Demery v. U.S. Dept. of Interior
| Decision Date | 20 February 2003 |
| Docket Number | No. A4-01-117.,A4-01-117. |
| Citation | 246 F.Supp.2d 1060 |
| Parties | Raphael DEMERY, Plaintiff, v. UNITED STATES DEPARTMENT of the INTERIOR, and the Bureau of Indian Affairs, Defendant. |
| Court | U.S. District Court — District of North Dakota |
Debra L. Hoffarth, Pringle & Herigstad, P.C., Minot, ND, for plaintiff.
David L. Peterson, Lance Daryl Schreiner, Tracy Vigness Kolb, Zuger Kirmis & Smith, Bismarck, ND, for defendant.
The plaintiff, Raphael Demery, brought this action against the United States Department of the Interior [hereinafter referred to as DOI] pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) for the wrongful death of his wife, Linda Demery. He seeks to recover damages from the DOI, attributing his wife's death to the negligence of Bureau of Indian Affairs [hereinafter referred to as BIA]. For the purposes of this action, the Department of the Interior and the Bureau of Indian Affairs are one-in-the-same. The DOI filed a motion for dismissal pursuant to Rule 56 of the Federal Rules of Civil Procedure, asserting that it is immune from suit under the discretionary function exception to the Federal Tort Claims Act. For reasons outlined below, the Court grants the motion.
The BIA operated an aeration system on Belcourt Lake during the winter months of
1998 and 1999 that kept a portion of the lake from freezing over. It erected signs at two entrances to the lake that warned "Danger, open water." It built a berm of snow around the open water. It also marked the open water with lath, red flags, and reflector tape. The flags, which were approximately 10 inches square and stapled to lath approximately 3^ to 4 feet in length, were placed between 30 and 50 feet apart. The actual number of flags that were placed on the lake is unclear.
A snowmobile trail was constructed in
1999 that crossed a portion of Belcourt Lake. Estimates placed the trail approximately 100 feet west of the lake's open water. BIA personnel were aware of the trail's existence but were not responsible for its maintenance.
On March 7, 1999, Linda Demery drowned after a snowmobile on which she was a passenger drove into the open water on Belcourt Lake. Linda's husband, Raphael Demery [hereinafter referred to as Demery], filed a wrongful death claim pursuant to the Federal Tort Claims Act [hereinafter referred to as FTCA] with the BIA on March 5, 2001. His claim was subsequently referred to the DOI, which, in a letter-opinion dated October 17, 2001, denied the claim on the grounds that Demery had failed to establish a cognizable claim under the FTCA.
On November 21, 2001, Demery filed an FTCA claim with this Court, alleging Linda's accident was caused by the BIA's failure to properly mark and warn the public of the dangers posed by open water on Belcourt Lake. The DOI filed a motion for dismissal on November 8, 2002, asserting that it is immune from suit under the discretionary function exception to the FTCA. In his response dated December 23, 2002, Demeiy claims that the DOI's motion is untimely under the Court's Scheduling Order of March 22, 2002, and that the discretionary function exception is inapplicable to the facts of this case. The DOI filed a reply in support of its motion on January 9, 2003.
The Court will grant a motion for summary judgment if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (). If the defendant can show that there is no issue as to any material fact, then the plaintiff must "set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e); see also Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. A mere trace of evidence supporting the plaintiffs position is insufficient—the facts must generate evidence from which a jury could reasonably find for the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
It is apparent from the record that Demery has exhausted his administrative remedies, a prerequisite to filing an FTCA claim in federal court. See 28 U.S.C. § 2825(a). Before determining whether the discretionary function exception is applicable, the Court must first address Demery's contention that the DOI's motion is untimely.
The Court's Scheduling Order instructed the parties to file threshold motions by October 1, 2002. Demery asserts that the DOI's motion should be denied because it raises a threshold issue and was filed after October 1. The DOI acknowledges that its motion challenges jurisdiction, a threshold issue, but maintains that it should not be precluded from making such a challenge. The Court agrees.
It is axiomatic that the parties cannot confer jurisdiction on a federal court that has not been vested in that court by the Constitution and Congress.1 "This means that the parties cannot waive lack of jurisdiction by express consent, or by conduct, or even by estoppel; the subject matter jurisdiction of the federal courts is too basic a concern to the judicial system to be left to the whims and tactical concerns of the litigants." 13 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3522, at 68-69 (1984); see e.g., Sosna v. Iowa, 419 U.S. 393, 398, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975) (); Williams v. Rogers, 449 F.2d 513, 518 (8th Cir.1971) (); Macdiarmid v. Lawbar Petroleum 456 F.Supp. 503, 504 (W.D.Tex.1978) ().
The DOI's compliance with the Scheduling Order or lack thereof is not dispositive in this instance. Although it is preferred that the parties, in the interests of judicial economy, address jurisdictional issues early in the proceedings, they are not necessarily precluded from challenging the existence of federal jurisdiction later in the proceedings by virtue of the Scheduling Order. The discretionary function exception raised by the DOI in its summary judgment motion is a jurisdictional defense. See Johnson v. U.S., Dept. of Interior, 949 F.2d 332, 335 (10th Cir.1991). As the Court cannot proceed unless it has jurisdiction, it must review the DOI's motion on its merits.
It is well-established that Congress has waived the sovereign immunity of the United States by giving district courts jurisdiction over certain tort actions. 28 U.S.C. & sect; 1346(b). However, Congress has excepted from this limited waiver "[a]ny 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). If a case falls within this statutory exception to the Federal Tort Claims Act, the Court lacks subject matter jurisdiction. See Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984) cert. denied, 471 U.S. 1125, 105 S.Ct. 2655 (1985).
"Though discretionary function is a difficult concept to specifically define, the Supreme Court has stated that it includes initiation of programs and activities as well as determinations made by executives or administrators in establishing plans, specifications or schedules of operations." E. Ritter & Co. v. Department of Army, Corps of Engineers, 874 F.2d 1236, 1240 (8th Cir.1989). The discretionary function exception prohibits any claim against the United States that is 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)). It "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." Dykstra v. US Bureau of Prisons, 140 F.3d 791, 795 (8th Cir.1998). Its purpose is to prevent "judicial second-guessing of legislative and administrative decisions grounded in social, economic, and policy through the medium of an action in tort." United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). When properly construed, it "protects only governmental actions and decisions based on considerations of public policy." Id. See Kane v. U.S., 15 F.3d 87, 89 (8th Cir.1994) (). Its application is, therefore, a jurisdictional issue which precedes any negligence analysis. Johnson v. U.S., Dept. of Interior, 949 F.2d 332, 335
The applicability of the discretionary function exception is governed by the nature of the conduct at issue, rather than the status of the actor. Berkovitz v. U.S., 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). When examining the nature of the challenged conduct, the Court must first inquire as to whether the action is a matter of choice for the acting Government employee. Assuming that the challenged conduct does involve an element of judgment or choice, the Court must then determine whether that judgment "is of the kind that the discretionary function exception was designed to shield." Id.
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