Mayfield v. United States
| Decision Date | 16 January 2019 |
| Docket Number | Civil No. 6:18-CV-00261-ADA-JCM |
| Citation | 365 F.Supp.3d 791 |
| Parties | Mary Ann MAYFIELD, et al., Plaintiffs v. The UNITED STATES of America, Defendant |
| Court | U.S. District Court — Western District of Texas |
Alberto Luis Guerrero, Jody R. Mask, Mask & Guerrero, McAllen, TX, Kevin H. Dubose, Pro Hac Vice, Alexander Dubose Jefferson & Townsend LLP, Houston, TX, for Plaintiffs.
Kartik Venguswamy, U.S. Attorney's Office, Austin, TX, for Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' ORIGINAL COMPLAINT
Before the Court is Defendant United States of America's Motion to Dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1).1 After carefully reviewing the Parties' briefs, the relevant law, and the entire case file, the Court finds that Defendant's Motion should be granted for the following reasons.
This lawsuit involves facts that are nothing short of horrific. A houseboat is beached in a popular swimming area called Sandy Point, a place where boaters and swimmers comingle. When a houseboat unexpectedly starts its engines tragedy strikes. A four-year old girl is sucked into the propeller, mutilated, and drowned. Her father, while attempting to save her, had both his legs amputated by the boat's propeller—he would eventually die from those injuries. The wife and mother of the husband and daughter was a bystander and witnessed the entire grisly scene. Plaintiffs have brought an action for damages against the United States of America under the Federal Tort Claims Act (the "FTCA") in response to these events. Plaintiffs' claim focuses on allegations that Defendant was (1) aware of the fact that Sandy Point was used by both swimmers and boaters; (2) that the operation of boats presented a hazard to swimmers in the same area; and (3) that Defendant failed to properly regulate the use of motorized vehicles in this environment and did not post any signs warning the public of the hazards of having both boats and swimmers sharing the same space.
The FTCA waives sovereign immunity and permits suit against the United States for claims sounding in state tort law for money damages. 28 U.S.C. § 2674 (). It provides district courts with jurisdiction over monetary claims against the Government for the negligent or wrongful acts of its employees "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).
However, the liability of the United States under the FTCA is subject to various exceptions contained in 28 U.S.C. § 2680, including the "discretionary function" exception. See United States v. Gaubert , 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). The discretionary function exception provides that the Government is not liable under the FTCA for:
Any 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). This exception "covers only acts that are discretionary in nature, acts that ‘involv[e] an element of judgment or choice,’ and ‘it is the nature of the conduct, rather than the status of the actor’ that governs whether the exception applies. Id. ().
The first issue to be addressed is who has the burden of establishing jurisdiction. The Court finds that the burden rests on the plaintiff because they are the party asserting jurisdiction. At the pleading stage, the plaintiff has the burden to "invoke the court's jurisdiction by alleging a claim that is facially outside of the discretionary function exception." Freeman v. United States , 556 F.3d 326, 334 (5th Cir. 2009). The Court notes it is unclear whether the plaintiff or the government bears the ultimate burden of proving that the discretionary function exception applies. See St. Tammany Par., ex rel. Davis v. Fed. Emergency Mgmt. Agency , 556 F.3d 307, 315 n.3 (5th Cir. 2009). However, there is no question that the plaintiff bears the burden of showing Congress' unequivocal waiver of sovereign immunity. See Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). At the motion to dismiss stage, this includes pleading facts that facially allege matters outside of the discretionary function exception. St. Tammany Parish , 556 F.3d at 315 n.3. Based on the foregoing, the Court finds that it is Plaintiffs' burden (1) to establish that the discretionary function exception does not apply; and (2) to establish that the decision of the United States Army Corps of Engineers ("USACE") allowing swimmers and boaters to mix at Sandy Point was either not discretionary or not subject to a policy analysis. See Gaubert , 499 U.S. at 322–23, 111 S.Ct. 1267.
