 S.E.2d 704, 711 (2001). Conduct in violation of the UDTPA must be immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers. See, e.g., Gilbane Bldg. Co. v. Fed. Reserve Bank, 80 F,3d 895, 902 (4th Cir. 1996); Branch Banking & Trust Co. v. Thompson, 107 N.C.App. 53, 418 S.E.2d 694, 700 (1992). An act is deceptive if it has a tendency or capacity to deceive. Dalton, 353 N.C. at 656, 548 S.E.2d at 711; Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397, 403 (1981). An act is unfair “if it offends established public policy,” “⅛ immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers,” or “amounts to an inequitable assertion of ... power or position.” Carcano v. JBSS, LLC, 200 N.C.App. 162, 684 S.E.2d 41, 50 (2009) (quotation omitted), (emphasis removed); see Gilbane Bldg. Co., 80 F.3d at 902. “Whether an act or practice is unfair or deceptive under the UDTPA is a question of law for the court.” Kelly v. Ga.-Pac., LLC, 671 F.Supp.2d 785, 798-99 (E.D.N.C. 2009) (collecting cases).

In a recent opinion, this" Court noted that the UDTPA’s provision for treble damages has made courts “reluctant' to classify every instance of wrongdoing in business transactions as a violation of the UDTPA.” Curtis B. Pearson Music Co. v. Everitt, 368 Fed.Appx. 450, 455-56 (4th Cir. 2010); see also Wilson v. Blue Ridge Elec. Membership Corp., 157 N.C.App. 355, 578 S.E.2d 692, 694 (2003) (“N.C. Gen. Stat. § 75-1.1 was not meant to encompass all business activities or all wrongdoings in a business setting but ‘was adopted to ensure that the original intent of the statute ... was effectuated.’ ”). Indeed, to “prevail on an UDTPA claim, plaintiffs must demonstrate ‘some type of egregious or aggravating circumstances.’ ” Id. Here, the allegations made by Plaintiffs, even if taken to be true, do not establish egregious or aggravating conduct sufficient to establish a UDTPA claim.

Plaintiffs first allege that Impact Sports violated the UDTPA by using runners to recruit Quinn away from Carey. “Runner” is a term of art used in the sports industry to refer to “any individual who performs errands for a sports agent or agency, including offering players benefits and money to entice them to become clients.” J.A. 2066. Plaintiffs claim that Defendants engaged Marvin Austin, Todd Stewart, and Christina Quinn as runners to “secretly recruit” and “solicit” Quinn and to “poison him against Carey.” Plaintiffs argue that this conduct violates public policy and is both unfair and deceptive under the UDT-PA. Plaintiffs further allege that Defendants violated the UDTPA by giving Quinn a $100,000 “Marketing Advance” to induce him to terminate his SRA with Carey. According to Plaintiffs, because Defendants never intended for Quinn to pay back this advance, the payment was unfair and deceptive.

Even if these allegations are taken to be true, an assumption we make only to get to the heart of this case, we believe that such activity is indicative of the industry in which these parties operate and falls outside the scope of business activities the UDTPA is designed to address. To support their claims, Plaintiffs assert that certain regulations under the North Carolina Uniform Athlete Agents Act (“UAAA”) and NFLPA prohibit the use of runners. They also cite numerous news articles indicating that the practice of using runners is reviled by many in the industry. However, rather than support Plaintiffs’ claims, the evidence they cite indicates that the business activities of Contract Advisors are already subject to an extensive regulatory regime under the NFLPA.

For example, the NFLPA has carefully crafted regulations to manage the business relationships at issue here, specifically, between players and agents and between agents and agents. Recognizing the potential for unfair or deceptive practices among agents, the NFLPA has created the NFLPA Regulations Governing Contract Advisors (“Regulations”). It amended these Regulations in June 2012 to expressly forbid the use of runners. While this regulation was not in effect when Quinn entered into an SRA with Impact Sports, its creation indicates that the NFLPA was aware of the issues that using runners presented and that it has taken significant steps to internally police such conduct. Further, the Regulations expressly prohibit Contract Advisors from “[e]ngaging in unlawful conduct and/or conduct involving dishonesty, fraud, deceit, misrepresentation, or other activity which reflects adversely on his/her fitness as a Contract Advisor or jeopardizes his/her effective representation of NFL players.” (NFLPA Agent Regulations at Section 3). Violators of this regulation are subject to arbitration proceedings. (NFLPA Agent Regulations at Section 5). Given the well-established internal systems of governance already in place, we decline to impose an additional statutory mechanism to govern the alleged conduct.

Such an imposition would conflict with North Carolina’s treatment of the UDTPA. As stated by the Western District of North Carolina in a recent opinion, “North Carolina courts have refused to apply the UDTPA to ... matters already under ‘pervasive and intricate regulation’ by other statutoiy schemes that contain separate enforcement, supervisory, and remedial provisions.” Hagy v. Advance Auto Parts, Inc., No. 3:15-CV-509-RJC-DCK, 2016 WL 5661530, at *2 (W.D.N.C. Sept. 28, 2016) (quoting Skinner v. E.F. Hutton & Co, Inc., 314 N.C. 267, 333 S.E.2d 236, 241 (1985)). Recognizing that the “UDTPA’s broad language and provision for treble damages” has led to its inclusion “in most every complaint based on a commercial or consumer transaction in North Carolina,” Judge Conrad noted that courts have found this remedy inappropriate “where there already exists an extensive regulatory regime to address the violations.” Hagy, 2016 WL 5661530, at *2. This is “because such a remedy under those circumstances would improperly create overlapping supervision, enforcement, and liability in this area.” Id. (quoting Wake County v. Ho tels.com, LP, 2007 WL 4125456 (N.C. Sup. Ct. Nov. 19, 2007) (internal quotations omitted)); see also Skinner, 314 N.C. at 275, 333 S.E.2d at 241 (holding that the UDTPA does not apply to securities transactions because they are subject to “pervasive and intricate regulation”); Bache Halsey Stuart, Inc. v. Hunsucker, 38 N.C.App. 414, 248 S.E.2d 567, 570 (1978) (holding that the UDTPA does not apply to commodities transactions because they are subject to a “pervasive” federal scheme).

"While admittedly not a statutory scheme, the NFLPA has created an extensive regulatory regime to govern business activities within the industry. It has provided a remedy for violations in the form of monetary damages and a means to obtain that remedy through arbitration. Plaintiffs themselves recognize that the NFLPA views itself as a “self-regulating” industry. Thus, were the Court to find the UDTPA applicable here, we would risk improperly creating “overlapping supervision, enforcement, and liability in” the NFLPA’s regime no different in kind from that which Hagy cautioned against. Hagy, 2016 WL 5661530, at *2.

