Hart v. U.S.

Decision Date11 January 2011
Docket NumberNo. 10–1604.,10–1604.
PartiesBonita A. HART, as Personal Representative of the Estate of Kenneth M. Block, Deceased, Appellant,v.UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

Ronald A. Wager and Justin Matthew Scott, Aberdeen, SD, for appellant.Cheryl Schrempp DuPris, AUSA, Pierre, SD, for appellee.Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.RILEY, Chief Judge.

Bonita Hart brought this wrongful death action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671–80, against the United States. Hart asserted that a Bureau of Indian Affairs (BIA) law enforcement officer failed adequately to supervise, secure, and detain her son, Kenneth Block, after Block's arrest for federal sex crimes, resulting in Block's suicide. The district court 1 sua sponte dismissed Hart's complaint for lack of subject matter jurisdiction, holding the discretionary function exception, 28 U.S.C. § 2680(a), to the FTCA's general waiver of sovereign immunity, 28 U.S.C. § 1346(b), barred Hart's claims. Hart appeals, and we affirm.

I. BACKGROUNDA. Undisputed Facts2

In March 2006, BIA Special Agent Lawrence Robertson (S/A Robertson) interviewed Block in Sisseton, South Dakota. Three girls under the age of sixteen each reported they had sexual encounters with Block, who was then twenty years old. After initially denying the girls' allegations, Block confessed. Block informed S/A Robertson “that, when the time came, [Block] would go with [S/A Robertson] rather than being taken in handcuffs.”

In April 2006, a federal grand jury returned a three-count indictment against Block. Each count alleged sexual abuse of a minor in Indian country, in violation of 18 U.S.C. §§ 1153, 2243(a) and 2246(2)(A). A warrant for Block's arrest issued.

On April 25, 2006, S/A Robertson went to the home of Block's parents near Sisseton, arriving around 5:45 p.m. Block's eight-year-old brother was playing outside. S/A Robertson asked Block's brother to get Block. When Block arrived, S/A Robertson invited Block into S/A Robertson's car.

After shaking hands and exchanging pleasantries, S/A Robertson advised Block of the indictment and told Block an initial appearance was scheduled the next day. Block smiled and remained friendly the entire time the two men were talking. Block did not display any erratic or bizarre behavior, nor did Block appear distraught or depressed. S/A Robertson had no reason to believe Block was suicidal.

S/A Robertson inquired whether someone was available to care for Block's younger brother, and Block told S/A Robertson a relative would arrive shortly. Block asked S/A Robertson for permission to return to the house and finish cleaning up his bedroom, pointing to a window on the second floor and assuring S/A Robertson he would “be right out.” S/A Robertson agreed, and Block returned to the house. S/A Robertson informed his dispatcher he would soon be transporting Block to jail.

From his car, S/A Robertson watched Block moving around his bedroom. Block appeared to be cleaning. When Block moved out of S/A Robertson's view, S/A Robertson told Block's brother to go into the home and “tell Kenny to hurry.” The brother quickly returned and said Block “would be right out.” S/A Robertson then heard a gunshot.

S/A Robertson found Block's lifeless body behind the house. Block had shot himself in the head with a Remington 30.06 rifle. The entire encounter between S/A Robertson and Block lasted less than ten minutes.

B. Handbook

At all relevant times, the BIA Office of Law Enforcement Services' Law Enforcement Handbook (Handbook) governed S/A Robertson's conduct. The Handbook recognizes:

Officers may be confronted with situations where control must be exercised to effect arrests, overcome physical resistance, and neutralize assaults. Control may be achieved through persuasion, verbal warnings, implied or threatened use of force, or by the use of physical force. There are varying degrees of physical force that may be justified depending on the dynamics of the situation.

The Handbook “authorizes officers to use only the level of physical force which is necessary, reasonable and appropriate for achieving the desired legal objective” and tasks officers with the responsibility for “assessing each situation and using only the levels of control or physical force which are necessary, reasonable and appropriate under the circumstances. The Handbook also states, “Officers employ the use of control or physical force at the lowest level deemed necessary to achieve the objective.”

