Kohl v. United States

• Decision Date: 16 November 2012
• Docket Number: No. 11–6213.,11–6213.
• Citation: 699 F.3d 935
• Parties: Debra R. KOHL, Plaintiff–Appellant, v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

699 F.3d 935

Debra R. KOHL, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 11–6213.

United States Court of Appeals,Sixth Circuit.

Argued: Oct. 5, 2012.

Decided and Filed: Nov. 16, 2012.

ARGUED:Brandon E. Bass, Law Offices of John Day, P.C., Brentwood, Tennessee, for Appellant. Jeffrey E. Sandberg, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF:Brandon E. Bass, John A. Day, Law Offices of John Day, P.C., Brentwood, Tennessee, for Appellant. Jeffrey E. Sandberg, Mark B. Stern, United States Department of Justice, Washington, D.C., for Appellee.

Before: MERRITT, MOORE, and McKEAGUE, Circuit Judges.

MOORE, J., delivered the opinion of the court in which McKEAGUE, J., joined. MERRITT, J. (pp. 945–48), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

This case arises out of the execution of a field experiment aimed at improving the government's technical capacity to respond to Improvised Explosive Devices (IEDs). Plaintiff–Appellant Debra R. Kohl (“Kohl”) seeks recovery for injuries allegedly sustained due to negligence of a federal employee operating a winch while collecting debris generated by the planned detonation of explosives during this government-funded research experiment. Kohl appeals the district court's determination that her claims were barred by the discretionary-function exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq., and that the court thus lacked subject-matter jurisdiction. Because we conclude that the government's decisions about how to extract evidence from the site of the explosions, and what types of equipment to use to do so, are shielded from liability by the discretionary-function exception, we AFFIRM the judgment of the district court.

I. BACKGROUND

On December 4, 2007, Kohl, a certified bomb technician with the Hazardous Devices Unit of the Metropolitan Nashville Police Department (“MNPD”), participated in a research experiment funded by the U.S. Department of Defense at the Tennessee State Fire Academy in Bell Buckle, Bedford County, Tennessee. The experiment involved constructing and detonating explosive devices in vehicles and then collecting post-blast debris for laboratory analysis as forensic evidence. Kohl v. United States, No. 3–09–1190, 2011 WL 4537969, at *1 (M.D.Tenn. Sept. 29, 2011) (unpublished opinion). This experiment was part of a larger research project conducted by scientists working at Oak Ridge National Laboratory, managed by the University of Tennessee–Battelle for the Department of Energy. R. 41 (Pl.'s Response to Def.'s Stmt. of Undisputed Material Facts [hereinafter “Undisputed Material Facts”] at 1) (Page ID # 661). Explosives Enforcement Officers of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), Jason Harrell and Alex Guerrero, assisted and participated in the experiment.

Following the detonation of the explosives, and after an “all-clear” was given, participants in the project, including Kohl, entered the explosives range to inspect the vehicles. Id. at 4 (Page ID # 664). Kohl and Officer Todd Mask, another MNPD bomb technician participating in the project, proceeded to investigate one of the vehicles, a minivan. Id. at 4–5 (Page ID # 664–65). Kohl searched the passenger's side of the minivan for evidence, while Mask attempted to search the driver's side of the vehicle. Id. at 5 (Page ID # 665). However, the driver's side door of the minivan had “buckled,” and as a result, it would not open. R. 38–6 (Mask Dep. at 26:2–3) (Page ID # 636). The investigation team decided to try to access the inside of the van by using a winch on the driver's side door. R. 41 (Undisputed Material Facts at 6) (Page ID # 666). After a first failed attempt to winch the door, a second attempt was made. R. 38–5 (Kohl Dep. at 71:8–18) (Page ID # 594). While other team members were preparing to winch the door a second time, Kohl testified that she returned to the passenger's side door of the van and continued searching for evidence. Id. at 72:15–18 (Page ID # 595). During this time, Kohl was “leaning into the passenger side of the vehicle.” R. 1 (Compl. ¶ 10) (Page ID # 3).

