In re Moore

• Decision Date: 21 September 2020
• Docket Number: Case No.: 1:17-cv-1310-PWG
• Parties: In the MATTER OF the Complaint of Scott MOORE, as Administrator of the Estate of Gregory Moore, Owner of the Vessel "Reel Intimidator" for Exoneration From or Limitation of Liability
• Court: U.S. District Court — District of Maryland

488 F.Supp.3d 231

In the MATTER OF the Complaint of Scott MOORE, as Administrator of the Estate of Gregory Moore, Owner of the Vessel "Reel Intimidator" for Exoneration From or Limitation of Liability

Case No.: 1:17-cv-1310-PWG

United States District Court, D. Maryland, Southern Division.

Signed September 21, 2020

Robert P. O'Brien, Bryant Steven Green, Niles Barton and Wilmer LLP, Baltimore, MD, Rodger O. Robertson, Law Office of Joseph M. Jagielski, Hunt Valley, MD, for Plaintiffs.

Edward L. Norwind, Ronald A. Karp, Zachary King, Karp Wigodsky Norwind, Kudel & Gold, P.A., Rockville, MD, for Defendants A Minor, Denise Edelen, Jessica Buchanan, William Edelen, III, William Edelen, Sr., Heather Edelen.

Michael J. Schreyer, Alpert Schreyer, LLC, Waldorf, MD, for Defendant Katelyn E. Burroughs.

Bradley J. Preamble, U.S. Department of Justice, Waghington, DC, Justin R. Jolley, U.S. Department of Justice, Washington, DC, for Defendant USA.

MEMORANDUM OPINION

Paul W. Grimm, United States District Judge

Third Party Plaintiff Katelyn Burroughs, Individually and as Personal Representative of the Estate of Roger Grissom, Sr., filed suit against the United States pursuant to the Suits in Admiralty Act (SIAA) 46 U.S.C. §§ 30901 –18. She alleges that, while conducting a rescue mission to search for Roger Grissom and others who were aboard the vessel Reel Intimidator before it capsized in a storm on November 19, 2016, the United States Coast Guard (USCG) acted negligently and created a reliance interest on behalf of Grissom and the others aboard. Answer and Compl., 8-9, ECF No. 12. That negligence, according to Burroughs, was the proximate cause of loss and damage to the distressed mariners aboard the vessel whose position "worsened in reliance on the undertaking [of the rescue mission] by the Coast Guard." Id. at 9.

The Government has moved to dismiss for lack of subject matter jurisdiction, claiming that the sovereign immunity discretionary function exception of the Federal Tort Claims Act (FTCA) protects it from suit relating to the USCG's actions on the night of the rescue. Def.’s Mot. Mem. 8-9, ECF No. 74. The discretionary function exception is set forth in the FTCA. 28 U.S.C. § 1364(b), §§ 2671 - 80. In McMellon v. United States , the Fourth Circuit held the discretionary function exception also applies to suits filed under the SIAA. 387 F.3d 329, 349 (4th Cir. 2004) (en banc ) ("[S]eparation-of-powers principles require us to read a discretionary function exception into the SIAA ...."). For the reasons that follow, I agree with the United States, and dismiss this complaint with prejudice.¹

The relevant actors in this case are various USCG personnel involved in the November 19th rescue operation. According to the Government's motion, those individuals include Petty Officer Michael McCarthy, who took the distress call while stationed at the Coast Guard Sector Maryland-National Capital Region command center, Def.’s Mot. Mem. 4; Petty Officer Ian McGoohan, the assigned Operations Unit controller, also stationed at the command center, id. at 5; Petty Officer James Bonner, who commanded the first-dispatched USCG 45-foot rescue boat, id. at 6; Petty Officer Michael Esce, who relieved Petty Officer McGoohan, id. ; and Petty Officer Richard Chandler, whose crew relieved Petty Officer Bonner and his crew during the search, id.

The Plaintiff, who carries the burden to establish jurisdiction, Wood v. United States , 845 F.3d 123, 127 (4th Cir. 2017), fails to establish that the USCG's decisions at issue are not protected by the discretionary function exception, and therefore sovereign immunity shields those decisions.² The parties fully briefed the motion (ECF Nos. 74, 77, 78), and a hearing is not necessary. See Loc. R. 105.6 (D. Md. 2018).