We also would have to ignore the practical workings of this industry. For example, the Marketing Advance complained of by Plaintiffs appears to be a practice designed to maximize player choice. While the Regulations do not touch on the appropriateness of Marketing Advances, or other similar types of payments, the evidence indicates that such payments are common in the industry and implicitly approved by the NFLPA. The record reveals that Carey himself made a large payment to Quinn when solidifying their business relationship, with no apparent expectation of repayment. Specifically, he agreed to pay Quinn and/or his father $125,000 pursuant to a Financial Assistance Agreement, and he paid them a portion — $25,000—on the day they entered into the SRA. Carey’s own conduct indicates that these kinds of payments are accepted as part of doing business in this industry and would not be considered unfair or deceptive by the NFLPA. This is particularly true for Defendants’ Marketing Advance to Quinn, which was disclosed to and approved by the NFLPA. The industry’s implicit, and sometimes explicit, approval of these types of payments demonstrates a tactical understanding of the business relationships at issue that we would be unwise to disrupt.

Moreover, in the business relationships at issue here, there is no inherent imbalance of power that would make a statute like the UDTPA particularly necessary or beneficial to apply. “[T]he fundamental purpose of the U[D]TPA is to protect the consumer, and courts invariably look to that purpose in deciding whether the act applies.” Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505, 520 (4th Cir. 1999). Here, no protection is needed beyond the internal system of governance already in place. The parties in this case are not in a business relationship of unequal power. Rather, the business relationships at issue are demonstrative of the competitive nature of NFL recruiting and involve Contract Advisors of sufficiently similar business sophistication and means.

Plaintiffs’ final allegation, that Defendants’ actions were motivated by a retaliatory animus, does not alter our finding. Plaintiffs argue that Defendants harbored a retaliatory animus against Carey because of disparaging comments Carey made about Fleming in 2002, when Fleming was trying to recruit NFL player Julius Peppers (“Peppers”). Peppers opted against signing with Impact Sports and eventually signed with Carey. Plaintiffs claim that Defendants resented Carey as a result. Defendants assert that they had no knowledge of Carey’s alleged comments to Peppers about Impact Sports until Carey filed this action, and Plaintiffs have not provided any direct evidence to contradict this assertion. We agree with the district court that the evidence submitted to support this claim “is little more than allegations, conjecture, and speculation.” J.A. 3876.

However, even if we were to assume Defendants’ actions were retaliatory in nature, such a finding does not bring Plaintiffs’ claims within the scope of the UDT-PA. North Carolina courts have typically found a UDTPA violation where the alleged retaliation is particularly egregious and without any legitimate business purpose. See Shepard v. Bonita Vista Props., L.P., 191 N.C.App. 614, 664 S.E.2d 388, 392 (2008), aff'd, 363 N.C. 252, 675 S.E.2d 332 (2009) (finding a UDTPA violation where an RV park owner turned off a resident’s power in retaliation for reporting the RV park to the local health depart and where the park owner told the resident “she would ‘fix’ her”); see also Martin v. Bimbo Foods Bakeries Dist., LLC, No. 5:15-CV-96-BR, 2015 WL 1884994, at *8 (E.D.N.C. Apr. 24, 2015) (denying motion to dismiss UDTPA claim where plaintiff alleged that defendant charged plaintiff unreasonable expenses in the operation of his distribution route and failed to obtain the best price for plaintiffs distribution rights to punish plaintiff for opposing defendant’s abusive practice toward its distributors). Here, there is no overt evidence of retaliation, and the alleged conduct can be readily explained as Defendants acting within the accepted confines of the industry in which they operate.

This Court would be remiss, therefore, to superimpose the UDTPA upon the rough and tumble of NFL recruiting, a competitive arena in which the incentives are already carefully balanced by existing policies and regulations. To do so would be to distort those incentives in a manner detrimental to players and agents alike. In sum, we find no basis to apply the UDTPA to the allegations made by Plaintiffs.

III.

Because we find that Defendants’ actions did not constitute a violation of the UDTPA, there can be no surviving claim that Defendants conspired to violate this statute. Civil conspiracy requires “an underlying claim for unlawful conduct,” Sellers v. Morton, 191 N.C.App. 75, 661 S.E.2d 915, 922 (2008) (quoting Toomer v. Garrett, 155 N.C.App. 462, 574 S.E.2d 76, 92 (2002)), and none remains. Accordingly, Plaintiffs’ civil conspiracy claim also fails as a matter of law.

IV.

Having granted summary judgment on Plaintiffs’ remaining claims, Plaintiffs’ appeal that the district court erred in failing to award sanctions in the form of an adverse jury instruction is moot. For the foregoing reasons, we affirm the district court’s judgment.

AFFIRMED

      . Plaintiffs filed suit in the United States District Court for the Southern District of Texas on July 25, 2011, and the Circuit Court of St. Charles County, State of Missouri on November 14, 2011. Plaintiffs voluntarily dismissed the Texas action and settled the Missouri action.

      . Robert Quinn and his wife, Christina Quinn, were also originally named as Defendants, but were later dismissed from the case.

      . The collegiate football industry also internally regulates the practice of using runners. The UAAA prohibits contact with a student-athlete unless the agent is registered with the North Carolina Secretary of State. See UAAA Art. 9 § 78C-98(b)(l).


source: Caselaw Access Project

author: AGEE, Circuit Judge:

license: Public Domain

text:
    Brandon PEGG, Plaintiff-Appellee, v. Grant HERRNBERGER, individually and in his capacity as agent and employee of the West Virginia State Police, Defendant-Appellant.
    No. 15-1999
    United States Court of Appeals, Fourth Circuit.
    Argued: October 27, 2016
    Decided: January 4, 2017

      ARGUED: Monte Lee Williams, Steptoe & Johnson PLLC, Morgantown, West Virginia, for Appellant. Robert G. McCoid, McCamic, Sacco & McCoid, P.L.L.C., Wheeling, West Virginia, for Appellee. ON BRIEF: Deva A. Solomon, Robert L. Bailey, Steptoe & Johnson PLLC, Morgan-town, West Virginia, for Appellant. Paul J. Harris, Harris Law Offices, Wheeling, West Virginia, for Appellee.
    Before NIEMEYER, KING, and AGEE, Circuit Judges.
   Reversed and remanded with instructions by published opinion. Judge AGEE wrote the opinion, in which Judge NIEMEYER and Judge KING joined.

AGEE, Circuit Judge:

Brandon Pegg sued West Virginia State Trooper Grant Herrnberger, alleging that Herrnberger used excessive force in effectuating the arrest of Pegg, in violation of state and federal law. Herrnberger appeals the district court’s denial of his motion for summary judgment based upon that court’s holding Herrnberger was not, as a matter of law, entitled to qualified immunity. For the reasons that follow, we reverse the district court’s order denying Herrnberger’s motion for summary judgment and remand with instructions to enter judgment in favor of Herrnberger.

I. Factual Background

On August 4, 2013, Herrnberger and another trooper, William Beck, were examining an abandoned vehicle on the side of the road when Brandon Pegg drove by slowly in his truck with the driver’s side window open. Herrnberger noticed the truck had an expired inspection sticker and called out to Pegg to stop the vehicle. Pegg did not stop and sped away. The troopers then left in pursuit of Pegg’s truck and eventually pulled him over.

