Harmon v. United States
| Decision Date | 12 June 2017 |
| Docket Number | Case No. 4:15-cv-00173-BLW |
| Parties | DOUGLAS G. HARMON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Idaho |
The Court has before it the United States' Motion to Dismiss (Dkt. 25). The motion is fully briefed and at issue. For the reasons explained below, the Court will grant the motion.
The facts of this case were recited in the Court's March 24 Memorandum Decision and Order (Dkt. 27) ("Summary Judgment Order") and will be repeated here only as necessary for resolving the present motion.
The United States Bureau of Indian Affairs ("BIA") is responsible for managing and operating the Fort Hall Irrigation Project ("FHIP"), an agricultural irrigation system designed to deliver water to the Fort Hall Reservation in southeastern Idaho. On May 21, 2015, Plaintiff Doug Harmon filed this negligence action against the United States of America, acting by and through BIA, alleging that the Bureau's negligence in overseeing the FHIP resulted in multiple flooding events in 2012 that damaged his farm crops.
On March 24, 2017, this Court issued a Memorandum Decision and Order granting in part and denying in part the government's Motion for Summary Judgment. The Motion was granted as to Harmon's theories of negligence premised on a voluntary assumption of duty to maintain private farm ditches and those premised on a duty imposed by BIA regulation. The motion was also granted as to Harmon's negligence claim stemming from the September 25, 2012 flooding incident. The Court denied summary judgment as to all remaining issues and claims.
On April 28, 2017, the United States filed the present Motion to Dismiss, asserting that this Court lacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The government argues that the alleged negligent actions are shielded by the "discretionary function exception" to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2660(a), and seeks to dismiss this action in its entirety. Harmon responds that the exception does not apply to the conduct raised in this lawsuit and that the matter should proceed to trial on the disputed facts.
A defendant may move to dismiss a complaint for lack of subject matter jurisdiction under Rule 12(b)(1) in one of two ways. See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). The first is known as a "facial" attack, and it accepts the truthof the plaintiff's allegations but asserts that they are insufficient on their face to invoke federal jurisdiction. Id. The second method is known as a "factual" attack, and it does not assume the truth of plaintiff's allegations but instead challenges them by introducing extrinsic evidence, requiring the plaintiff to support his jurisdictional allegations with "competent proof." Id.
Here, the government has launched a factual attack. When considering such an attack, the Court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (internal quotations omitted). Where no evidentiary hearing is held, conflicts in the submissions by the parties must be resolved in the plaintiffs' favor. Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1160 (9th Cir. 2007).
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994). The Federal Tort Claims Act represents an unequivocal, but limited, waiver of the government's sovereign immunity. By statute, federal jurisdiction is established over civil suits for money damages against the United States:
for injury or loss 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 commission occurred.
28 U.S.C. § 1346(b).
Congress has carved out several exceptions to the FTCA's waiver of immunity. See 28 U.S.C. § 2680. These include the discretionary function exception, which provides that courts have no jurisdiction over any claim against the United States "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). "In this way, the discretionary function exception serves to insulate certain governmental decision-making from judicial second guessing of legislative and administrative decisions grounded in social, economic, and political policy through the median of an action in tort." Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (internal quotation marks and citation omitted).
There is a two-part test for determining whether the discretionary function exception applies. See United States v. Gaubert, 499 U.S. 315, 322-23 (1991); Berkowitz v. United States, 486 U.S. 531, 536-37 (1988). First, the Court must determine whether the challenged acts "involv[e] an element of judgment or choice." Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536). "The requirement of judgment or choice is not satisfied 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 toadhere to the directive.'" Id. (quoting Berkovitz, 486 U.S. at 536). Second, the action taken or the decision made must be "of the kind that the discretionary function exception was designed to shield"—namely, actions and decisions grounded in social, economic, or political policy. Id. at 323. "The challenged decision need not be actually grounded in policy considerations, but must be, by its nature, susceptible to a policy analysis." Miller v. United States, 163 F.3d 591, 593 (9th Cir. 1998); see also Gaubert, 499 U.S. at 325 (). Both prongs must be satisfied for the discretionary function exception to apply. Id. at 322-33.
Whether the exception applies is a question of law for the Court to decide. See Kelly v. United States., 241 F.3d 755, 759 (9th Cir. 2001). Under Ninth Circuit authority, on a motion to dismiss, "the United States bears the burden of proving the applicability of one of the exceptions to the FTCA's general waiver of immunity." Prescott v. U.S., 973 F.2d 696, 702 (9th Cir. 1992). As a remedial statute, the FTCA "should be construed liberally, and its exceptions should be read narrowly." O'Toole v. United States, 295 F.3d 1029, 1037 (9th Cir. 2002).
Before undertaking this two-part inquiry, the Court must identify the specific action or omission Plaintiff is challenging. See GATX/Airlog Co. v. United States, 286F.3d 1168, 1174 (9th Cir. 2002). After this Court's Summary Judgment Order, only one theory of negligence remains at issue in this case—that the BIA failed to properly regulate water deliveries on the Fort Hall Irrigation Project to users who improperly operated or maintained their private ditches or headgates. See Memorandum Decision & Order, at 24-27, Dkt. 27. The Court must decide whether Harmon's remaining theory of recovery is cognizable under the FTCA in light of the discretionary function exception.
Applying the two-step Berkovitz framework, the first inquiry is whether the challenged action involved an "element of judgment or choice." Berkovitz, 486 U.S. at 536. Harmon alleges two sources of a nondiscretionary duty here: the Fort Hall Irrigation Project Operation and Maintenance Guidelines ("O&M Guidelines") and BIA's voluntary assumption of duty. The Court considers each in turn.
Harmon argues that the FHIP O&M Guidelines required BIA to "properly regulate and control irrigation water delivery to water users" to control flooding. See Pl.'s Br. at 3, Dkt. 33. He cites to three particular provisions as evidence of this duty. Id. The first states that "[t]he Supervisory Irrigation System Operator . . . manages the distribution of water to each [ditchrider district]." See FHIP O&M Guidelines at 1-21, Dkt. 13-5. The second declares that the "[t]he [ditchrider] controls the water levels in canals and laterals to minimize fluctuation, measures the flow to the water user and records delivery information." Id. at 1-21. The third states that the watermaster and ditchrider "[r]eport[] ifexcess water is spilling at wasteways or at the end of the distribution system and make[] adjustments to diversions and deliveries as deemed necessary." Id. at 1-30, 1-31.
These provisions are both imbued with discretion and unrelated to the challenged conduct in this case. Most naturally read, the O&M Guidelines merely direct BIA employees to control water flows for supply and demand fluctuations. Nowhere do they demand action in response to water users who failed to properly operate or maintain their private farm ditches or headgates. Even if the Court were to infer such a duty, it's...
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