Monzon v. U.S., 00-16206

• Decision Date: 05 June 2001
• Docket Number: No. 00-16206,00-16206
• Citation: 253 F.3d 567
• Parties: (11th Cir. 2001) EMILIANO MONZON, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. Non-Argument Calendar
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 567

253 F.3d 567 (11th Cir. 2001)

EMILIANO MONZON, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.

No. 00-16206

Non-Argument Calendar

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

June 5, 2001

Appeal from the United States District Court for the Middle District of Florida.D. C. Docket No. 99-00346-CV-J-21C

Before ANDERSON, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

The district court dismissed Plaintiff Emiliano Monzon's claim brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), for lack of subject matter jurisdiction, holding that the discretionary function exception to the limited waiver of sovereignty contained in the FTCA barred Plaintiff's claim. We affirm.

I. BACKGROUND

On May 17, 1998, Plaintiff's wife, Cirelda Monzon, and her three children drove to the beach area located at Fort Matanzas Inlet. Adjacent to the beach area is the Fort Matanzas National Monument, which is controlled by the National Park Service, a division of the Department of Interior. Sometime that afternoon one of Cirelda's daughters was caught in a rip current. While attempting to rescue her daughter, Cirelda died by drowning.

On that same day, the National Weather Service ("NWS") in Jacksonville, Florida, broadcasted two "Hazardous Weather Outlook[s] for Southeast Georgia and Northeast Florida" that mentioned rip currents, one at 5:15 a.m. and one at 3:14 p.m. These "Hazardous Weather Outlooks" were announced on the National Oceanic and Atmospheric Administration Weather Channel and were sent via long wire to vendors, whose paid subscribers included media entities.

In May 1998, it was not a routine practice of the NWS to publish information on rip currents. In fact, at that time, the NWS was engaged in an experimental project with the St. Johns County Beach Patrol to determine if rip current activity could be predicted. As part of this experiment, an agent of the St. Johns County Beach Patrol provided data from the beach to NWS officials.

On May 17, 1998, an agent from NWS contacted the St. Johns County Beach Patrol to inform it that the experimental computer model suggested that the beach area would soon experience increased rip current activity. This information was never communicated to Plaintiff's wife. Approximately ten minutes later, the St. Johns County Beach Patrol received its first distress call of the afternoon.

II. PROCEDURAL HISTORY

On April 16, 1999, Plaintiff filed this wrongful death action against the United States pursuant to the FTCA, 28 U.S.C. § 1346(b). Plaintiff's claim was that, knowing of the danger of rip currents on May 17, 1998, and knowing of the public's presence and use of the beach to go swimming, the United States breached its duty to warn Cirelda Monzon and her daughters of the hidden danger of the rip currents in the surf at the beach on that date.

On June 9, 2000, the United States filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1), arguing that the discretionary function exception contained in 28 U.S.C. § 2680(a) barred Plaintiff's claim. On September 26, 2000, the district court granted the United States' motion to dismiss for lack of subject matter jurisdiction.¹

III. DISCUSSION

On appeal, Plaintiff argues that the district court erred in granting the United States' motion to dismiss. "Because the decision we review adjudicated a motion to dismiss, we accept all of the factual allegations in [Plaintiff's] complaint as true and ask whether, in these circumstances, dismissal of the complaint was appropriate." Berkovitz v. United States, 486 U.S. 531, 540, 108 S. Ct. 1954, 1960-61 (1988).

It is well-settled that "[t]he United States, as sovereign, is immune from suit save as it consents to be sued." Mid-South Holding Co. v. United States, 225 F.3d 1201, 1203 (11th Cir. 2000) (quoting United States v. Sherwood, 312 U.S. 584, 586, 61 S. Ct. 767, 769 (1941)). The FTCA waives the sovereign immunity of the United States for certain torts committed by its employees and authorizes suits against the United States 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).²

The United States' waiver of sovereign immunity under the FTCA is limited, however, by several statutory exceptions. The relevant exception in this case is the "discretionary function" exception, 28 U.S.C. § 2680(a). Under that exception, the United States is not liable for:

[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).

The Supreme Court has established a two-prong analysis to determine when government employee action is protected by the discretionary function exception. See Berkovitz, 486 U.S. at 536-37, 108 S. Ct. at 1958-59. First, the action must involve an element of "judgment or choice." Id. at 536, 108 S. Ct. at 1958. The exception does not apply "when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow," because under those circumstances, "the employee has no rightful option but to adhere to the directive." Id. at 536, 108 S. Ct. at 1958-59. Second, if the challenged conduct involves an element of judgment or choice, "a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. at 536, 108 S. Ct. at 1959. "The basis for the discretionary function exception was Congress' desire 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." Id. at 536-37, 108 S. Ct. at 1959 (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S. Ct. 2755, 2764-65 (1984)). Therefore, the exception "protects only governmental actions and decisions based on considerations of public policy." Id. at 537, 108 S. Ct. at 1959.

The government action at issue here is the United States' failure to warn Plaintiff's wife of the danger of rip currents in the surf near the beach area at Fort Matanzas Inlet on May 17, 1998. We must first determine whether this challenged conduct by the United States involved an element of "judgment or choice." Berkovitz, 486 U.S. at 536, 108 S. Ct. at 1958.

Title 15 U.S.C. § 313 sets forth the following duties of the Secretary of Commerce:

The Secretary of Commerce shall have charge of the forecasting of weather, the issue of storm warnings, the display of weather and flood signals for the benefit of agriculture, commerce, and navigation, the gauging and reporting of rivers, the maintenance and operation of seacoast telegraph lines and the collection and transmission of marine intelligence for the benefit of commerce and navigation, the reporting of temperature and rain-fall conditions for the cotton interests, the display of frost and cold-wave signals, the distribution of meteorological information in the interests of agriculture and commerce, and the taking of such meteorological observations as may be necessary to establish and record the climatic conditions of the United States, or as are essential for the proper execution of the foregoing duties.

15 U.S.C. § 313.

It is clear that, under the statute, the Secretary of Commerce has broad discretion to determine the manner in which it will forecast the weather and issue storm warnings. Because no federal statute, regulation, or policy required the United States to warn Plaintiff's wife of the danger of rip currents in the surf, the first prong of the discretionary function exception is satisfied. Numerous cases have held that government action related to weather forecasting and the issuance of warnings are "discretionary functions." See e.g., Brown v. United States, 790 F.2d 199 (1st Cir. 1986) (concluding that, "[w]ithout question, a weather service constitutes [a discretionary function]" and holding that the United States was not liable for death of fishermen who drowned in storm which NWS failed to predict); Spencer v. New Orleans Levee Bd., 737 F.2d 435 (5th Cir. 1984) (concluding that actions taken by area manager of NWS "were clearly discretionary functions" and holding that plaintiff's claim that NWS negligently failed to predict the weather and tidal conditions accurately and to warn plaintiff was barred by the discretionary function exception); Nat'l Mfg. Co. v. United States, 210 F.2d 263 (8th Cir. 1954) (where plaintiffs brought suit against the United States for negligently making or withholding weather and flood information, holding that, because the Government was "vested by the statute with wide latitude of discretion to determine whether in [its] opinion such forecasting [was] advisable," the "forecasting or omission of forecasts by the [Weather] Bureau [was] a discretionary function"); ...