Roath v. United States

• Decision Date: 30 December 2011
• Docket Number: Case No. 10–C–0228.
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Daniel R. ROATH, Mary A. Roath, Plaintiff, v. UNITED STATES of America, Defendant.

843 F.Supp.2d 944

Daniel R. ROATH, Mary A. Roath, Plaintiff,
v.
UNITED STATES of America, Defendant.

Case No. 10–C–0228.

United States District Court,
E.D. Wisconsin.

Dec. 30, 2011.

[843 F.Supp.2d 946]

Lisle W. Blackbourn, Michael J. Frazier, Godfrey Leibsle Blackbourn & Howarth SC, Elkhorn, WI, for Plaintiffs.

Keith S. Alexander, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, for Defendant.

DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S 12(c) MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. 10)
C.N. CLEVERT, JR., Chief Judge.

Daniel R. Roath and Mary A. Roath (“Roaths”) brought suit against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), to recover costs for property damage. The United States seeks judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c),¹ (Doc. 10), asserting it is not subject to liability because the alleged government conduct was a discretionary function that insulates it in accordance with 28 U.S.C. § 2680(a). The Roaths oppose the government's motion for judgment on the pleadings and assert that the discretionary function exception from liability does not apply because the United States violated its mandatory statutes, regulations and policies. (Doc. 15.) For the reason referenced further below, this court grants in part, and denies in part, defendant's 12(c) motion.

I.

The Roaths own approximately one acre in Walworth County, Wisconsin, which is surrounded on three sides by land (“Surrounding Land”) owned by the Wisconsin Department of Natural Resources.²

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(Compl. ¶¶ 3–4.) The United States held a 30–year easement for restoration on the Surrounding Land pursuant to the Wetland Reserve Program, 16 U.S.C. § 3837. (Compl. ¶ 5.) Consequently, the Wisconsin Department of Natural Resources and the United States engaged in demolition, construction and other activities on the Surrounding Land through the Natural Resources Conservation Service (“NRCS”). ³ (Compl. ¶¶ 8–9.) The NRCS caused the removal of drain tiles and the construction of water control structures on the Surrounding Land in the 1920s. (Compl. ¶¶ 10–11.) The Roaths charge that such removal and construction, in conjunction with other NRCS activities on the Surrounding Land, caused the ground water on the Roath's property to elevate in 2008, which resulted in significant property damage. (Compl. ¶¶ 12–24.)

Rule 12(c) permits a party to move for judgment on the pleadings. Fed.R.Civ.P. 12(c); N. Ind. Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 452 (7th Cir.1998). All facts alleged in the complaint are taken as true, with all reasonable inferences drawn in plaintiff's favor. Pisciotta v. Old Nat'l Bancorp, 499 F.3d 629, 633 (7th Cir.2007). The standard used to review a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is applied. N. Ind. Gun & Outdoor Shows, Inc., 163 F.3d at 452.

The complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Pisciotta, 499 F.3d at 633. Factual allegations must be enough to rise above the speculative level. Pisciotta, 499 F.3d at 633. Accordingly, enough facts must be set forth to state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The essence of the motion is that even assuming all asserted facts are accurate, plaintiff has no legal claim. Payton v. Rush–Presbyterian–St. Luke's Med. Ctr., 184 F.3d 623, 627 (7th Cir.1999).

Documents attached to the motion are considered part of the pleading if they are referred to in the complaint and are central to the claim. Wright v. Associated Ins. Co., 29 F.3d 1244, 1248 (7th Cir.1994). Thus in analyzing a 12(c) motion for judgment on the pleadings, the court must evaluate whether attached documents are within, or outside, the pleadings. See Help at Home, Inc. v. Med. Capital, L.L.C., 260 F.3d 748, 752–753 (7th Cir.2001). The court may consider public records without converting a 12(c) motion to one for summary judgment. Pugh v. Tribune Co., 521 F.3d 686, 691 (7th Cir.2008).

