United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
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. 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).
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).
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.
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.
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).
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).
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
[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 ...