Standard of Review

Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal of a plaintiff's complaint due to lack of subject matter jurisdiction, asserting, in effect, that the plaintiff lacks any "right to be in the district court at all." Holloway v. Pagan River Dockside Seafood, Inc. , 669 F.3d 448, 452 (4th Cir. 2012). "Jurisdiction of the lower federal courts is ... limited to those subjects encompassed within a statutory grant of jurisdiction." Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 701, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). Because subject matter jurisdiction involves the court's power to hear a case, it cannot be waived or forfeited, and courts have an independent obligation to ensure that subject matter jurisdiction exists. Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006). The burden of establishing subject matter jurisdiction rests squarely with the plaintiff. Evans v. B.F. Perkins Co. , 166 F.3d 642, 647 (4th Cir. 1999). But the district court should grant a 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Balfour Beatty Infrastructure, Inc. v. Mayor & City Council of Balt. , 855 F.3d 247, 251 (4th Cir. 2017) (quoting Evans , 166 F.3d at 647 ).

A defendant may challenge the district court's subject matter jurisdiction in two ways. See Kerns v. United States , 585 F.3d 187, 192 (4th Cir. 2009). First, a defendant may raise a facial challenge, alleging "that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based." Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982). Under such a challenge, the court takes the complaint's allegations as true.

Kerns , 585 F.3d at 192. Alternatively, a defendant may raise a factual challenge, asserting that the jurisdictional allegations in the complaint are untrue. Id. In that case, the court may consider evidence outside of the pleadings without converting the motion to one for summary judgment. Id.

The Government does not state in its motion whether it brings a facial or factual challenge. However, I will construe the motion as a facial challenge, because the Government is essentially arguing that the discretionary function exception precludes jurisdiction even on the facts set forth in Plaintiff's complaint. Accordingly, I will take the facts alleged in the complaint as true and deny the motion if the complaint alleges sufficient facts to invoke subject matter jurisdiction. Id.

Discussion

"The United States, as sovereign, is immune from suit save as it consents to be sued." United States v. Sherwood , 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) ; see also Kerns , 585 F.3d at 193-94 ("Absent a statutory waiver, sovereign immunity shields the United States from a civil tort suit."). In the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. , Congress "waived the sovereign immunity of the United States for certain torts committed by federal employees" within the scope of their employment. Kerns , 585 F.3d at 194 (quoting Fed. Deposit Ins. Corp. v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) ). "The FTCA, as a waiver of sovereign immunity, is strictly construed, and all ambiguities are resolved in favor of the sovereign." Robb v. United States , 80 F.3d 884, 887 (4th Cir. 1996).³

However, the FTCA lists several exceptions under which the United States does not waive its sovereign immunity and consent to be sued. 28 U.S.C. § 2680. One of these is the discretionary function exception, which exempts from the waiver of sovereign immunity

[a]ny 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 or 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). With this exception, "Congress wished 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." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). If the discretionary function exception applies, the United States has not waived sovereign immunity and the court lacks subject matter jurisdiction. Williams v. United States , 50 F.3d 299, 304-05 (4th Cir. 1995).

Courts undertake a two-tier analysis in order to determine whether the discretionary function exception applies. First, the Court must consider "whether the governmental action complained of involves an element of judgment or choice." Baum v. United States , 986 F.2d 716, 720 (4th Cir. 1993) (internal quotation marks omitted) (citing Berkovitz v. United States , 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) ; United States v. Gaubert , 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) ; Piechowicz v. United States , 885 F.2d 1207, 1211 (4th Cir. 1989) ). As the Fourth Circuit has instructed,

[t]he inquiry boils down to whether the government conduct is the subject of any mandatory federal statute, regulation, or policy prescribing a specific course of action. If such a mandatory statute, regulation, or policy applies, then the conduct involves no legitimate element of judgment or choice and the function in question cannot be said to be discretionary. In that case the government actor "has no rightful option but to adhere to the directive," and if the plaintiff can show that the actor in fact failed to so adhere to a mandatory standard, then the claim does not fall within the discretionary function exception.

Baum , 986 F.2d at 720 (quoting Berkovitz , 486 U.S. at 536, 108 S.Ct. 1954 ).

Second, if no such mandatory rule exists and the government must exercise its choice or judgment, the Court "ask[s] whether the choice or judgment involved is one based on...