Then, although the record is not clear about exactly how Kohl came into contact with the vehicle, Kohl testified that she remembers feeling “pain in the top of [her] head” and that she “saw stars.” R. 38–5 (Kohl Dep. at 74:8–9) (Page ID # 597). The complaint alleges that “[d]ue to the winching, the door came loose and the door frame of the vehicle crashed into Ms. Kohl's head.” R. 1 (Compl. ¶ 14) (Page ID # 3). After seeking medical care the following day, Kohl was referred to a neurologist, who diagnosed her with “post-concussive syndrome with persistent headaches and cognitive changes.” Kohl, 2011 WL 4537969, at *2 (internal quotation marks omitted). Since the incident, Kohl has not been employed. Id.

Kohl filed this action on December 16, 2009 in the U.S. District Court for the Middle District of Tennessee under the FTCA, 28 U.S.C. §§ 1346(b), 2671–2680, seeking damages. R. 1 (Compl. ¶ 3) (Page ID # 1). The complaint alleges that federal employees were negligent in “operat[ing] the winch in an unsafe manner,” “fail[ing] to warn Plaintiff of dangers regarding the winch,” “conduct[ing] the operation, including winching of the vehicle, without proper safety protocols,” and by “fail[ing] to use reasonable and due care to prevent injury to Plaintiff.” Id. ¶ 19 (Page ID # 4). Defendant United States filed a motion to dismiss or, alternatively, for summary judgment on January 7, 2011, in part on the basis that the district court lacked subject-matter jurisdiction. R. 34 (Def.'s Mot. to Dismiss at 1) (Page ID # 140). Finding that the conduct at issue in this case falls within the discretionary-function exception to the FTCA, the district court dismissed Kohl's claims for lack of subject-matter jurisdiction. Kohl, 2011 WL 4537969, at *9. Kohl timely filed an appeal on October 5, 2011. R. 72 (Notice of Appeal) (Page ID # 1282).

II. ANALYSIS

A. Discretionary–Function Exception: Legal Framework

At issue is whether the district court erred in finding that it lacked subject-matter jurisdiction over Kohl's claims. We review de novo a district court's dismissal based on the application of the discretionary-function exception to the FTCA.¹Rich v. United States, 119 F.3d 447, 449 (6th Cir.1997); Rosebush v. United States, 119 F.3d 438, 440 (6th Cir.1997).

Sovereign immunity generally bars claims against the United States without its consent. See Montez ex rel. Estate of Hearlson v. United States, 359 F.3d 392, 395 (6th Cir.2004) (citing United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976)). Congress, through the FTCA, waived this governmental immunity for claims brought

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.

28 U.S.C. § 1346(b)(1). The FTCA's waiver of immunity is limited, and contains a series of exceptions. Id. § 2680. One of these exceptions—known as the discretionary-function exception—states that the FTCA's waiver does not apply to “[a]ny 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.” Id. § 2680(a). If a claim falls within this exception, then federal courts lack subject-matter jurisdiction, and the claim must be dismissed. See Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984). This appeal concerns whether the conduct at issue in Kohl's claims falls within the discretionary-function exception.

Determining whether a claim falls within the discretionary-function exception involves a two-step test. See United States v. Gaubert, 499 U.S. 315, 322–23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Rosebush, 119 F.3d at 441. The first step “requires a determination of whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice.” Rosebush, 119 F.3d at 441 (citing Gaubert, 499 U.S. at 322–23, 111 S.Ct. 1267). If there was such a violation of a mandatory regulation or policy, then the discretionary-function exception will not apply, because “there was no element of judgment or choice,” id., and thus “the employee has no rightful option but to adhere to the directive.” Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).

If, on the other hand, there was room for judgment or choice in the decision made, then the challenged conduct was discretionary. See Rosebush, 119 F.3d at 441. In such a case, the second step of the test requires a court to evaluate “whether the conduct is ‘of the kind that the discretionary function exception was designed to shield’ ” from liability. Id. (quoting Gaubert, 499 U.S. at 322–23, 111 S.Ct. 1267). The discretionary-function exception is meant “to prevent judicial ‘second-guessing’ of ... 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).

The discretionary-function exception's scope extends beyond high-level policymakers, and includes government employees at any rank exercising discretion. Id. at 813, 104 S.Ct. 2755 (“[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.”). “A discretionary act is one...