Powers v. U.S.

• Decision Date: 02 August 1993
• Docket Number: No. 92-6320,92-6320
• Citation: 996 F.2d 1121
• Parties: , 39 Fed. R. Evid. Serv. 724 Robert D. POWERS; Gary W. Swain; Rebecca Graddy, all individually and on behalf of all persons in Barbour County, Alabama, similarly situated, Plaintiffs-Appellants v. UNITED STATES of America, Defendant-Appellee. Joe L. GLENN; Sarah Glenn; William M. Hagan and Ouida Hagan, and all persons in Montgomery County, Alabama, similarly situated; Robert E. Street, individually and on behalf of all persons in Dallas County, Alabama, similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Johnny CHILDS; Jim H. Strength; Wayne D. Waters; Robert E. Sachsenheimer; Dwight Riley, Sr.; Rutland Mobile Homes; Lynwood Rutland; Doris Rutland and Paula Heath, all individually and on behalf of all persons in Dale County, Alabama, similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. BIG/LITTLE STORES, INC.; R.D. Easters; James Drexel Cook; Nell Cook; Drexel Cook and Mack Wise (a partnership); Cook Chevrolet, Inc.; the Peoples Bank; R.G. Heath, d/b/a Heath Oil Co. and Linda Mills, d/b/a Dixie Printing Company, all individually and on behalf of all persons in Coffee County, Alabama, similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1121

996 F.2d 1121

62 USLW 2076, 39 Fed. R. Evid. Serv. 724

Robert D. POWERS; Gary W. Swain; Rebecca Graddy, all

individually and on behalf of all persons in

Barbour County, Alabama, similarly

situated, Plaintiffs-Appellants v. UNITED STATES of America, Defendant-Appellee.

Joe L. GLENN; Sarah Glenn; William M. Hagan and Ouida

Hagan, and all persons in Montgomery County, Alabama,

similarly situated; Robert E. Street, individually and on

behalf of all persons in Dallas County, Alabama, similarly

situated, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

Johnny CHILDS; Jim H. Strength; Wayne D. Waters; Robert

E. Sachsenheimer; Dwight Riley, Sr.; Rutland Mobile Homes;

Lynwood Rutland; Doris Rutland and Paula Heath, all individually and on behalf of all persons in Dale County, Alabama, similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

BIG/LITTLE STORES, INC.; R.D. Easters; James Drexel Cook;

Nell Cook; Drexel Cook and Mack Wise (a partnership); Cook

Chevrolet, Inc.; the Peoples Bank; R.G. Heath, d/b/a Heath

Oil Co. and Linda Mills, d/b/a Dixie Printing Company, all individually and on behalf of all persons in Coffee County, Alabama, similarly situated, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 92-6320.

United States Court of Appeals, Eleventh Circuit.

Aug. 2, 1993.

M. Roland Nachman, Jr., Balch & Bingham, Montgomery, AL, Maury D. Smith, Joe C. Cassady, Cassady, Fuller & Marsh, Enterprise, AL, for plaintiffs-appellants.

James Eldon Wilson, U.S. Atty., Montgomery, AL, Kenneth E. Vines, Asst. U.S. Atty., Robert S. Greenspan, Windy M. Keats, U.S. Dept. of Justice, Washington, DC, for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before COX and DUBINA, Circuit Judges, and GODBOLD, Senior Circuit Judge.

COX, Circuit Judge:

Plaintiffs sued the United States for uninsured flood losses, alleging that the Government had negligently failed to publicize the availability of federally subsidized flood insurance. The district court dismissed the action as barred by 33 U.S.C. § 702c, a statutory provision of sovereign immunity enacted by Congress in connection with the government's construction of flood control projects. See Powers v. United States, 787 F.Supp. 1397 (M.D.Ala.1992).

We affirm the judgment of the district court dismissing this action, but for reasons other than those used by the district court. Because we hold that the conduct challenged here is protected by the discretionary function exception to the Federal Tort Claims Act (FTCA), we do not reach the more difficult question of whether the United States is immune under the provisions of 33 U.S.C. § 702c.

I. FACTS AND PROCEDURAL BACKGROUND

Invoking the provisions of the Federal Tort Claims Act, plaintiffs filed this class action against the United States for uninsured losses suffered as a result of flash flooding in five Alabama counties in March 1990. ¹ Plaintiffs alleged in their complaints (1) that the National Flood Insurance Act placed a mandatory duty upon the Director of the Federal Emergency Management Agency (FEMA) to publicize the availability of federally subsidized flood insurance; (2) that the Director "totally failed" to perform this duty; and (3) that, as a result, plaintiffs were unaware of the availability of such flood insurance and were uninsured when they suffered flood losses. The Government, pursuant to Federal Rule of Civil Procedure 12(b)(1), moved to dismiss the action for lack of subject matter jurisdiction. The Government contended that these claims were barred by provisions of the Federal Tort Claims Act and that the United States was immune from suit for any liability associated with flood control.