The next issue is whether the Court must, as is typical at a motion to dismiss stage, accept the factual allegations in the complaint as true. The Government contends that at this stage—where the Court is determining whether or not subject matter jurisdiction exists—"no presumptive truthfulness attaches to the plaintiff's allegations...." Document No. 17 at 2 (quoting Montez v. Dep't of Navy , 392 F.3d 147, 149 (5th Cir. 2004) ). The Court finds that in determining whether it is properly vested with subject matter jurisdiction, it is " ‘free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case.’ " Krim v. pcOrder.com, Inc. , 402 F.3d 489, 494 (5th Cir. 2005) (quoting Montez v. Dep't of Navy , 392 F.3d 147, 149 (5th Cir. 2004) ). Notwithstanding the foregoing, the Court is also aware that a Rule 12(b)(1) motion "should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle [the] plaintiff to relief." Ramming v. U.S. , 281 F.3d 158, 161 (5th Cir. 2001) (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, Miss. , 143 F.3d 1006, 1010 (5th Cir. 1998) ).
Finally, Plaintiffs argue that Defendants have failed to demonstrate that a policy decision underlay its decision to allow boaters and swimmers to mix at Sandy Point. The Government contends that this is a misstatement of the law. According to the Government, the question for the Court is instead whether the choice is susceptible to policy analysis or is "grounded in the policy of the regulatory regime." Gaubert , 499 U.S. at 324–25, 111 S.Ct. 1267. It does not matter whether the employee "in fact engaged in a policy analysis when reaching his decision" as long as his decision is "susceptible to policy analysis." Spotts v. United States , 613 F.3d 559, 572 (5th Cir. 2010) (quoting Gaubert , 499 U.S. at 325, 111 S.Ct. 1267 ) (emphasis in original). The Court sides with the Government on this issue because it believes the Government has correctly stated the appropriate standard regarding the discretionary function exception. The Court also concurs that where a regulation or policy affords discretion to the employee, "the very existence of the regulation creates a strong presumption " that the discretionary action taken under that regulation or policy implicates the same policy considerations. Gaubert , 499 U.S. at 324, 111 S.Ct. 1267 (emphasis added).
The Court begins with the issues regarding the discretionary function exception to the FTCA. The discretionary function exception provides broad immunity—it precludes tort liability for "[a]ny claim based upon an act or omission of an employee of the Government ... based upon ... a discretionary function or duty...." 28 U.S.C. § 2680(a). The exception reflects Congress' "wish[ ] 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." Varig Airlines , 467 U.S. at 814, 104 S.Ct. 2755. In other words, "if judicial review would encroach upon th[e] type of balancing done by an agency, then the [discretionary function] exception" applies. Begay v. United States , 768 F.2d 1059, 1064 (9th Cir. 1985). The Supreme Court has fashioned a two-part test for determining whether specific claims are barred by the discretionary function exception; therefore, courts apply a two-part test to determine whether an agency's conduct qualifies as a discretionary function or duty. See Gaubert , 499 U.S. at 322–23, 111 S.Ct. 1267.
The Court first assesses whether the challenged conduct was "discretionary in nature." Id. at 322, 111 S.Ct. 1267. Discretionary conduct includes "acts that ‘involv[e] an element of judgment or choice.’ " Id. If the Court finds that the agency's conduct was discretionary in nature, then it considers whether the actions taken are "susceptible to policy analysis." Id. at 325, 111 S.Ct. 1267. Both prongs must be satisfied for the discretionary function exception to bar claims brought under the FTCA.
Under the first prong, the conduct must be a "matter of choice for the acting employee."
Berkovitz , 486 U.S. at 536, 108 S.Ct. 1954. "The exception covers only acts that are discretionary in nature, acts that ‘involv[e] an element of judgment or choice.’ " Gaubert , 499 U.S. at 322, 111 S.Ct. 1267 (qu...
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