Beck approached the driver’s side of Pegg’s vehicle to speak with Pegg while Herrnberger approached the passenger side to speak with the front passenger, Robert Beever. When Herrnberger asked to see Beever’s identification, Pegg asked why Beever needed to produce identification.

Herrnberger contends that Pegg then reached for something between his legs, a claim Pegg denies. Herrnberger asserts that Pegg’s reaching motion appeared suspicious, so he approached the driver’s door and ordered Pegg out of his truck. Pegg complied and followed Herrnberger to the rear of Pegg’s truck. Herrnberger then instructed Pegg to face the truck, put his hands behind his back, and lock his hands together. Before Pegg turned to face the truck, Herrnberger demonstrated how Pegg should lock his hands together.

Pegg placed his left hand at the small of his back and began to bring his right arm behind his back, but did not interlock his hands as instructed. Herrnberger grabbed Pegg’s right arm. Pegg then turned and said ‘Why is this happening or something along those lines” to Herrnberger and pulled his right arm away from the trooper. J.A. 46. Herrnberger then pushed Pegg against the truck with his left arm, and attempted to pull Pegg’s right arm back, which Pegg resisted. Herrnberger then took Pegg to the ground, and both troopers pinned Pegg there and handcuffed him in an event that took less than forty seconds before Pegg was helped to his feet. As a result, Pegg claims he suffered minor scrapes and abrasions on his head, which he treated with peroxide and Neosporin, but did not seek medical attention.

The troopers arrested Pegg for assaulting a police officer (W Va. Code § 61-2-10b(e)), obstructing an officer (W. Va. Code § 61 — 5—17(a)), and driving with an expired inspection sticker (W. Va. Code § 17C-16-9). Pegg was jailed for 8-12 hours before released. A magistrate judge dismissed the assault charge for lack of probable cause, and the prosecuting attorney dismissed the rest of the charges for reasons not apparent on the record.

Pegg then filed a complaint in the U.S. District Court for the Northern District of West Virginia against Herrnberger, individually and in his official capacity pursuant to 42 U.S.C. § 1983. The complaint alleged federal claims of unlawful arrest, retaliatory arrest, and excessive force, and state claims of outrage/intentional infliction of emotional distress and battery. Herrnberger filed a motion for summary judgment, arguing that the suit was barred against him in his official capacity based on sovereign immunity and in his individual capacity because of qualified immunity.

The district court granted Herrnber-ger’s motion for summary judgment in part and denied it in part. All claims against Herrnberger in his official capacity were dismissed as barred by sovereign immunity. Pegg does not challenge the district court’s ruling as to the official capacity claims. The district court denied summary judgment for the claims against Herrnberger in his individual capacity, ruling he was not entitled to qualified immunity.

Herrnberger filed a timely appeal, and we have jurisdiction of the appeal under 28 U.S.C. § 1291. See Am. Civil Liberties Union, Inc. v. Wicomico Cty., 999 F.2d 780, 784 (4th Cir. 1993) (citing Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (stating questions of law surrounding qualified immunity are appealable as final decisions within the meaning of § 1291).

II. Analysis

“We review de novo a district court’s denial of summary judgment and qualified immunity, construing all facts in the light most favorable to the nonmov-ant.” Orem v. Rephann, 523 F.3d 442, 445 (4th Cir. 2008). Thus, for purposes of our review here, we construe all facts in the light most favorable to Pegg as non-moving party. For issues concerning qualified immunity, we have jurisdiction to consider purely legal questions, but not over the district court’s “determination that the summary judgment record in this case raised a genuine issue of fact” because that is not a final decision for purposes of 28 U.S.C. § 1291. Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Put another way, “we possess no jurisdiction over a claim that a plaintiff has not presented enough evidence to prove that the plaintiffs version of the events actually occurred, but we have jurisdiction over a claim that there was no violation of clearly established law accepting the facts as the district court viewed them.” Winfield v. Bass, 106 F.3d 525, 530 (4th Cir. 1997). Consequently, we accept the facts as the district court articulated them when it determined whether summary judgment was appropriate, and then we determine “whether, based on those facts, a reasonable person in the defendant’s position could have believed that he or she was acting in conformity with the clearly established law at the time.” Gray-Hopkins v. Prince George’s Cty., 309 F.3d 224, 229 (4th Cir. 2002).

“Qualified immunity protects officers who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc). When evaluating whether a right was clearly established at the time of a violation, courts do not ask “whether the right allegedly violated was established ‘as a broad general proposition’ but whether ‘it would be clear to a reasonable official that his conduct was unlawful in the situation he confronted.’ ” Raub v. Campbell, 785 F.3d 876, 882 (4th Cir. 2015) (quoting Saucier v. Katz, 533 U.S. 194, 201-202, 121 S.Ct. 2151,150 L.Ed.2d 272 (2001)).

A. Qualified Immunity for Unlawful Arrest

The district court determined that Herrnberger’s arrest of Pegg was unlawful because it believed Herrnberger did not “principally” arrest Pegg for the expired inspection sticker. Instead, the district court opined the arrest was “for obstructing an officer only after he asked [Herrn-berger] a question during the traffic stop.” J.A. 376.

Herrnberger denies that motivation and, in any event, argues that purported subjective reasons for arresting Pegg should not enter into the qualified immunity analysis because Fogg’s violation of West Virginia law constituted probable cause for the arrest. Therefore, with probable cause to arrest, Herrnberger contends he is entitled to qualified immunity. We agree with Herrnberger.

The Supreme Court has stated unequivocally that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). In Atwater, the arrestee committed a seat belt violation punishable only by a fine. Nonetheless, the Supreme Court held that the Fourth Amendment does not forbid a warrantless arrest for such a minor violation. Id.

Here, Pegg admits that his vehicle had an expired inspection sticker in violation of West Virginia law. See W. Va. Code § 17C-16-9. Further, he admits this violation occurred in Herrnberger’s presence. Therefore, just as in Atwater, though Pegg’s offense was minor, the Fourth Amendment does not forbid a warrantless arrest for such a violation.

The Supreme Court specifically rejected in Atwater the argument Pegg makes here: that the Fourth Amendment would forbid “custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time....” Atwater, 532 U.S. at 346, 121 S.Ct. 1536. Under Atwater, therefore, whether or not a § 17C-16-9 violation is a jailable offense is irrelevant for purposes of the application of qualified immunity.

Pegg attempts to distinguish Atwater by arguing that unlike the Texas seatbelt statute at issue in that case, § 17C-16-9 is not an offense subject to a custodial arrest or punishable by incarceration. He argues that § 17C-16-9 is not among the list of traffic offenses that a separate statute, § 17C-19-3, enumerates as warranting arrest. But that contention — even if a correct recitation of state law — is of no consequence under Atwater for Fourth Amendment qualified immunity purposes. Id.