In opposition to the United State's 12(c) motion for judgment on the pleadings, the Roaths filed an affidavit including copies of various publically available regulations, manuals, handbooks, guidelines and directives. (Doc. 5). The affidavit also includes a deposition transcript and an exhibit to the deposition, from a related state action between the Roaths and the Wisconsin Department of Natural Resources.⁴ For the purposes of the government's 12(c) motion this court considers the publically

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available documents filed by the Roaths. However, this court finds that the deposition and exhibit are matters outside the pleadings and will not consider these documents. ⁵

II.

The United States is protected from suits without its consent pursuant to the ancient common law doctrine of sovereign immunity. Shuler v. United States, 531 F.3d 930, 932 (D.C.Cir.2008); see also FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (“[S]overeign immunity shields the Federal Government and its agencies from suit.”). Under the Federal Tort Claims Act “FTCA”, the United States waives its sovereign immunity for civil actions in circumstances where 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). The FTCA includes a number of exceptions to its broad waiver of sovereign immunity. Berkovitz v. U.S., 486 U.S. 531, 535, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). One such exception, known as the “discretionary function” exception, states that Section 1346(b) shall not apply to:

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). The court applies a two-part analysis to determine whether a challenged governmental action or omission constitutes a discretionary function that gives rise to immunity from liability. Berkovitz, 486 U.S. at 535, 108 S.Ct. 1954;Grammatico v. United States, 109 F.3d 1198, 1200 (7th Cir.1997).

First, the court ascertains whether the subject acts or omissions involve an element of judgment or choice. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). However, the requirement of judgment or choice is not satisfied if a federal statute, regulation or policy prescribes a course of action for an employee to follow and presents no rightful option but to adhere to the directive. Id. Therefore, if the government imposes a specific mandatory directive, then conduct pursuant to the directives is not discretionary. See Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954;Palay v. United States, 349 F.3d 418, 427 (7th Cir.2003). Under circumstances where the relevant statutes and regulations include factors upon which decisions are to be made, the Seventh Circuit maintains that the “sheer number of factors involved [in such decisions] suggests that Congress intended these decisions to be made as an exercise of judgment and choice.” Rothrock v. United States, 62 F.3d 196, 199 (7th Cir.1995) (citing Gaubert, 499 U.S. at 322, 111 S.Ct. 1267).

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Second, “even assuming that the challenged conduct involves an element of judgment, such conduct is protected only if that judgment is of the kind that the discretionary function exception was designed to shield....” Gaubert, 499 U.S. at 322–23, 111 S.Ct. 1267;see also Reynolds v. United States, 549 F.3d 1108, 1112 (2008) (finding that malicious and bad faith conduct does not fall within the discretionary function exception). “Because the purpose of this exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy ... the exception protects only governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S. at 323, 111 S.Ct. 1267. Thus, only governmental actions and decisions based on considerations of public policy are protected by the exception. Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954.

Decisions that require a balancing of safety and economics fall within the exception. See Grammatico, 109 F.3d at 1202;Maas v. United States, 94 F.3d 291, 297 (7th Cir.1996); see also Oceanview Farms v. United States, No. 99–2096, 2000 WL 530355 (4th Cir.2000) (“[A]lthough NRCS design decisions involved technical engineering judgements, the design considerations—including functional effectiveness, safe performance, cost effectiveness, and adaptation of surrounding water and landscape resources—were also susceptible of policy analysis ... [T]herefore, [ ] the design consideration fell within the discretionary function exception.”).

In Cisco v. United States, 768 F.2d 788, 789 (7th Cir.1985) the Seventh Circuit found that “[w]hether the EPA acted negligently or even abused its discretion has no effect on the applicability of the discretionary function exception.” Thus, despite the Roaths' contention that the United States was negligent in planning and executing restoration work on the Surrounding Land, this court first analyzes the relevant statutes, regulations and agency policies to decide whether the discretionary function exception applies.

A. Statutes and Regulations

Congress authorized the United States Department of Agriculture (“USDA”) to restore, protect, or enhance wetlands on private land through the Wetlands Reserve Program. 16 U.S.C. § 3837(a)(2). Section 3837...