The district court granted the Government's motion to dismiss, holding that 33 U.S.C. § 702c preserves the United States's sovereign immunity in this action. See Powers, 787 F.Supp. at 1398, 1401. Section 702c provides that "[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place." 33 U.S.C.A. § 702c (West 1986). Because the court found the § 702c immunity issue dispositive, it did not address the Government's Federal Tort Claims Act arguments. Plaintiffs appeal.

II. ISSUE ON APPEAL AND CONTENTIONS OF THE PARTIES

We address one issue: whether the discretionary function exception to the Federal Tort Claims Act bars suit against the United States for the alleged failure to publicize federally subsidized flood insurance. ² This is an issue of first impression in this circuit.

The statute in question authorizes the Director to "from time to time take such action as may be necessary in order to make information and data available to the public." 42 U.S.C.A. § 4020 (West 1977 & Supp.1992). The Government maintains that this provision is a clear statutory grant of discretion and therefore protected by the discretionary function exception to the FTCA. The plaintiffs reply that the discretionary function exception does not apply to their claim because they allege that the Director totally failed to comply with a mandatory statutory duty.

III. STANDARD OF REVIEW

We review de novo a district court's interpretation and application of a statute. Williams v. Homestake Mortgage Co., 968 F.2d 1137, 1139 (11th Cir.1992). We may affirm the district court's judgment on any ground that appears in the record, whether or not that ground was relied upon or even considered by the court below. See Young v. Commissioner, 926 F.2d 1083, 1090 (11th Cir.1991) (citing United States v. Arthur Young & Co., 465 U.S. 805, 814, n. 12, 104 S.Ct. 1495, 1501 n. 12, 79 L.Ed.2d 826 (1984)).

IV. DISCUSSION

We begin with this general principle: The United States cannot be sued except as it consents to be sued. See Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 965, 97 L.Ed. 1427 (1953). Congress through the provisions of the Federal Tort Claims Act has authorized suit 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.A. § 1346(b) (West 1976). However, Congress has specifically excepted from the FTCA's limited waiver of sovereign immunity "[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." 28 U.S.C.A. § 2680(a) (West 1965).

In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Supreme Court undertook for the first time to describe the contours of this discretionary function exception to the FTCA. The Court noted that Congress intended to protect "the discretion of the executive or the administrator to act according to one's judgment of the best course." Id. at 34, 73 S.Ct. at 967. While declining to define precisely where discretion begins and ends, the Court stated: "Where there is room for policy judgment and decision there is discretion." Id. at 36, 73 S.Ct. at 968.

Since Dalehite, the Supreme Court has refined its discretionary function analysis. See United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988); United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). This court, in Autery v. United States, 992 F.2d 1523 (11th Cir.1993), has recently summarized the Supreme Court's analysis. To determine whether challenged government conduct falls within the discretionary function exception, a court must engage in a two-part inquiry. Id. at 1526.

First, the court must look to the nature of the challenged conduct and consider whether the conduct involves an element of judgment or choice. Gaubert, 499 U.S. at ----, 111 S.Ct. at 1273; Autery, 992 F.2d at 1526. The exception does not apply where a federal statute or regulation " 'specifically prescribes a course of action for an employee to follow.' " Gaubert, 499 U.S. at ----, 111 S.Ct. at 1273 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958); Autery, 992 F.2d at 1526; see, e.g., Phillips v. United States, 956 F.2d 1071, 1074-77 (11th Cir.1992) (no discretion in Army Corps of Engineers' implementation of mandatory safety responsibilities); Dickerson, Inc. v. United States, 875 F.2d 1577, 1581-82 (11th Cir.1989) (no discretion where EPA policies specifically prescribed course of action for waste removal). Or, as this circuit has stated the converse of this proposition, " 'if a government official in performing his statutory duties must act without reliance upon a fixed or readily ascertainable standard, the decision he makes is discretionary and within the discretionary function exception.' " Alabama Electric Cooperative, Inc. v. United States, 769 F.2d 1523, 1529 (11th Cir.1985) (quoting Miller v. United States, 710 F.2d 656, 663 (10th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 316 (1983)); see, e.g., Brackin v. United States, 913 F.2d 858, 860-61 (11th Cir.1990) (discretion where guidelines for reconstitution of farmland fixed no readily ascertainable standard); Hart v. United States, 894 F.2d 1539, 1546 n. 8 (11th Cir.), cert. denied, 498 U.S. 980, 111 S.Ct. 509, 112 L.Ed.2d 521 (1990) (discretion where there were no specific mandatory guidelines for the government's identification of the remains of servicemen). The relevant inquiry is whether the controlling statute or regulation...