The Handbook “establishes guidelines for contact with civilians, victims, suspects, arrestees, and prisoners.” With respect to the use of restraint devices, the Handbook specifically provides:

The responsibility of an officer for the safe custody of his prisoner permits some discretion in the use of handcuffs and restraining devices. The [BIA] requires officers to exercise safety awareness by carefully restraining most prisoners who must be transported to a jail or other location.

C. Prior Proceedings

In October 2008, after exhausting all administrative remedies, Hart filed a two- count complaint against the United States under the FTCA. Count I alleges negligence, asserting S/A Robertson failed adequately to supervise, secure, and detain Block, resulting in Block's suicide. Count II asserts a violation of South Dakota's wrongful death statute, S.D.C.L. ch. 21–5, and seeks more than $2 million in compensatory damages for loss of society and companionship.

In August 2009, the United States moved for summary judgment, see Fed.R.Civ.P. 56, proffering various reasons why Hart's claims failed under governing South Dakota common and statutory law. In September 2009, Hart resisted the government's motion, likewise focusing upon South Dakota law. Neither party discussed the district court's jurisdiction.

In February 2010, the district court dismissed Hart's complaint with prejudice and denied the government's motion for summary judgment as moot. The court sua sponte held it lacked subject matter jurisdiction, because the United States had not waived sovereign immunity. The court held as a matter of law that the discretionary function exception to the general waiver of sovereign immunity in the FTCA applied.

II. DISCUSSIONA. Standard of Review

We review de novo a district court's decision to dismiss a complaint for lack of subject matter jurisdiction. See Great Rivers Habitat Alliance v. FEMA, 615 F.3d 985, 988 (8th Cir.2010).

B. Analysis

1. Sovereign Immunity/Discretionary Function Exception

The relevant law of sovereign immunity, which the district court correctly summarized, is clear:

The United States is immune from suit unless it consents. Congress waived the sovereign immunity of the United States by enacting the FTCA, under which the federal government is liable for certain torts its agents commit in the course of their employment.

The United States is, nevertheless, immune if an exception applies. Under 28 U.S.C. § 2680(a), the FTCA does not waive immunity for “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.”

A two-part test determines when the discretionary function exception applies. First, the conduct at issue must be discretionary, involving an element of judgment or choice. The second requirement is that the judgment at issue be of the kind that the discretionary function exception was designed to shield. Because the exception's purpose is to prevent judicial second-guessing of government decisions based on public policy considerations, it protects only those judgments grounded in social, economic, and political policy.

Riley v. United States, 486 F.3d 1030, 1032 (8th Cir.2007) (citations and internal marks omitted). Where the United States has not waived sovereign immunity under the FTCA, the district court lacks subject matter jurisdiction to hear the case. See Green Acres Enters. v. United States, 418 F.3d 852, 857 (8th Cir.2005); see also Dykstra v. United States, 140 F.3d 791, 795 (8th Cir.1998) (“To the extent an alleged act falls within the discretionary function exception, a court lacks subject matter jurisdiction.”).

2. Burden of Proof Irrelevant

As a threshold matter, Hart argues the district court erred in sua sponte ruling on the issue of subject matter jurisdiction. Hart asserts the United States bears the burden to prove the discretionary function exception to the FTCA applies. Based upon that premise, Hart opines [t]he government was never forced to prove that the discretionary function exception applies so the District Court, in essence, shifted that burden to [Hart] who is now forced to prove that the exception does not apply.” Hart concludes reversal is appropriate but cites no apposite legal authority for her conclusion.

Assuming without deciding Hart is correct that the government bears the burden to prove the discretionary function exception to the FTCA applies,3 the district court nonetheless did not err in sua sponte ruling on the issue of subject matter jurisdiction. It is well established that a court has a special obligation to consider whether it has subject matter jurisdiction in every case. See Clark v. Baka, 593 F.3d 712, 714 (8th Cir.2010) (per curiam). This obligation includes the concomitant responsibility “to consider sua sponte [the court's subject matter] jurisdiction ... where ... [the court] believe[s] that jurisdiction may be lacking.” Id. As indicated, if the discretionary function exception applies, the United States has not waived sovereign immunity and there is no subject matter jurisdiction. See Green Acres, 418 F.3d at 857. Therefore, the district court did not err in sua sponte deciding whether the discretionary function exception applied in this case...

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