In any event, under West Virginia law, police officers have the authority to effect an arrest for minor traffic violations, including the one at issue here. The language of § 17C-19-3 does not support the reading of the statute that Pegg advances. See § 17C-19-3 (prescribing arrest for traffic violations in “any of the following cases,” not in “only the following cases”) (emphasis added). Similarly, the statute that controls the procedure for issuing traffic citations, § 17C-19-4, does not prohibit an officer from making an arrest instead of issuing a citation. That these two provisions do not prohibit an officer from making arrests for certain minor offenses is supported by yet another West Virginia statute pertaining to traffic regulations, § 17C-19-5, which provides that “the procedure prescribed [in Chapter 17] shall not otherwise be exclusive of any other method prescribed by law for the arrest and prosecution of a person for an offense of like grade.” Such alternative method is described in § 15-2-12(b)(l), which empowers West Virginia State Troopers to make warrantless arrests when witness to “any offense or crime” (emphasis added). As noted earlier, Pegg does not deny that his offense of operating a motor vehicle with an expired inspection sticker occurred in the presence of Herrn-berger. As a result, under Atwater and the West Virginia statutes, Herrnberger had probable cause to arrest Pegg for the expired inspection sticker violation.

The district court’s determination that Herrnberger arrested Pegg “in practicality” for assault and obstruction of justice, instead of the expired inspection sticker, is also ultimately irrelevant. J.A. 375. The proper focus of the inquiry is not any subjective reason for arresting Pegg, but only the objective facts surrounding the arrest. As the Supreme Court has previously explained, the “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Instead, the Fourth Amendment requires an analysis under which a police officer’s action is not invalidated “‘as long as the circumstances, viewed objectively, justify that action.’ ” Id. (quoting Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)) (emphasis added). The objective and undisputed fact of Pegg’s violation of § 17C-16-9 is fully sufficient, in and of itself, to justify his arrest. Thus, Herrn-berger did not violate the Fourth Amendment and he is entitled to qualified immunity on this claim as a matter of law.' The district court erred in failing to grant summary judgment to-Herrnberger on Pegg’s claim of unlawful arrest.

B. Qualified Immunity for Retaliatory Arrest

The probable cause inherent in Pegg’s violation of § 17C-16-9 also defeats his First Amendment retaliatory arrest claim. The Supreme Court “has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause.” Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012). Since the Reichle decision, no such right has been recognized, so the Reichle principle is fully controlling here. Pegg’s violation of § 17C-16-9 gave Herrnberger probable cause to arrest Pegg; therefore his arrest was not retaliatory.

Contrary to the district court’s conclusion, it is not enough, that Pegg “simply plead ‘an absence of probable cause’ ” for his claim to survive summary judgment. J.A. at 377 (citing Tobey v. Jones, 706 F.3d 379, 392 (4th Cir. 2013)). The basis for that rule is the assumption that “‘probable cause or its absence will be , at least an evidentiary issue in practically all cases.’ ” Tobey v. Jones, 706 F.3d 379, 392 (4th Cir. 2013) (quoting Hartman v. Moore, 547 U.S. 250, 265, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). But in distinction from the appeal in Tobey from the denial of a motion to dismiss, the instant case is a decision on summary judgment. This case is not one where probable cause remains an evidentiary issue; it is undisputed that Pegg violated § 17C-16-9 in the arresting officer’s presence, thereby establishing the probable cause for his arrest. Herrnberger is thus entitled to qualified immunity on this claim as well and the district court erred in not granting his motion for summary judgment.

C. Qualified Immunity for Excessive Force

The district court concluded that Herrnberger was not entitled to qualified immunity for Fogg’s claim of excessive force on the basis of its finding that Herrnberger was “potentially ... pre-dis-posed to using force to arrest [Pegg].” Herrnberger denies any such subjective predisposition, but argues again that any subjective motivations in the mind of the police officer do not factor into the qualified immunity analysis. We again agree with Herrnberger.

An inquiry into any predisposition for force on the part of Herrnberger is an improper mode of analysis for a Fourth Amendment excessive force claim. “Subjective factors involving the officer’s motives, intent, or propensities are not relevant.” Rowland v. Perry, 41 F.3d 167, 173 (4th Cir. 1994).

To determine whether a police officer applied excessive force in violation of the Fourth Amendment, we instead examine officers’ actions “in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Specifically, we examine “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.Ct. 1865. As when examining the lawfulness of an arrest, “[w]hether an officer has used excessive force is analyzed under a standard of objective reasonableness.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).

Though Fogg’s crime was not severe, he admits that he resisted arrest. We conclude Herrnberger applied no more force than necessary to overcome that resistance, Viewing the evidence in the light most favorable to Pegg, after Pegg placed his left hand behind his back he failed to interlock his hands as Herrnberger had just demonstrated to him seconds earlier. Pegg then attempted to withdraw his right arm from Herrnberger’s grasp. Herrnber-ger then briskly, but safely, took Pegg to the ground. Pegg remained on the ground for less than a minute and no longer than the time Herrnberger needed to handcuff him. According to Fogg’s own statements, Herrnberger did not strike, kick, or verbally abuse him. Instead, Herrnberger performed a simple maneuver to ensure Pegg’s compliance. Once Pegg was handcuffed, Herrnberger assisted Pegg back to a standing position and refrained from any further physical contact. As a result of the encounter, Pegg claims abrasions minor enough that he treated them at home with Neosporin and peroxide and did not seek medical assistance. An efficient, lawful arrest of a resisting suspect that causes the suspect to suffer only de minimis injuries does not constitute excessive force. Herrn-berger’s actions were objectively reasonable and he is entitled to qualified immunity as a result. The district court erred in holding to the contrary.

D.. Qualified Immunity for West Virginia State Law Claims

Pegg’s complaint also alleged West Virginia state law claims for battery and outrage (intentional infliction of emotional distress) against Herrnberger. Under West Virginia law, a police officer is not entitled to qualified immunity when his or her conduct results in a clearly established constitutional or statutory violation. See Hutchison v. City of Huntington, 198 W.Va. 139, 479 S.E.2d 649, 659 (1996). A police officer is also not entitled to qualified immunity under West Virginia law if his or her conduct is “fraudulent, malicious, or otherwise oppressive.” Id.

1. Battery

Battery under West Virginia law tracks the elements set forth in the Restatement (Second) of Torts: an individual commits battery when “(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or ah imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.” W. Va. Fire & Cas. v. Stanley, 216 W.Va. 40, 602 S.E.2d 483, 494 (2004) (quoting the Restatement). Moreover, lawful arrests are excluded from the scope of West Virginia battery. A person lawfully performing an arrest is afforded a privilege to engage in arrests within the limit of their jurisdiction, so long as the force is not excessive. Restatement (Second) at § 118; 132.

