Bell v. U.S., 96-2107

Decision Date15 October 1997
Docket NumberNo. 96-2107,96-2107
Citation127 F.3d 1226
Parties97 CJ C.A.R. 2359 Bobby BELL, Kathleen Bell, and Sunwest Bank of Albuquerque, N.A., as Conservator of the Estate of Joseph Bell, a minor, Plaintiffs--Appellants, v. UNITED STATES of America, Defendant--Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Janet K. Santillanes (James T. Roach and Nancy L. Garner with her on briefs), Albuquerque, NM, for Plaintiffs--Appellants.

Phyllis A. Dow, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with

her on brief), Albuquerque, NM, for Defendant--Appellee.

Before PORFILIO, McWILLIAMS and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Plaintiffs brought this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2674, for personal injuries Joseph Bell sustained while diving at Ute Reservoir. While diving at the reservoir, Bell, then fourteen years old, allegedly hit his head on a submerged dirt embankment covering a pipeline. His injury rendered him a quadriplegic. Plaintiffs allege that Bell was injured by the negligence of the Department of Interior's Bureau of Reclamation (the "Bureau"), which had provided engineering services to the state of New Mexico for an expansion of the reservoir. Finding that defendant's actions fell within the discretionary function exception to the FTCA, the district court granted defendant's motion to dismiss for lack of subject matter jurisdiction. We reverse.


Ute Reservoir is owned and operated by New Mexico. In the early 1980s Ute Dam was modified to increase the volume of water in the reservoir. The Bureau entered into a contract with the New Mexico Interstate Stream Commission (the "Commission") to provide the necessary engineering services. Specifically, the Bureau agreed to "prepare designs, technical specifications and engineering estimates necessary for the installation of spillway gates on Ute Dam and to furnish engineering services to the Commission, including technical advice, engineering examinations, inspection and field supervision of construction, and foundation investigation, as necessary." Appellants' App. at 15.

Both parties agreed in an amended contract that instead of preparing designs and technical specifications for the spillway gates as called for in the original contract, the Bureau should carry out similar work for a labyrinth spillway and raised earth embankment. Id. at 37. Pursuant to its contractual obligations, the Bureau subsequently submitted to the Commission a detailed set of specifications for the labyrinth spillway and earth embankment. See id. at 41. Incorporating specifications for these projects, the Bureau then prepared contract documents between the Commission and KNC, Inc., the Commission's chosen general contractor. The Bureau was not a party to the agreement between the Commission and KNC, but by the terms of its contract with the Commission, the Bureau was to "administer" the Commission-KNC contract. See id. at 33, 48.

Under its contract with the Commission, KNC was to modify the dam in "strict accordance" with the Bureau's specifications. Id. at 48. Consistent with the Bureau's duty to supervise construction of the labyrinth spillway and raised dirt embankment, id. at 33-34, 37, KNC's contract contemplated that the Bureau, through its designated project construction engineer, would oversee the general contractor's work so as to ensure compliance with the listed specifications. See id. at 29, 69. 1

The specifications contain certain provisions regarding a pipeline running through the dam into an "impervious borrow area," a location from which fill material was to be taken for the purpose of raising the height of the dam. Id. at 30, 43, 199. Bureau personnel were apparently aware that the borrow area would likely be submerged eventually. Id. at 199. The KNC-Commission contract required the contractor to keep the pipeline in service during construction. Id. at 43. Upon proper notice, however, the contractor could shut the pipeline down for up to two weeks. Id. In fact, KNC would have to shut down the pipeline during construction because the Bureau's engineering specifications required the contractor to relocate the pipeline--either temporarily or permanently--during excavation of the borrow area.

To facilitate excavation in the impervious borrow area at the locations designated by the Engineer, the Contractor shall either temporarily relocate the water pipeline during excavation in the impervious borrow area and replace the water pipeline in the same location following the excavation as approved by the Engineer; or the Contractor shall permanently relocate the water pipeline with like kind around the perimeter of the impervious borrow area at a location as approved by the Engineer.

Id. at 43-44.

During construction, however, the project engineer allowed KNC to leave the pipeline in place. As a result, excavation on both sides of the pipeline created a bench approximately fifteen to twenty feet wide and rising some four to eight feet above the bottom of the borrow pit. See id. at 97. The pit and bench were eventually submerged, the top of the bench lying just fifteen to thirty inches below the surface of the reservoir. See id. at 97-98.

Plaintiffs allege that the Bureau negligently failed to ensure that the work on Ute Reservoir was done according to the Bureau's specifications, as contained in the KNC-Commission contract. Specifically, they assert that the Bureau's construction engineer, Donald Barron, was negligent in failing to follow the Bureau's design specifications as they related to the pipeline.

In response to plaintiffs' complaint, the United States moved to dismiss for lack of subject matter jurisdiction arguing that the decision not to relocate the pipeline was discretionary and thereby protected from liability under the discretionary function exception to the FTCA. See 28 U.S.C. § 2680(a). The district court agreed that the Bureau's actions fell within the scope of this exception, and consequently granted the government's motion to dismiss.


As a preliminary matter, we consider the procedural posture of this case. "As a general rule, a 12(b)(1) motion to dismiss cannot be converted into a motion for summary judgment under Rule 56." Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir.1987). However, a well-recognized exception to this rule requires the conversion of a Rule 12(b)(1) motion to a Rule 56 or 12(b)(6) motion "[i]f the jurisdictional question is intertwined with the merits of the [plaintiff's] case." Id. "[T]he determination of whether the FTCA excepts the government's actions from its waiver of sovereign immunity involves both jurisdictional and merits issues." Redmon v. United States, 934 F.2d 1151, 1155 (10th Cir.1991). Exercising our plenary power, we treat the government's motion to dismiss as a Rule 56 motion for summary judgment. See Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997); Redmon, 934 F.2d at 1155.

Summary judgment should be granted when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We view the evidence in the light most favorable to the nonmoving party. Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). The substantive law at issue determines which facts are material in a given case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.

The governing law in this case, the FTCA, provides a limited waiver of the federal government's sovereign immunity. The FTCA allows civil claims against the United States for injuries

caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b). However, the FTCA preserves the government's immunity against claims based on its performance of discretionary functions:

The provisions of this chapter and section 1346(b) of this title shall not apply to--

(a) Any claim ... 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). The discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984). Where the governmental conduct at issue falls within the discretionary function exception, the district court lacks subject matter jurisdiction to hear the suit. Tippett, 108 F.3d at 1196.

Whether the exception applies "presents a threshold jurisdictional determination which we review de novo," Domme v. United States, 61 F.3d 787, 789 (10th Cir.1995), using a two-part test announced in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, we determine whether the governmental conduct at issue "is a matter of choice for the acting employee." Id. at 536, 108 S.Ct. at 1958. "[C]onduct cannot be discretionary unless it involves an element of judgment or choice. Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id. (citation omitted). In such a situation, "the employee has no rightful option but to...

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