Colburn v. United States
| Decision Date | 26 July 2022 |
| Docket Number | CIVIL 2:22cv114 |
| Parties | JULIE M. COLBURN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
This matter is before the Court on Defendant United States of America's (the "Government") motion to dismiss Plaintiff Julie M. Colburn's ("Colburn") complaint for lack of subject matter jurisdiction, and alternatively, failure to state a claim upon which relief may be granted. ECF No. 7. For the reasons stated below, the Government's Motion is GRANTED, and this action is hereby DISMISSED in its entirety.[1]
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts underlying this case are largely undisputed. This action arises out of a motor vehicle crash that occurred on Naval Amphibious Base Little Creek ("the Naval Base") in Virginia Beach, Virginia on September 12 2020. At approximately 2:15 p.m., Colburn lawfully traveled onto the Naval Base after clearing an entry control point at Gate 5. Immediately after clearing the gate, Colburn began traveling northbound away from the gate. At the same time, an unauthorized vehicle breached the entry control point at Gate 5, failing to stop when hailed by a Naval Security Force officer. In response, gate officers deployed a final denial (HACS) barrier to prevent further access by the unauthorized vehicle. The barrier deployed underneath Colburn7s car as she passed over it, stopping her car, as well as the unauthorized vehicle.
On March 10, 2022, Colburn brought the instant action against the United States under the Federal Tort Claims Act (WFTCA"), 28 U.S.C. § 2671 et. seq. for alleged injuries suffered as a result of the Navy's actions. Colburn alleges that the actions by Naval law enforcement officers were negligent, and that their deployment of the barrier constituted assault. Defendant timely filed the instant motion to dismiss for lack of subject matter jurisdiction. Plaintiff did not file a responsive brief. Accordingly, this matter is ripe for review.
II. STANDARD OF REVIEW
Rule 12(h)(3) of the Federal Rules of Civil Procedure provides that ™[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3). A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may attack a complaint on its face asserting that the complaint fails to allege facts upon which the court can base jurisdiction, or it may attack the truth of any-underlying jurisdictional allegations contained in the complaint. Beck v. McDonald, 848 F.3d 262, 270 (4th Cir. 2017); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) . Here, Defendant asserts a facial challenge. ECF No. 8, at 2.
When a defendant advances a facial challenge to a complaint "the plaintiff, in effect, is afforded the same procedural protection as [s]he would receive under a Rule 12(b)(6) consideration." Adams, 697 F.2d at 1219. The court must therefore "accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff." Kensington Volunteer Fire Dep't, Inc. v. Montgomery County, 684 F.3d 462, 467 (4th Cir. 2012) (citation and internal quotation marks omitted) . However, “[t] he burden of alleging facts sufficient to establish . . . subject-matter jurisdiction lies, of course, squarely with the plaintiff." SunTrust Bank v. Village at Fair Oaks Owner, LLC, 766 F.Supp.2d 686, 688 (E.D. Va. 2011) (citing Pinkley, Inc. v. City of Frederick, Md., 191 F.3d 394, 399 (4th Cir. 1999)); see also Frankel v. United States, 358 F.Supp.3d 537, 540 (E.D. Va. 2019) ("The party asserting subject matter jurisdiction bears the burden of proving that such jurisdiction exists.").
III. DISCUSSION
"Absent a statutory waiver, sovereign immunity shields the United States from a civil tort suit." Kerns v. United States, 585 F.3d 187, 193-94 (4th Cir. 2009). Enacted in 1946, the FTCA serves as a limited waiver of sovereign immunity, permitting suit against the United States for "certain torts committed by federal employees." FDIC v. Meyer, 510 U.S. 471, 475 (1994). The FTCA grants jurisdiction to district courts under specifically prescribed circumstances, and "the circumstances of [the United States'] waiver must be scrupulously observed and not expanded by the court." Kokotis v. United States Postal Service, 223 F.3d 275, 278 (4th Cir. 2000) . Furthermore, any "ambiguities are resolved in favor of the sovereign." Robb v. United States, 80 F.3d 884, 887 (4th Cir. 1996).
