Gotha v. U.S.

• Decision Date: 28 May 1997
• Docket Number: No. 96-7442,96-7442
• Citation: 115 F.3d 176
• Parties: Sheila GOTHA, Appellant v. UNITED STATES of America, Appellee
• Court: U.S. Court of Appeals — Third Circuit

Page 176

115 F.3d 176

65 USLW 2797

Sheila GOTHA, Appellant v. UNITED STATES of America, Appellee

No. 96-7442.

United States Court of Appeals, Third Circuit.

Argued April 7, 1997.

Decided May 28, 1997.

Diane M. Russell (argued), Holt & Russell, Christiansted, St. Croix, VI, for Appellant.

Frank W. Hunger, Assistant Attorney General, Robert S. Greenspan, Steve Frank (argued), United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, James A. Hurd, Jr., United States Attorney, Michael A. Humphreys, Office of United States Attorney, Christiansted, St. Croix, VI, for Appellee.

Before: BECKER, ROTH and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

In this appeal we conclude that the United States Navy's failure to provide routine safeguards on a footpath leading to a structure under its control does not implicate the discretionary function exception to the Federal Tort Claims Act. See 28 U.S.C. § 2680(a). Therefore, the claim of personal injury based on the plaintiff's fall on the path satisfies the jurisdictional facet of the Act and the judgment dismissing the complaint will be reversed.

At the time of the accident, plaintiff, Sheila Gotha, was an employee of the Martin-Marietta Company, which was performing work for the Navy at the land base of the Underwater Tracking Range located on St. Croix, Virgin Islands. The facility consists of upper and lower sites separated by a public road.

On February 20, 1994, at approximately 5:00 a.m., plaintiff was walking from the upper portion of the facility to the lower sector to deliver material to an office trailer. She and a co-employee took the unpaved path that led directly to the trailer. The path was approximately fifteen to twenty feet in length and dropped downward at an angle of approximately fifty-four degrees. There was no lighting in the area, and as plaintiff descended the path in the darkness, she fell and injured her ankle.

Plaintiff sued the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, alleging negligence on the part of the government in failing to provide a safe access to the trailer. Specifically, her complaint alleged that the government was negligent in failing to provide a stairway with handrails and for neglecting to provide sufficient lighting at the scene. The district court, however, dismissed the action based on lack of subject-matter jurisdiction, concluding that the government was protected by sovereign immunity because the conduct alleged came within the discretionary function exception to liability under the Federal Tort Claims Act, 28 U.S.C. § 2680(a).

Based on testimony of Navy personnel, the court rejected the government's first defense of delegation of responsibility to Martin-Marietta for the condition of the premises. After analyzing the discretionary function exception, the court decided that no statute or regulation mandated the Navy to make the repairs or undertake the construction measures that plaintiff alleged were necessary.

The court, however, determined that the exception applied because the Navy had based its decision not to improve the path on "a complex set of policy imperatives." These factors included "the effect of any construction on existing military hardware," as well as "budgetary constraints and safety concerns." In conclusion, the court stated: "A policy decision was made concerning the installation of steps on the [Underwater Tracking Range] premises and that decision is protected by the discretionary function exception."

I.

The government's motion to dismiss was based on Federal Rule of Civil Procedure 12(b)(1), lack of subject-matter jurisdiction. Because the Navy's motion was not merely a facial challenge to the district court's jurisdiction, the court was not confined to allegations in the plaintiff's complaint, but could consider affidavits, depositions, and testimony to resolve factual issues bearing on jurisdiction. See Mortensen v. First Fed. Sav. & Loan Ass'n., 549 F.2d 884, 891-92 (3d Cir.1977) (because a trial court's very power to hear a case is at issue in a factual 12(b)(1) motion, a court is free to weigh evidence beyond the plaintiff's allegations). We exercise plenary review over the applicability of the discretionary function exception. Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279, 282 (3d Cir.1995) (en banc).

II.

The Federal Torts Claims Act is a partial abrogation of the federal government's sovereign immunity that permits suits for torts against the United States. The Act, however, imposes a significant limitation by providing that no liability may be asserted for a 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).

The statute does not define "discretionary function or duty" and these terms have led to extensive litigation over the scope of the government's liability to tort claimants. It is clear that if the word "discretionary" is given a broad construction, it could almost completely nullify the goal of the Act. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984) (exception "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.").

The statutory language does not apply to every situation in which there is an actual option to choose between courses of action or inaction. Rather, as the Supreme Court has stated, the discretion that is immunized from "second-guessing" in the tort suit context applies to "legislative and administrative decisions grounded in social, economic, and political policy." Id. at 814, 104 S.Ct. at 2765.

In Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988), the Court explained: "The exception, properly construed ... protects only governmental actions and decisions based on consideration of public policy." The reason for "fashioning an exception for discretionary governmental functions" was to "protect the government from liability that would seriously handicap efficient government operations." Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2765.

In Berkovitz, the Court adopted a two-stage inquiry: First, a court must consider if "a federal statute, regulation or policy specifically prescribes a course of action for an employee to follow." 486 U.S. at 536, 108 S.Ct. at 1958. If so, "the employee has no rightful option but to adhere to the directive." Id. Consequently, there can be no lawful discretionary act.

If circumstances imposing compulsion do not exist, a court must then consider whether the challenged action or inaction "is of the kind that the discretionary function exception was designed to shield." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1959. Again, the Court emphasized that the "discretionary function exception insulates the Government from liability if the action ... involves the permissible exercise of policy judgment." Id. at 537, 108 S.Ct. at 1959.

In United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 1275, 113 L.Ed.2d 335 (1991), the Court explained that for a plaintiff's claim to survive, the challenged actions cannot "be grounded in the policy of the regulatory regime." The Court stressed that the "focus of the inquiry is not on the agent's subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis." Id.

Gaubert noted another limitation on the exception, citing the hypothetical situation where an agency employee negligently drives an automobile in the course of his employment. Such action, although within the scope of employment, "cannot be said to be based on the purposes that the regulatory regime seeks to accomplish." 499 U.S. at 325 n. 7, 111 S.Ct. at 1275 n. 7.

An examination of some of the situations where the discretionary function exception was applied may be helpful in understanding its scope. A federal agency decision to use a spot-checking process in inspecting aircraft was an exercise of policy discretion. Varig Airlines, 467 U.S. at 814-16, 104 S.Ct. at 2764-66. The supervision of day-to-day activities of a failing thrift institution was based on the public policy considerations of protecting the federal savings and loan insurance fund and federal oversight of the thrift industry. Gaubert, 499 U.S. at 332, 111 S.Ct. at 1278-79. The decision of the Food and Drug Administration to refuse entry to suspected contaminated fruit was a discretionary action. Fisher Bros., 46 F.3d at 285. See also Sea-Land Serv. v. United States, 919 F.2d 888 (3d Cir.1990) (decision to use asbestos in construction of ships was a discretionary decision); General Public Utils. Corp. v. United States, 745 F.2d 239 (3d Cir.1984) (action of Nuclear Regulatory Commission in not reporting safety information was discretionary). ¹

Against the background of this brief survey of the general principles governing the discretionary function exception, we move to the consideration of the circumstances present here.

The plaintiff's complaint focuses on the lack of a stairway, railing, and lighting that made the steep path an unsafe means of access to the trailer in the lower lot. Although the district court referred to the Navy's "decision" not to provide such improvements, it is not clear from that court's opinion whether there had been an actual decision to forego those measures, or whether the "decision" was simply inaction. In a deposition, an employee of Martin-Marietta stated that several years before plaintiff fell, the Navy had been asked on two or three occasions to...