Bowman v. US

• Court: U.S. District Court — Middle District of Florida
• Citation: Bowman v. US, 848 F. Supp. 979 (M.D. Fla. 1994)
• Decision Date: 30 March 1994
• Docket Number: No. 90-1123-CIV-J-20.,90-1123-CIV-J-20.
• Parties: Franklin T. BOWMAN, Glenda Bowman, his wife, Carl Eugene Harris, and Kelly Harris, his wife, Plaintiffs, v. UNITED STATES of America.

848 F. Supp. 979

Franklin T. BOWMAN, Glenda Bowman, his wife, Carl Eugene Harris, and Kelly Harris, his wife, Plaintiffs, v. UNITED STATES of America.

No. 90-1123-CIV-J-20.

United States District Court, M.D. Florida, Jacksonville Division.

March 30, 1994.

Rodney S. Margol, Jacksonville, FL, for plaintiffs.

Joann J. Bordeaux, Christina Humway, Stephen M. Doyle, U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, DC, for defendant.

ORDER

SCHLESINGER, District Judge.

Before the Court is the United States' Motion to Dismiss Plaintiffs' FTCA Claims (Doc. No. 46, filed June 3, 1992). Plaintiffs' Memorandum in Opposition to Motion to Dismiss of United States of America (Doc. No. 58) was filed August 5, 1992, and the Reply Memorandum of the United States' in Support of its Motion to Dismiss Plaintiffs' FTCA Claims (Doc. No. 66) was filed August 20, 1992. United States' Request for Oral Argument on its Motion to Dismiss Plaintiffs' FTCA Claims (Doc. No. 48) was filed June 3, 1992, and the United States' Renewal of Request for Oral Argument on Motion to Dismiss (Doc. No. 109) was filed July 6, 1993. Also before the Court are the United States' Motion for Summary Judgment (Doc. No. 59, filed August 7, 1992) and the Joint Stipulation Vacating Docket Control Order and Referring the Cause to Arbitration (Doc. No. 104, filed January 28, 1993).

I. INTRODUCTION

Plaintiffs' claims against the United States are contained in Counts I and III of the Complaint (Doc. No. 1, filed December 13, 1990).¹ This is a civil action sounding in negligence seeking money damages against the United States for alleged personal injuries suffered by Franklin T. Bowman and Carl Eugene Harris, resulting from their exposure to the toxic chemical pyridine. Bowman's and Harris' wives are also plaintiffs in this action, asserting derivative claims for damages they have suffered as a result of their husbands' alleged injuries. Plaintiffs' claims against the United States are brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80.

Plaintiffs maintain that the United States was negligent in its disposal of containers of the toxic chemical pyridine. Additionally, Plaintiffs maintain that the United States was negligent for failing to warn of the existence of an unsafe condition it had created.

From 1940 through 1963, the United States Navy operated a Naval Station at Green Cove Springs, Florida. In 1963, the United States sold the former Naval Station to the City of Green Cove Springs. Two years after the City bought the property, J. Louis Reynolds purchased the property and established Reynolds Industrial Park on the site. J. Louis Reynolds transferred the property to Clay County Port, Inc. in 1981.

Bowman and Harris were instructors at National Training, Inc., teaching students to operate bulldozers, backhoes, and other heavy equipment. In 1988, National Training, Inc. operated from facilities it leased on Reynolds Industrial Park in Green Cove Springs, Florida. Bowman and Harris allege that on or about October 8, 1988, while supervising a group of students who were being trained in the use and operation of industrial land clearing equipment and machinery at Reynolds Industrial Park, numerous containers of the toxic chemical pyridine were unearthed and ruptured causing them to be exposed to the pyridine. Plaintiffs allege that the pyridine was negligently buried by the Navy.

