Dunaway v. U.S., Civ.A. 98-2035.
| Decision Date | 02 September 1999 |
| Docket Number | No. Civ.A. 98-2035.,Civ.A. 98-2035. |
| Citation | 136 F.Supp.2d 576 |
| Parties | Timothy K. DUNAWAY v. UNITED STATES Of America, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Irving Jay Warshauer, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, LA, for Timothy K. Dunaway.
Craig Joseph Robichaux, Talley, Anthony, Hughes & Knight, LLC, Mandeville, LA, Gustave A. Fritchie, III, Irwin, Fritchie, Urquhart & Moore, L.L.C., New Orleans, LA, for Rodney Strain.
ORDER AND REASONS
Before the Court is defendant, United States' motion to dismiss this case for lack of subject matter jurisdiction, or alternatively for summary judgment. The United States claims it has not waived sovereign immunity for the conduct in issue. The Court agrees, and the defendant's motion for summary judgment is granted.
On April 12, 1998, Timothy Dunaway ran aground on a sandbar that had formed in the Pearl River Navigational Canal.1 The United States Army Corps of Engineers completed the canal in 1958, pursuant to the authorization conferred by the River and Harbor Act of 1935. It designed the waterway to provide a minimum depth of 7 feet for navigation from the mouth of the West Pearl River to the vicinity of Bogalusa, Louisiana. The waterway was constructed primarily to facilitate commercial traffic, but commercial traffic declined significantly after 1964. In 1975, the Corps discontinued maintenance dredging for several years and placed the project in limited operational status with reduced funding and maintenance. Subsequently, the project sponsor requested that tests be performed regarding the feasibility of reopening the project. The results indicated that dredging was needed, and the United States dredged to reopen the waterway to commercial traffic on two occasions in 1988 and 1989.
In 1991, an Environmental Impact Statement was performed to assess the potential harm of dredged materials. A final EIS issued in 1994, and environmental litigation seeking declaratory and injunctive relief against dredging the waterway was filed in January of 1995. On May 25, 1995, the United States District Court for the Eastern District of Louisiana issued a preliminary injunction against dredging in order to prevent irreparable harm to the ecosystem. The same year, Congress restricted dredging funds and placed the project in caretaker status. It allocated funds ($280,000.00) for maintenance of the project in caretaker status and correction of safety problems at the project locks.
In March of 1998, the parties to the injunction proceeding submitted a stipulated order of dismissal, ending the injunction. Thus, the Corps was enjoined from dredging the waterway from late May 1995 to March 1998. In April of 1998, Dunaway was injured when his motorboat hit a submerged sandbar in the canal. On July 10, 1998, Dunaway sued the United States, alleging that the United States was negligent in failing to mark, warn of or remove the sandbar. Dunaway thereafter amended his complaint to include the Sheriff of St. Tammany, Rodney Strain. Strain filed a cross-claim against the United States, alleging that the United States had a duty to maintain the canal and to warn of, mark, or remove obstructions such as the sandbar.
The United States now moves the Court to dismiss the case against it for lack of subject matter jurisdiction. The United States contends that the claims challenge discretionary conduct for which it has not waived sovereign immunity. The United States moves in the alternative for summary judgment on the same grounds.
The United States' motion shall be treated as one for summary judgment, because this Court has considered matters outside the pleadings.
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. See FED.R.CIV.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in her favor." Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The moving party bears the burden of establishing that there are no genuine issues of material fact.
If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325, 106 S.Ct. at 2554; see also Lavespere, 910 F.2d at 178. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
Generally, the United States is immune from suit unless it waives sovereign immunity. See United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The Federal Tort Claims Act ("FTCA") was enacted in order to allow persons to sue the United States for injury, but it is subject to various exceptions such as the discretionary function exception. See 28 U.S.C. § 2680.2 The discretionary function exception provides:
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute of regulation be valid, or 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), emphasis added. The exception thus eliminates any waiver of immunity from suit for acts that "involv[e] an element of judgment or choice[,]" which is grounded in economic, political or social policy. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991), quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988). An inquiry into what falls under the discretionary function exception must focus on the nature of the act, rather than the status of the actor. See United States v. Varig Airlines, 467 U.S. 797, 813, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984). The requirement of judgment or choice is not satisfied, however, if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," because the employee has no choice but to follow the course of action. Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-9.
The Court must therefore employ a two-step inquiry to determine whether conduct falls within the discretionary function exception. The Court determines (1) whether the challenged conduct involves an element of judgment or choice; and, (2) whether the judgment at issue is the kind the discretionary function exception was designed to shield, that is, whether it is grounded in social, economic or political public policy. See id., Varig, 467 U.S. at 813, 104 S.Ct. at 2764; ALX El Dorado, Inc. v. Southwest Savings & Loan Ass'n., 36 F.3d 409, 411 (5th Cir.1994) (). When a governmental policy such as a statute, guideline, or regulation allows an agent to exercise discretion, courts may presume that the agent's acts are grounded in policy in the exercise of that discretion. See Gaubert, 499 U.S. at 324, 111 S.Ct. at 1274. On the other hand, courts may conclude that the failure to act, although discretionary is not "susceptible" to the policy considerations requisite to invoke the shield of the discretionary function exception. Id. at 325, 111 S.Ct. at 1275. The discretionary function exception was confected to protect only those judgments based on public policy, because its purpose is to "prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Varig, 467 U.S. at 814, 104 S.Ct. at 2765; see Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959.
Although it is not expressly written into the Suits in Admiralty Act ("SAA"), 46 U.S.C.A. § 741, et seq., under which this suit is filed, the Fifth Circuit has applied the discretionary function exception to the SAA. See Baldassaro v. United States, 64 F.3d 206, 208 (5th Cir.1995); Wiggins v. United States, 799 F.2d 962 (5th Cir.1986). Here, the relevant inquiry is whether the failure to act by the Corps of Engineers was protected by the discretionary function exception.
The Corps argues that the decision not to warn of, mark or remove the sandbar in the canal falls squarely within the discretionary function exception. The Corps enjoys wide latitude, it asserts, in deciding whether and how to deal with submerged obstructions such as the sandbar at issue.
The United States does not ensure the safe navigation of any waterway. See Canadian Pacific Ltd. v. United States, 534 F.2d 1165 (5th Cir.1976); In re Lloyd's Leasing Ltd., 764 F.Supp. 1114, 1138 (S.D.Tex.1990). Further, the United States has no duty to establish aids to navigation. See Indian Towing v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Tringali Bros. v. United States, 630 F.2d 1089, 1090 (5th Cir. Unit A, 1980) ().
Because the United States has no duty to...
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