For a federal district court to have jurisdiction over tort claims brought against the United States, the claims must be "actionable under [28 U.S.C.] § 1346(b)." Meyer, 510 U.S. at 477. Actionable claims under § 1346(b) must allege six statutory elements, which are that the claim be:
[1] against the United States, [2] for money damages, ... [3] for injury or loss of property, or personal injury or death [4] caused by the negligent or wrongful act or omission of any employee of the Government [5] while acting within the scope of his office or employment, [6] 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); Brownback v. King, 141 S.Ct. 740, 745 (2021). "Because waivers of sovereign immunity must be strictly construed, the plaintiff bears the burden of demonstrating jurisdiction and showing that none of the FTCA's exceptions apply." Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017) (internal citations omitted). Relevant here is the *discretionary function" exception to the FTCA.
Congress has not waived sovereign immunity for claims "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 purpose of the discretionary function exception is to prevent "judicial second-guessing" of legislative and administrative decisions grounded in policy. United States v. Gaubert, 499 U.S. 315, 323 (1991). Consistent with this purpose, the discretionary function exception "protects only governmental actions and decisions based on considerations of public policy." Berkovitz by Berkovitz v. United States, 486 U.S. 531, 537 (1988).
The Supreme Court has articulated a two-step test to determine whether the discretionary function exception applies to challenged Government actions. First, the exception “covers only acts that are discretionary in nature," and "involv[e] an element of judgment or choice." Gaubert, 499 U.S. at 322. "Government conduct does not involve an element of judgment or choice, and thus is not discretionary, if a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow, because the employee has no rightful option but to adhere to the directive." Id.; see also Lins v. United States, 847 F. App'x. 159, 163 (4th Cir. 2021); Rich v. United States, 811 F.3d 140, 144 (4th Cir. 2015).
Second, "assuming the challenged conduct involves an element of judgment," only actions "that the discretionary function exception was designed to shield" are protected. Gaubert, 499 U.S. at 322-23. Therefore, the challenged decision must be "susceptible to public policy analysis." Id. at 325 (internal quotations omitted). In this context, "public policy" is defined as being "grounded in the social, economic or political goals of a statute and regulations." Id. at 316. The inquiry "must focus on the inherent, objective nature of the challenged decision," Baum v. United States, 986 F.2d 716, 721 (4th Cir. 1993), "not on the [officer's] subjective intent in exercising the discretion." Gaubert, 499 U.S. at 325. Moreover, "when a statute, regulation, or agency guideline permits a government agent to exercise discretion, 'it must be presumed that the agent's acts are grounded in policy when exercising that discretion.'" Suter v. United-States, 441 F.3d 306, 311 (4th Cir. 2006) (quoting Gaubert, 499 U.S. at 324). Consequently,w[f]or a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged [discretionary] actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime." Gaubert, 499 U.S. at 324-25.
The Fourth Circuit has never squarely addressed whether a military official's defensive response to an unauthorized vehicle entering a military base triggers the discretionary function exception. However, in Rutherford v. United States, the Eleventh Circuit held that the discretionary function exception protected: (1) an Army base's gate guard's decision to raise a retractable steel barrier; and (2) the guard's failure to make efforts to ensure that no other vehicle would be directly affected by deployment of the barrier. 760 F. App'x. 787 (11th Cir. 2019).
In that case, plaintiff Shannon Rutherford, a civilian employee at the Army base, sued under the FTCA after she was injured trying to leave the base. As she was proceeding through the exit side of the gate, an unauthorized vehicle had entered through the other side, and instead of turning around to exit the base as directed by the gate officer, the unauthorized vehicle continued towards the base. In response, the officer deployed a retractable barrier that blocked both the inbound and outbound lanes of traffic. Notably, the officer did not take action to clear both lanes of traffic before deploying...
To continue reading
Request your trial