Dyer v. U.S.

• Citation: 96 F.Supp.2d 725
• Decision Date: 19 May 2000
• Docket Number: No. 3:99-CV-95.,3:99-CV-95.
• Parties: Cheryll DYER, et. al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

96 F.Supp.2d 725

Cheryll DYER, et. al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. 3:99-CV-95.

United States District Court, E.D. Tennessee.

May 19, 2000.

COPYRIGHT MATERIAL OMITTED

David C. Lee, J.D. Lee, Lee, Lee and Lee, Knoxville, TN, for plaintiffs.

Joann J. Bordeaux, J. Patrick Glynn, Christina M. Humway, Henry T. Miller, David W. Ogden, Donald M. Remy, Steven M. Talson, U.S. Dept. of Justice, Torts Branch, Civ. Division, Washington, DC, for defendant.

MEMORANDUM

COLLIER, District Judge.

This matter is before the Court on the Motion to Dismiss Plaintiffs' Second Amended Complaint for Lack of Subject Matter Jurisdiction (Court File No. 24) filed by Defendant United States of America (the "Government"). In addressing this motion, the Court necessarily addresses the Government's Motion to Dismiss Plaintiffs' Complaint for Lack of Subject Matter Jurisdiction (Court File No. 4) and Motion to Dismiss Plaintiffs' Amended Complaint for Lack of Subject Matter Jurisdiction (Court File No. 13). Plaintiffs Cheryl and Rick Dyer filed a response (Court File No. 7) and an Amended Complaint (Court File No. 12) after the first motion to dismiss was filed. Plaintiffs filed a response (Court File No. 15) and a Second Amended Complaint (Court File No. 23) after the motion to dismiss the Amended Complaint was filed. They have not responded to the final motion to dismiss the Second Amended Complaint.

The Dyers claim the Government is liable under the Federal Tort Claims Act, 28 U.S.C. section 1346(b) ("FTCA"),¹ for damages resulting from the injuries Mrs. Dyer incurred while she was employed by Lockheed Martin Energy Systems, Inc. ("Lockheed") during the dismantling of a government nuclear facility at Oak Ridge, Tennessee, the K-25 nuclear facility. In its various motions to dismiss, the Government contests the subject matter jurisdiction of this Court by arguing the Dyers' claims fall within the discretionary function, misrepresentation, or government contractor exceptions to the FTCA's waiver of sovereign immunity. For the following reasons, the Court will GRANT Defendant's Motion to Dismiss Plaintiffs' Second Amended Complaint for Lack of Subject Matter Jurisdiction (Court File No. 24) and will DISMISS the other two motions (Court File Nos. 4 & 13) as MOOT.

I. STANDARD OF REVIEW

Rule 12(b)(1) motions generally come in two varieties. First, a defendant may make a facial attack that merely questions the legal sufficiency of the pleadings. In reviewing such facial attacks, a trial court takes the plaintiff's allegations in the complaint as true, similar to a Rule 12(b)(6) motion to dismiss. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994); Ohio National Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). In the second instance, a trial court is asked to consider a factual attack on the allegations giving rise to subject matter jurisdiction. In this situation, no presumption of truthfulness attaches to the plaintiff's factual allegations. RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir.1996); Ritchie, 15 F.3d at 598; Ohio National, 922 F.2d at 325; Cooley v. United States, 791 F.Supp. 1294, 1298 (E.D.Tenn.1992), aff'd sub nom. Myers v. United States, 17 F.3d 890 (6th Cir.1994).

Where facts presented before the Court give rise to a factual controversy concerning subject matter jurisdiction, the Court is required to weigh the conflicting evidence and make findings of fact to decide whether jurisdiction exists. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir.1996) (noting the district court is empowered to resolve factual disputes when necessary to address challenges to subject matter jurisdiction); RMI Titanium, 78 F.3d at 1134; Ritchie, 15 F.3d at 598; Ohio National, 922 F.2d at 325; Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915-18 (6th Cir.1986). The Court has wide discretion to allow the parties to submit affidavits, documents, and may even hold a limited evidentiary hearing to resolve disputed jurisdictional facts. Kroll v. United States, 58 F.3d 1087, 1092 n. 9 (6th Cir. 1995); Rogers, 798 F.2d at 916-18. Although district courts have considerable discretion in devising fair procedures for resolving subject matter jurisdiction issues, courts frequently look to Rule 56 for guidance when ruling on evidentiary matters under Rule 12(b)(1). Ohio National, 922 F.2d at 327. However, if the parties supplement the record with affidavits and other proof, it does not thereby convert the Rule 12(b)(1) motion into one for summary judgment under Rule 56. Rogers, 798 F.2d at 916; Cooley, 791 F.Supp. at 1298.