Relying on its analysis of the claims for unlawful arrest and excessive force, the district court held that a reasonable trier of fact could conclude “the force [Herrnberger] used was unreasonable in the instant case.” J.A. 383. As should be evident from our analysis of the foregoing federal claims, Herrnberger did not apply excessive force when arresting Pegg. Accordingly, his contact with Pegg would be privileged for qualified immunity purposes so long as it was not fraudulent, malicious, or otherwise oppressive. Pegg has made no such argument and there is nothing in the record that would allow a conclusion that Herrnberger’s alleged actions were malicious or oppressive. Herrnberger remained calm throughout the interaction and applied no more force than necessary to effect a lawful arrest. Moreover, that force was momentary and slight. Herrnberger is thus entitled to qualified immunity on this claim as well. The district court erred in finding otherwise.

2. Outrage, or Intentional Infliction of Emotional Distress

Pegg argued, and the district court agreed, that Herrnberger effected an unlawful arrest with excessive force, which Pegg characterized as a violation of the special trust society bestows upon law enforcement officers egregious enough to support an outrage claim. Herrnberger responded that, the arrest was lawful and performed with only the necessary force and therefore cannot form the basis of an outrage claim. Herrnberger is correct.

Under West Virginia law, to establish the tort of.outrage, more commonly known as intentional infliction of emotional distress, the plaintiff must establish four elements:

(1) that the defendant’s conduct was atrocious, intolerable, and so extreme and outrageous as to exceed the bounds of decency;
(2) that the defendant acted with the intent to inflict emotional distress, or acted recklessly when it was certain or substantially certain emotional distress would result from his conduct;
(3) that the actions of the defendant caused the plaintiff to suffer emotional distress and;
(4) that the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.

Loudin v. Nat’l Liab. & Fire Ins., 228 W.Va. 34, 716 S.E.2d 696, 705 (2011).

It is difficult to overstate the high burden of proof required to sustain a tort claim for intentional infliction of emotional distress/outrage. West Virginia courts only find liability for outrage “ ‘where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ This is a high standard indeed.” Keyes v. Keyes, 182 W.Va. 802, 392 S.E.2d 693, 696 (1990) (quoting Harless v. First Nat’l Bank, 169 W.Va. 673, 289 S.E.2d 692, 703-04, n. 20 (1982)).

Viewed objectively and in the light most favorable to Pegg, his outrage claim does not come close to meeting the legal threshold. Herrnberger’s conduct does not rise to the level of battery, much less clear the much higher bar required for outrage. A lawful arrest performed without excessive force is, at worst, conduct that is “merely annoying, harmful of one’s rights or expectations, uncivil, mean-spirited, or negligent.” Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418, 423 (1991), rev’d on other grounds, Courtney v. Courtney, 190 W.Va. 126, 437 S.E.2d 436 (1993). Herrnberger’s arrest of Pegg was lawful and without excessive force and does not “constitute outrageous conduct.” Id. The facts of this case are markedly milder than the kind of conduct courts applying West Virginia law have found necessary to support an intentional infliction of emotional distress claim. See, e.g., Heldreth v. Marrs, 188 W.Va. 481, 425 S.E.2d 157, 161-62 (1992) (allowing an outrage claim to proceed when a husband suffered a heart attack after witnessing his wife get struck by a car and die); Hutchinson v. W. Virginia State Police, 731 F.Supp.2d 521, 531 (S.D. W. Va. 2010) (finding a legally cognizable claim for outrage for a female suspect who was pulled from the shower by the hair during the execution of a search warrant and forced to lie down naked for at least 45 minutes in the presence of eleven male law enforcement officers, one of whom slapped her behind) affd sub nom. Hutchinson v. Lemmon, 436 Fed. Appx. 210 (4th Cir. 2011). But see Keyes, 392 S.E.2d at 694 (disallowing an outrage claim when a family excluded a son from his father’s obituary, burial plans, and the car ride to the funeral); Lee v. City of S. Charleston, 668 F.Supp.2d 763, 779 (S.D. W. Va. 2009) (disallowing outrage claim based on a roadside public strip search that exposed arrestee’s genitals to the arresting officer); Lowe v. Spears, 2009 WL 1393860, at *6 (S.D. W. Va. May 15, 2009) (disallowing outrage claim when an officer arrested an individual for a minor offense, possibly in response to arrestee’s use of profanity toward the officer).

Herrnberger is entitled to qualified immunity on this claim and the district court erred in concluding otherwise.

III. Conclusion

For the foregoing reasons, we reverse the district court’s order denying Herrn-berger’s motion for summary judgment. He was entitled to qualified immunity for all claims as a matter of law. The case is therefore remanded to the district court for the entry of judgment in favor of Herrnberger on all claims.

REVERSED AND REMANDED WITH INSTRUCTIONS

      . A fifth claim, for false imprisonment, was dismissed as barred by the statute of limitations and is also not at issue on appeal.

      . The opinion omits internal quotation marks, alterations, and citations here and throughout, unless otherwise noted.

      . "Request No. 1: Admit that on August 4, 2013, at approximately 11:30 a.m., you were operating a vehicle that had an expired inspection sticker. Response: Admitted.” J.A. 101.

      . Pegg’s violation of § 17C-16-9 established probable cause for his arrest and a search incident to that arrest. Accordingly, we need not consider whether Hermberger’s actions were also permitted under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ("A custodial arrest of a suspect based on probable cause is a reasonable intrusion under U.S. Const, amend. IV; that intrusion being lawful, a search incident to the arrest requires no additional justification. ”).

      . "Request No. 6: Admit that you resisted Trooper Herrnberger's attempt to secure your hands behind your back. Response: Admitted." J.A. 101.


author: NIEMEYER, Circuit Judge:

text:
    Laurie L. WOOD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 15-2106
    United States Court of Appeals, Fourth Circuit.
    Argued: October 26, 2016
    Decided: January 4, 2017

      ARGUED: Timothy Jon DeMore, De-More Law Firm, Syracuse, New York, for Appellant. Kent Pendleton Porter, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Matthew D. Green, Gibson S. Wright, Morris & Morris, P.C., Richmond, Virginia; Brittany E. Aungier, Hiscock & Barclay, LLP, Syracuse, New York, for Appellant. Dana J. Boente, United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.
    Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
   Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILKINSON and Judge SHEDD joined.

NIEMEYER, Circuit Judge:

Laurie Wood, a City of Norfolk (Virginia) Sheriffs Deputy, was seriously injured during a training session on a Navy base when she jumped from a training structure onto a set of mats, landing in a gap between them. She commenced this action against the United States under the Federal Tort Claims Act (“FTCA”), alleging that Navy officers negligently allowed the structure, particularly the mats placed adjacent to it, to remain in a dangerous condition and failed to warn her of the dangerous gap between the mats. The district court granted the government’s motion to dismiss, concluding that the challenged Navy conduct fell within the FTCA’s “discretionary function exception” and therefore that Congress had not waived sovereign immunity for Wood’s claim.

On appeal, Wood contends that her complaint alleged a straightforward negligence claim under Virginia law, for which the United States waived sovereign immunity in the FTCA. Specifically, she argues that the Navy’s conduct was “not discretionary in nature” so as to be excluded from the waiver of sovereign immunity because it was not the sort of conduct that the discretionary function exception was intended to protect.

