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Burgess v. United States

United States District Court, D. Maryland, Southern Division

December 30, 2019

JO ANN BURGESS, Plaintiff,


          Paul W. Grimm United States District Judge.

         Plaintiff Jo Ann Burgess filed suit against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. She alleged that she was injured while walking on the sidewalk at the Patuxent River Naval Air Station when she was struck by a loose fire hose and nozzle, which was dragging behind a fire truck, Engine 134, owned by the United States Department of Defense. Compl. 2, ECF No. 1. Plaintiff alleges negligence on the part of the Department of the Navy employees for failure to properly secure the hose and for allowing the hose to come loose and drag behind the fire truck. Compl. 3. Plaintiff alleges, and the Government does not here contest, that Plaintiff complied with the terms of the FTCA, 28 U.S.C. § 2675, by first filing a claim with the Office of the Judge Advocate General.[1] Compl. 2. The Government has moved to dismiss for lack of subject matter jurisdiction on the basis that the employees' actions fall under the discretionary function exception of the FTCA, 28 U.S.C § 2680(a), and consequently, Plaintiff's claims are barred by sovereign immunity. Def.'s Mot. Mem. 1-2, ECF No. 27-1. However, because the Plaintiff has adequately alleged that the negligent conduct of the Government employees was not the byproduct of a discretionary policy judgment, I will deny the Government's motion to dismiss. The parties fully briefed the motion (ECF Nos. 27, 33, 38), and a hearing is not necessary. See Loc. R. 105.6 (D. Md. 2018).

         Standard of Review

         Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal of a plaintiff's complaint due to lack of subject matter jurisdiction, asserting, in effect, that the plaintiff lacks any “right to be in the district court at all.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012). “Jurisdiction of the lower federal courts is . . . limited to those subjects encompassed within a statutory grant of jurisdiction.” Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 701 (1982). Because subject matter jurisdiction involves the court's power to hear a case, it cannot be waived or forfeited, and courts have an independent obligation to ensure that subject matter jurisdiction exists. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). The burden of establishing subject matter jurisdiction rests with the plaintiff. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The district court should grant a 12(b)(1) motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Balfour Beatty Infrastructure, Inc. v. Mayor & City Council of Balt., 855 F.3d 247, 251 (4th Cir. 2017) (quoting Evans, 166 F.3d at 647).

         A defendant may challenge the district court's subject matter jurisdiction in two ways. See Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). First, a defendant may raise a facial challenge, alleging “that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Under such a challenge, the court takes the complaint's allegations as true. Kerns, 585 F.3d at 192. Alternatively, a defendant may raise a factual challenge, asserting that the jurisdictional allegations in the complaint are untrue. See Id. In that case, the court may consider evidence outside of the pleadings without converting the motion to one for summary judgment. Id.

         The Government does not state in its motion whether it brings a facial or factual challenge. However, I will construe the motion as a facial challenge, because the Government is essentially arguing that the discretionary function exception precludes jurisdiction even on the facts set forth in Plaintiffs complaint. Accordingly, I will take the facts alleged in the complaint as true and deny the motion if the complaint alleges sufficient facts to invoke subject matter jurisdiction. Kerns, 585 F.3d at 192.


         “The United States, as sovereign, is immune from suit save as it consents to be sued.” United States v. Sherwood, 312 U.S. 584 (1941); see also Kerns, 585 F.3d at 193-94 (“Absent a statutory waiver, sovereign immunity shields the United States from a civil tort suit.”). In the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., Congress “waived the sovereign immunity of the United States for certain torts committed by federal employees” within the scope of their employment. Kerns, 585 F.3d at 194 (quoting Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994)). “The FTCA, as a waiver of sovereign immunity, is strictly construed, and all ambiguities are resolved in favor of the sovereign.” Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996).

         However, the FTCA lists several exceptions, under which the United States does not waive its sovereign immunity and consent to be sued. 28 U.S.C. § 2680. One of these is the discretionary function exception, which exempts from the waiver of sovereign immunity

[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.

28 U.S.C. § 2680(a). With this exception, “Congress wished to prevent judicial ‘second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” United States v. S.A Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). If the discretionary function exception applies, the United States has not waived sovereign immunity, and the court lacks subject matter jurisdiction. Williams v. United States, 50 F.3d 299, 304-05 (4th Cir. 1995).

         Courts undertake a two-tier analysis in order to determine whether the discretionary function exception applies. First, the Court must consider “whether the governmental action complained of involves an element of judgment or choice.” Baum v. United States, 986 F.2d 716, 720 (4th Cir. 1993) (internal quotation marks omitted) (citing Berkovitz v. United States, 486 U.S. 531, 536 (1988); United States v. Gaubert, 499 U.S. 315, 322 (1991); Piechowicz v. United States, 885 F.2d 1207, 1211 (4th Cir. 1989)). As the Fourth Circuit has instructed,

[t]he inquiry boils down to whether the government conduct is the subject of any mandatory federal statute, regulation, or policy prescribing a specific course of action. If such a mandatory statute, regulation, or policy applies, then the conduct involves no legitimate element of judgment or choice and the function in question cannot be said to be discretionary. In that case the government actor “has no rightful option but to adhere to the directive, ” and if the plaintiff can show that the actor ...

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