The United States argues that, even if it was responsible for the burial of the pyridine, which it denies, Plaintiffs' claims alleging negligent burial of waste must be dismissed because they challenge discretionary judgments and choices made by the United States in connection with operating a naval shore station. The United States argues since there were no statutes, regulations, or policies prohibiting the acts which Plaintiffs seek to challenge, the discretionary function exception of the FTCA applies. Thus, the United States contends that the case must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because the Court lacks jurisdiction. The United States also argues that Plaintiffs' failure to warn claim falls within the discretionary function exception.

II. MOTION TO DISMISS PURSUANT TO RULE 12(B)(1) OF THE FEDERAL RULES OF CIVIL PROCEDURE FOR LACK OF SUBJECT MATTER JURISDICTION

Attacks on subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure come in two forms. "Facial attacks" on the complaint "require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in the complaint are taken as true for the purposes of the motion." Lawrence v. Dunbar, 919 F.2d 1525, 1528 (11th Cir.1990) (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.),²cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir. 1977))). "Factual attacks," on the other hand, challenge "the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Id.

On a facial attack, as with a Rule 12(b)(6) motion, the allegations of the complaint are taken to be true. See Lawrence, 919 F.2d at 1529 (citing Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981)). However, when the attack is factual,

the trial court may proceed as it never could under 12(b)(6) or Fed.R.Civ.P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction—its very power to hear the case—there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.

Lawrence, 919 F.2d at 1529 (quoting Williamson, 645 F.2d at 412-13 (quoting Mortensen, 549 F.2d at 891)).

A. DISCRETIONARY FUNCTION EXCEPTION

The United States cannot be sued except as it consents to be sued. See Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953). Congress, through the provisions of the FTCA, has authorized suit against the United States

for injury or loss of property, or personal injury or death 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, Congress has specifically excepted from the FTCA's limited waiver of sovereign immunity "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). This is known as the "discretionary function exception" to the FTCA.

If asserted liability under the FTCA falls within an exception, the Court lacks subject matter jurisdiction. See Boda v. United States, 698 F.2d 1174, 1176 (11th Cir.1983). Defendant contends that Plaintiffs' claims are based upon government acts or omissions which are protected by the discretionary function exception to the FTCA.

To determine whether challenged government conduct falls within the discretionary function exception, the Court must engage in a two-part inquiry. See Autery v. United States, 992 F.2d 1523 (11th Cir.1993). First, the court must look to the nature of the challenged conduct and consider whether the conduct involves an element of judgment or choice. See id. at 1526. The exception does not apply where a federal statute or regulation "specifically prescribes a course of action for an employee to follow." Powers v. U.S., 996 F.2d 1121, 1124 (11th Cir.1993) (quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991)); see Autery, 992 F.2d at 1526; see, e.g., Phillips v. United States, 956 F.2d 1071, 1074-77 (11th Cir.1992) (no discretion in Army Corps of Engineers' implementation of mandatory safety responsibilities); Dickerson, Inc. v. United States, 875 F.2d 1577, 1581-82 (11th Cir.1989) (no discretion where EPA policies specifically prescribed course of action for waste removal).

"If a government official in performing his statutory duties must act without reliance upon a fixed or readily ascertainable standard, the decision he makes is discretionary and within the discretionary function exception." Powers, 996 F.2d at 1124 (quoting Alabama Electric Cooperative, Inc. v. United States, 769 F.2d 1523, 1529 (11th Cir.1985) (quoting Miller v. United States, 710 F.2d 656, 663 (10th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 316 (1983))). The relevant inquiry is whether the controlling statute or regulation mandates that a government agent perform his or her function in a specific manner. See Autery, 992 F.2d at 1528.

Second, the court must determine whether the judgment exercised "is of the kind that the discretionary function exception was designed to shield." Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273 (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988)); see Autery, 992 F.2d at 1526-27. The discretionary function exception was enacted to protect "the discretion of the executive or administrator to act according to one's judgment of the best course." Dalehite, 346 U.S. at 34, 73 S.Ct. at 967. Its purpose is to "prevent judicial second-guessing of legislative and administrative...