Because we conclude that the Navy’s decisions regarding the maintenance of its military bases for use by civilian law enforcement involved policy judgments that Congress sought to shield from tort liability under the FTCA, we affirm.

I

Wood was injured while using a piece of training equipment located within the Naval Support Activity Hampton Roads, Northwest Annex (“Northwest Annex”), a restricted access military base of some 3,600 acres in Chesapeake, Virginia. The Northwest Annex, which was owned and operated by the Navy, was managed by two Navy instrumentalities — the Marine Corps Security Force Training Company and the Navy’s Center for Security Forces.

By statute, the Department of Defense is authorized to make military facilities such as the Northwest Annex available to state and local civilian law enforcement officers for training purposes, 10 U.S.C. § 372, and to train civilian officers to use those facilities, id. § 373, so long as the civilian training does not “adversely affect the military preparedness of the United States,” id. § 376. A Department of Defense directive and several military orders set forth policies regarding the use of military facilities by civilian law enforcement generally, and Standard Operating Procedures set forth procedures governing law enforcement’s use of the Northwest Annex specifically.

Before any civilian law enforcement agency may use Northwest Annex facilities for training, one of its officers must qualify under a Marine Corps training program as a Range Safety Officer. During that training, the civilian officer is provided with excerpts of the Standard Operating Procedures, which outline the officer’s duties as a Range Safety Officer. The officer is instructed on how to schedule the facilities, coach his fellow officers on the range, respond to accidents, and perform other “basic duties.” The officer is also shown a slideshow that admonishes all Range Safety Officers to “REMEMBER! The [Range Safety Officer] is solely responsible for the safety and the proper conduct of the training” at the Navy facility. Once a civilian officer qualifies as a Range Safety Officer, he may schedule use of the Northwest Annex for his law enforcement agency by submitting a request form that specifies the facilities and equipment being requested. This form must then be approved by a Navy or Marine Corps official, depending on which branch is responsible for the requested facility.

Sergeant Brad Ward of the City of Norfolk Sheriffs Office qualified as a Range Safety Officer in 2011, and in February 2012, he requested use of two facilities at the Northwest Annex — “Munro Village,” an outdoor tactical training facility designed to resemble a city block, and the “Simunition House.” Sergeant Ward’s request form did not include a request for use of the “Ship Mockup,” although the form also listed that facility as available. His request was approved by an officer of the Marine Corps, which managed Munro Village.

The “Ship Mockup,” which is managed by the Navy and on which Wood was injured, is located near Munro Village and is within the same general area. That equipment, which the Navy referred to as the “Ship in a Box” or the “mock-ship,” was a prismatic, three-story structure designed to resemble a foreign merchant ship. The Navy used the equipment to simulate ship-boarding by having soldiers — clad in armor and strapped into safety harnesses — climb a ladder onto the mock-ship’s third deck. Several mats were placed beneath the ladder both to recreate the difficulty of beginning a climb from an inflatable boat and to provide additional fall protection if a soldier’s harness were to fail.

On April 20, 2012, Wood and other officers, who shared responsibility for training the Sheriffs Office’s deputies, arrived at the Northwest Annex in preparation for the training exercises. As Wood and the other Sheriffs Office instructors walked through the Munro Village training facility, they discussed using the mock-ship to create a “bail-out” scenario for trainees to practice exiting a building at an elevated height. They contemplated that the trainees would jump from the mock-ship onto the mats below from the second story, a height of some 20 feet. One instructor, seeking to demonstrate the exercise, climbed up onto the mock-ship’s first story and jumped out onto the mats without incident. Wood then climbed onto the second story and jumped off. When she landed, however, two of the mats separated, and she fell through the gap onto the ground. The fall caused a burst fracture of her twelfth thoratic vertebra, rendering her a paraplegic.

After Wood’s administrative claim for damages was denied by the Navy, she commenced this action under the FTCA against the United States. She alleged that the United States negligently maintained the mock-ship in a dangerous condition by (1) failing to secure a “top pad” to the mock-ship’s mats to prevent them from separating; (2) failing adequately to inspect the condition of the mock-ship and its mats; and (3) failing to warn her, as a lawful invitee, of the dangerous condition created by the possibility of mat separation. The government filed a motion to dismiss Wood’s complaint, contending that the Navy’s challenged conduct — consisting of safety-related decisions regarding its training facilities when used by civilian law enforcement agencies — fell within the FTCA’s discretionary function exception and that therefore the United States could not be sued. The district court agreed and entered an order dismissing Wood’s complaint for a lack of subject matter jurisdiction.

After the court entered its order of dismissal, Wood filed a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), claiming that the district court’s dismissal of her complaint without allowing for discovery contravened our decision in Kerns v. United States, 585 F.3d 187 (4th Cir. 2009). The district court, however, found that Kerns was inapplicable because “jurisdictional facts” regarding the applicability of the discretionary function exception were not “ ‘inextricably intertwined’ with the merits of Plaintiffs claim.” Accordingly, it denied Wood’s motion.

From the district court’s May 14, 2015 order dismissing her complaint and its August 31, 2015 order denying her motion to alter or amend the judgment, Wood filed this appeal.

II

“[N]o action lies against the United States unless the legislature has authorized it.” Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 97 L.Ed. 1427 (1953).

In the FTCA, Congress waived sovereign immunity for claims brought against the United States based on the negligence or wrongful acts or omissions of its employees committed within the scope of employment, accepting liability in the same manner and to the same extent as a private individual would have under like circumstances. 28 U.S.C. §§ 1346(b)(1), 2671-2680. This waiver, however, is circumscribed by numerous exceptions, including an exception 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.” Id. § 2680(a) (emphasis added). Because waivers of sovereign immunity must be strictly construed, the plaintiff bears the burden of demonstrating jurisdiction and showing that none of the FTCA’s exceptions apply. See Welch v. United States, 409 F.3d 646, 651 (4th Cir. 2005).

In this case, the government challenged the district court’s jurisdiction based on the discretionary function exception set forth in § 2680(a), and therefore Wood had the burden of demonstrating that that exception did not apply. To carry her burden, she alleged that the United States’ creation and maintenance of an unsafe condition at the mock-ship and its failure to warn her of the condition were “not discretionary in nature and therefore [were] not excepted as discretionary acts from the government’s waiver of sovereign immunity.”

Acting on the government’s motion, the district court dismissed Wood’s complaint, concluding that Wood did not carry her burden. In reaching its conclusion, the district court read Wood’s complaint to challenge the government’s conduct in “the military’s maintenance decisions regarding the [mock-ship] as an unauthorized military facility, as opposed to a military facility that has been approved for civilian use.” It concluded that

the government’s maintenance of the [mock-ship] when it has not been approved for civilian use falls under the [discretionary function exception] because it implicates financial and staffing considerations. Equipment and facility maintenance considerations, as well as calculations balancing the benefit of increased safety measures and increased costs, objectively fall into the category of decisions that are susceptible to policy analysis.