II. RELEVANT FACTS

Plaintiff Cheryll Dyer was employed by Lockheed as a health physics technician at the K-25 facility in Oak Ridge, Tennessee. This facility is owned by the United States and is under the jurisdiction of the United States Department of Energy. The Energy Department enters into contracts with private companies to operate the facility from time to time. The Energy Department solicits bids from private companies to operate the facility. Lockheed is the present contractor. During her employment at Oak Ridge, Mrs. Dyer was allegedly exposed to chemicals and heavy metals, and this exposure caused her to sustain, among other things, chemical encephalopathy. Mrs. Dyer first became aware of her exposure to these toxins in March 1996, when she notified her supervisor a medical test had indicated exposure to harmful substances. Plaintiffs contend Mrs. Dyer was exposed to various toxic substances including nickel material containing arsenic, cadmium and other dangerous heavy metals. The Dyers contend Mrs. Dyer was never told what materials with which she was working, and argue the Government mandated a policy of non-disclosure and misrepresentation that has continued to prevent discovery of the composition of the substances she encountered until the present time. Mrs. Dyer claims that, had she been properly informed, she would have taken the necessary precautions, including wearing a respirator, to protect herself from the toxins. At all times relevant to this litigation, Lockheed has operated in an independent contractor relationship with the Government.

During the period of Mrs. Dyer's employment at Lockheed, World War II and the Cold War were over. Mrs. Dyer also asserts she possessed a "Q" clearance,² which should have allowed her to view the classified information regarding the substances with which she worked. The Dyers claim that, as a result of her exposure to nickel and other toxic substances, Mrs. Dyer suffers from chemical encephalopathy, loss of short term memory, and continuous mental and physical distress. Mr Dyer, Mrs. Dyer's husband, claims his wife's injuries have caused him to suffer damages in the form of loss of consortium and medical expenses.

III. DISCUSSION

Plaintiffs have failed to allege a cause of action under the FTCA. That statute, in pertinent part provides:

(b)(1) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, 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.

(2) No person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States or an agency, officer, or employee of the Government, for mental or emotional injury suffered while in custody without a prior showing of physical injury.

28 U.S.C. § 1346(b). The United States Court of Appeals for the Sixth Circuit has held that, by its explicit terms, the FTCA waives the federal government's sovereign immunity only in those instances where the damages sustained were caused by the negligent or wrongful act or omission of an employee of the Government acting within the scope of his or her employment and under circumstances where the Government, if a private person, would be liable to the claimant under the law of the State where the accident occurred. Cf. United States v. Taylor, 236 F.2d 649 (6th Cir. 1956).

In their Second Amended Complaint, Plaintiffs allege the Government was engaged in an "ultrahazardous activity," including but not limited to the storage and disposal of materials used to make atomic bombs, and this activity created in the Government a non-delegable duty to ensure the activity was conducted safely. As a result of this rule of non-delegation, the Plaintiffs argue, the Government is liable for the negligence of the independent contractor, i.e. Lockheed, who employed Mrs. Dyer. Generally, the United States is not liable under the FTCA for injuries caused by the negligence of its independent contractors.³ United States v. Orleans, 425 U.S. 807, 814-15, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976); Logue v. United States, 412 U.S. 521, 526-27, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). Plaintiffs have, however, cited to the case of Mahoney v. United States, 216 F.Supp. 523 (E.D.Tenn.1962) ("Mahoney I") for the proposition the Government may be held liable for the negligence of independent contractors on the basis of a nondelegable duty arising where the Government has engaged in an ultrahazardous activity.

In Mahoney I, the plaintiff, a maintenance mechanic, sued the United States for injuries allegedly sustained while he was employed by Union Nuclear Carbide Company, an...