On appeal, Wood contends that her claim for premises liability is a “garden variety” negligence claim that involves the failure to make premises safe for invitees or to give them warning of a known danger. She asserts that Congress did not intend for these “run of the mill” acts to be shielded by the discretionary function exception. She adds that the government’s focus on the training facility’s purposes and the Navy’s mission in maintaining the premises is “merely a distraction.” She also argues that its focus is too broad and general and, moreover, that the district court’s description of her use of the mock-ship as “unauthorized” is not supported by her allegations, which must be accepted at this stage in the proceedings.

The government contends, on the other hand, that Wood’s characterization of the conduct at issue is too narrow, collapsing the discretionary function inquiry into the question of negligence on the merits. The government asserts that Wood’s complaint actually challenges government decisions regarding the maintenance and inspection of, or the issuance of warnings relating to, military training facilities used by civilian law enforcement. Such decisions, it argues, are within the discretionary function exception for which the government has not waived immunity in the FTCA.

The determination of whether the discretionary function exception applies requires application of a two-step analysis. First, a court must determine whether the conduct in question “involves an element of judgment or choice.” Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). When a statute, regulation, or policy prescribes the employee’s conduct, the conduct cannot be discretionary and thus is unprotected by the discretionary function exception. Id.; see also United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267,113 L.Ed.2d 335 (1991); Seaside Farm, Inc. v. United States, 842 F.3d 853, 858-59 (4th Cir. 2016). Second, when the challenged conduct is the product of judgment or choice, the court must still determine whether the decision made was “based on considerations of public policy.” Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954. This second step of the analysis is designed to prohibit courts from “second guessing” decisions “grounded in social, economic, and political policy through the medium of an action in tort.” Gaubert, 499 U.S. at 323, 111 S.Ct. 1267 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984)). And in this same vein, “when established government 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.” Id. at 324, 111 S.Ct. 1267 (emphasis added). In short, the discretionary function exception is driven by separation of powers concerns, shielding decisions of a government entity made within the scope of any regulatory policy expressed in statute, regulation, or policy guidance, even when made negligently.

The analysis of whether the discretionary function exception applies does not depend on whether the government employee had subjective knowledge of his discretion or subjectively intended to exercise it; the analysis must focus objectively on “the nature of the actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267; see also Seaside Farm, 842 F.3d at 858-59; Baum v. United States, 986 F.2d 716, 721 (4th Cir. 1993).

The analysis also does not depend on whether the conduct was that of a high-level agency official making policy or a low-level employee implementing policy. See Dalehite, 346 U.S. at 35-36, 73 S.Ct. 956. Rather, the analysis must focus solely on whether the government conduct involved choice implicating policy. Gaubert, 499 U.S. at 323, 111 S.Ct. 1267. Indeed, relying on a distinction between “day-today” actions and “policymaking or planning functions” would be inappropriate in light of the principle that “[discretionary conduct is not confined to policy or planning level. ‘It is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.’ ” Id. at 325, 111 S.Ct. 1267 (alteration omitted) (quoting Varig Airlines, 467 U.S. at 813, 104 S.Ct. 2755).

Thus, in Baum v. United States, 986 F.2d 716 (4th Cir. 1993), we ordered dismissal of a suit alleging, in relevant part, that the National Park Service negligently failed to replace a deteriorating guardrail system that broke when the plaintiffs’ car struck it. 986 F.2d at 718. We concluded that, just as a statute gave the Park Service discretion to construct the bridge without fear that courts would second-guess its design choices, the FTCA shielded the agency’s “decision of how and when to replace a major element of [that] substantial public facility.” Id. at 724; see also Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir. 1987) (holding, on similar facts, that “[w]hether [the] decision grew out of a lack of financial resources, a desire to preserve the natural beauty of the vista, a judgment that the hazard was insufficient to warrant a guardrail, or a combination of all three, ... [it] is obvious that the decision was the result of a policy judgment”).

Therefore, taking the facts alleged by Wood in this ease as defining the challenged government actions, see Gaubert, 499 U.S. at 325, 111 S.Ct. 1267, and applying the two-step analysis to them, we must determine, on an objective basis, whether the challenged government conduct involved decisions based on considerations of public policy.

Wood alleges, in essence, that pursuant to a request made by the Norfolk Sheriffs Office, the Navy authorized that Office to conduct training exercises on the Navy base in April 2012. She alleges that the Navy was negligent in failing to maintain in a safe configuration the mats on which she was injured, by failing to inspect the mats for the dangerous condition, and by failing to warn invitees, such as Wood, about the dangerous condition. In short, she makes a premises liability claim as an invitee to a Navy military base, and we must decide therefore whether these actions that she challenges are protected by the discretionary function exception.

Applying the two-step analysis to this conduct, we determine first whether the government conduct involved an element of choice, which in turn requires the determination of whether any federal statute, regulation, or policy prescribed the conduct. See Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. On this aspect of the analysis, the parties apparently agree that there was no mandate contained in any statute, regulation, or policy regarding the maintenance, inspection, and warning with regard to either the mats or the mock-ship. In responding to the government’s motion to dismiss, Wood conceded that she was unable to find any such statute, regulation, or military policy, and she does not argue otherwise on appeal. In addition, the government presented affidavits from a Navy captain, a Marine Corps colonel, and the Range Manager at Northwest Annex, stating that there is no policy directly governing such maintenance, inspection, and warning procedures when the facilities are used by a civilian law enforcement agency. Further, the Marine Corps order governing range safety does not require the military to take any specific safety precautions with respect to facilities that are to be used by civilians. Instead, it requires only that civilian agencies, who “may use [military] ranges at the discretion of the installation commander,” must “comply with the provisions of this regulation/order.” See Range Safety, Army Reg. 385-63, MCO 3570.1C (2012). And the Standard Operating Procedures that apply specifically to the Northwest Annex prescribe no actions with respect to base safety. As a consequence, the government conduct involving the safety of the mock-ship and the mats required Navy personnel to make choices or exercise judgment.

Even so, for the discretionary function exception to apply, those choices or judgments must also have been “based on considerations of public policy” and thus “of the kind that the discretionary function exception was designed to shield.” Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954. In addressing this second step of the analysis, we look to the “objective,” “general” nature of the challenged actions and decide whether they inherently involved protected policy judgments. Baum, 986 F.2d at 720-21.

We note first that the statutory scheme governing civilian use of military facilities sets out a basic policy tradeoff between permissive civilian training and constrained military resources. See Gaubert, 499 U.S. at 324, 111 S.Ct. 1267 (“[T]he general aims and policies of the controlling statute will [typically] be evident from its text”). The statutes provide that the Department of Defense may allow civilian law enforcement agencies to use Navy facilities, 10 U.S.C. § 372, and may train civilian officers “in the operation and maintenance of equipment,” id. § 373. But they also instruct that civilian use must not interfere with the nation’s “military preparedness.” Id. § 376. There can be no doubt therefore that the Navy’s first-order decision of whether to allow civilian use of its bases at all is shielded by the discretionary function exception.

In allowing civilian use of the Northwest Annex in the particular circumstances of this case, the Navy also had to make several additional decisions — each under the umbrella of its initial decision to allow civilians to use the base at all — and these decisions were necessarily informed by the same policy considerations expressed in the statutes. This is made evident by the Navy’s internal policy documents covering civilian use of the facility. See Gaubert, 499 U.S. at 324, 111 S.Ct. 1267 (“[A]n agency may rely on internal guidelines rather than on published regulations”). For example, in deciding whether to authorize use of its base by civilian officers, the Navy has chosen to require that one of those officers qualify as a Range Safety Officer, who is required to be “solely responsible for the safety” of their civilian agency while training on the base. A Navy policy manual also indicates that its officers should provide assistance to local law enforcement “at the lowest cost practicable.” Similar documents more generally set forth risk-management frameworks for all Navy decision-making. See Chief of Naval Operations Instruction 3500.39C (July 2, 2010). The common thread running through the relevant statutes and policy documents is a recognition that, whenever the Navy exercises its statutory discretion to allow civilian agencies to use its facilities, it must take into account in exercising its judgment military preparedness, the safety of the civilian agencies, and costs. This complicated balance is well illustrated here. Given the designed purpose of the mock-ship and the mats, which were intended only as backup protection for armored soldiers climbing the ship in harnesses, it could be unjustifiably costly to protect against and warn civilian trainees of the dangers arising out of uses for which the facility was not designed. See Baum, 986 F.2d at 722-24 (economic policy considerations underlying bridge construction project encompassed subsequent decisions involving bridge maintenance).

At bottom, the Navy’s decision to leave the mats near the mock-ship in a certain condition, its allegedly infrequent inspections of the mock-ship, its decision not to warn civilian trainees itself about the condition of the ship, and its decision to qualify the user’s agent as a Range Safety Officer responsible for safety each fall comfortably within that overarching policy of balancing open civilian use, civilian safety, military preparedness, and costs. And “[w]hen established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion,” as here, “it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” Gaubert, 499 U.S. at 324, 111 S.Ct. 1267 (emphasis added).

Wood argues that if the Navy’s maintenance decisions are protected here, it is difficult to see how the United States could ever be liable for injuries on government property. She cites cases from courts in other circuits that have expressed similar concerns in declining to extend the discretionary function exception to particular premises-liability claims. In our view, however, the requirement that shielded conduct be taken pursuant to specific policies expressed in federal law explains some of those courts’ reluctance to apply the discretionary function exception in the particular circumstances presented. For example, in Gotha v. United States, 116 F.3d 176,178 (3d Cir. 1997), a Navy contractor’s employee slipped and fell on a military base footpath. In the absence of any statutory, regulatory, or internal policy evidence encompassing the Navy’s decisions with respect to employee safety, the Gotha court refused to endorse the government’s theory that its conduct inherently involved balancing national security and employee safety. Id. at 181-82.

The reasoning in Gotha, however, has little application here, where the Navy’s maintenance decisions with respect to facilities used by civilian law enforcement fall within the overarching policies of a regulatory scheme that gives officers discretion in how to implement that policy. In this case, where Congress by statute and the Navy by internal policy have established a regulatory mission of making military bases available for civilian-law-enforcement training, the Navy’s decisions affecting the safety of its bases for civilian trainees should not be subjected to judicial second-guessing. Were we to hold, for example, that Wood could challenge the Navy’s decision not to place a warning sign near the mock-ship, it would open the Navy to tort liability for every similar decision made when allowing civilian law enforcement agencies to use its facilities. The threat of tort liability would become a tool to shape Navy policy, which is exactly what the discretionary function exception seeks to avoid.

Wood also contends that the district court incorrectly defined the government’s challenged conduct as “maintenance decisions regarding the [mock-ship] as an unauthorized military facility” — a description that assumed, contrary to her claim, that her use of the mock-ship was not authorized and thereby dictated the court’s decision. To be sure, while the district court did repeatedly express its assumption that the mock-ship was unauthorized, its ultimate decision did not necessarily rest on that assumption. The district court observed that “the considerations that apply to this decision are magnified when the issue is the military’s maintenance of unauthorized facilities.” Moreover, its holding was grounded centrally on the fact that the Navy exercised discretion with respect to public policy. As the court stated:

In this case, the military has declined to adopt any policy to conduct pre-training inspections in order to ensure that requested facilities are safe for civilian use. Instead, the responsibility to con-duet pre-training inspections is with the [Range Safety Officer],. The Court finds that [these matters are susceptible to policy analysis] because these day-today operational maintenance decisions regarding the condition in which military facilities are to be left in when they are not in use, implicate economic policy in that they involve considerations such as allocation of military resources.

Thus, while the district court ruled with the assumption that the mock-ship’s use was unauthorized, its reasoning applied equally to a situation where use of the mock-ship was authorized.

In any event, whether use of the mock-ship was authorized or not does not implicate whether the district court had jurisdiction under the FTCA. As we have pointed out, the permissive use of the Navy’s training facilities by civilian law enforcement is covered by policies announced in statutes, regulations, and orders, and officers’ implementation of these policies through decisions with respect to the mock-ship and the mats is therefore protected by the discretionary function exception.

At bottom, we conclude that the government’s challenged conduct here falls within the FTCA’s discretionary function exception and therefore that the district court correctly concluded that Congress did not, in the FTCA, waive the sovereign immunity of the United States for Wood’s negligence claim,

III

Wood also contends that the district court abused its discretion in denying her motion to amend the judgment under Federal Rule of Civil Procedure 59(e) to allow her to engage in jurisdictional discovery, as provided in Kerns, 585 F.3d 187. She argues in particular that the district court should have allowed discovery of whether her use of the mock-ship was unauthorized, which “weighed heavily upon the [District] Court’s analysis.”

In Kerns, we reversed an order dismissing a plaintiffs complaint under Rule 12(b)(1) because the facts supporting FTCA jurisdiction — bearing on whether the defendant was driving within the scope of her employment — were “inextricably intertwined” with the merits of the plaintiffs tort claim. 585 F.3d at 195. The Kerns decision sought to ensure that plaintiffs facing a motion to dismiss were not unfairly deprived of the additional “procedural safeguards” in Rule 56 (governing summary judgment) when the merits of their claims are bound up with jurisdictional issues. Id. at 195-96.

Kerns, however, does not apply here. As explained above, the application of the discretionary function exception does not turn on whether Wood was authorized to use the mock-ship. That fact would indeed be relevant to the merits of Wood’s tort claim. But it is irrelevant to subject matter jurisdiction. See Seaside Farm, 842 F.3d at 858-59. Accordingly, we conclude that the district court did not abuse its discretion in refusing to open discovery to the merits issue in this case.

* * *

For the reasons given, the district court’s order dismissing Wood’s complaint for lack of subject matter jurisdiction and its order denying her Rule 59(e) motion are

AFFIRMED.