S.R.P. v. United States

• Decision Date: 10 April 2012
• Docket Number: No. 10–4011.,10–4011.
• Citation: 676 F.3d 329
• Parties: S.R.P. (a minor), by and through Maria Rivera ABUNABBA (as mother and next of kin)S.R.P., Appellant v. UNITED STATES of America; National Park Service, U.S. Department of Interior.
• Court: U.S. Court of Appeals — Third Circuit

676 F.3d 329

S.R.P. (a minor), by and through Maria Rivera ABUNABBA (as mother and next of kin)S.R.P., Appellant

v.UNITED STATES of America; National Park Service, U.S. Department of Interior.

No. 10–4011.

United States Court of Appeals, Third Circuit.

Argued Dec. 5, 2011.Filed: April 10, 2012.

Pamela L. Colon (Argued), Christiansted, St. Croix, USVI, for Appellant.

Thomas M. Bondy, Lowell V. Sturgill, Jr. (Argued), United States Department of Justice, Civil Division, Washington, DC, Angela P. Tyson–Floyd, Office of United States Attorney, Christiansted, VI, for Appellees.

Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

S.R.P., a minor, appeals from an order of the District Court dismissing his claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The action arose out of a 2004 incident in which S.R.P. was bitten by a barracuda while playing near the shore of Buck Island Reef National Monument (“Buck Island Monument” or “the Monument”). S.R.P., through his mother, filed suit against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., alleging that the Government negligently failed to warn of the danger posed by barracudas to shallow water bathers. The District Court dismissed the case on the basis that the discretionary function exception to the FTCA deprived it of jurisdiction, and thus immunized the Government from suit. For the reasons set forth below, we will affirm.

I. Facts and Procedural History

On May 9, 2004, while sitting on the beach at Buck Island (“Buck Island” or “the Island”) with his feet in shallow water, then 12–year–old S.R.P. was bitten by a barracuda and suffered a severe laceration to his foot. His third and fourth toes were nearly severed and surgery was required to repair the damage. Buck Island is located 1.25 miles off the northeast side of the island of St. Croix in the U.S. Virgin Islands. It is a unit of the National Park System under the control and management of the National Park Service (“the NPS”). Prior to 2001, Buck Island Monument included Buck Island itself and 704 marine acres surrounding the island. In 2001, President Clinton issued an executive proclamation expanding the boundaries of the Monument, designating the surrounding 18,869 marine acres as a protected area, and directing the Secretary of the Interior to “prohibit all extractive uses.” Proclamation No. 7392, 66 Fed.Reg. 7336 (Jan. 17, 2001). Pursuant to this directive, in 2003, Buck Island and its surrounding waters were closed to fishing.

Buck Island is accessible only by watercraft, and is open to the public for recreational activities, such as swimming, picnicking, hiking, snorkeling, and scuba diving. Approximately 55,000 to 60,000 people visit each year. Most tourists travel to the Island via private concessionaries, which offer half-day or full-day trips. Visitors may also access Buck Island by private boat, but any owner of a vessel who wishes to visit must apply for an anchoring permit. At the time of application, boat owners receive a packet of information, including the Buck Island Reef Brochure (“the Buck Island brochure”), which provides general information about Buck Island, including natural hazards in the area. A portion of the brochure labeled “Safety Tips for Sea and Shore” states:

Reef and marine hazards: Shallows and reefs near shore contain sharp corals, stingrays, spiny sea urchins, fire coral, fire worms, and barbed snails. Cuts from marine organisms infect quickly, so clean and medicate them. Portuguese man-o-war and sea wasps, both stinging jellyfish, are rarely found here. Barracuda and sharks, if encountered, should be treated with caution but are not usually aggressive toward snorkelers.

The same information is posted, in both English and Spanish, on signs located at the picnic areas on the Island.

Barracuda is a species of fish indigenous to the Caribbean Sea and the waters around Buck Island. Although barracudas are not generally aggressive toward humans, it is believed that they may attack humans if they mistake a limb or other body appendage for prey. Prior to the attack at issue in this case, NPS officials were aware of only one other incident in the previous twenty-two years in which a barracuda had bitten a human at or around Buck Island. In that attack, which occurred sometime before 1999, a boat captain was bitten while sitting on the side of his boat with his feet dangling in the water. The NPS attributed the attack to the boat captain's pouring fish oil in the water around his feet. At the time he was bitten, there were several snorkelers in the water nearby, none of whom were attacked.

On June 16, 2006, S.R.P., through his mother, brought a tort action against the United States under the FTCA, alleging that the NPS failed to adequately warn visitors about the dangers posed by barracudas, and that the NPS failed to properly staff Buck Island.¹ On October 27, 2009, the Government moved to dismiss the case for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) on the basis that the FTCA's discretionary function exception applied. After allowing discovery on the jurisdictional question, the District Court of the Virgin Islands granted the motion to dismiss on October 1, 2010, concluding that the discretionary function exception barred S.R.P.'s claims because NPS policies gave local NPS officials discretion to craft appropriate warnings regarding potential safety hazards, and the question of whether and to what extent to warn involved significant policy considerations. Perez v. United States, No. 06–0080, 2010 WL 3927628 (D.Vi. Oct. 1, 2010).

S.R.P. filed a timely notice of appeal. His primary contention on appeal is that the District Court erred in concluding that the discretionary function exception barred his claims because the NPS was aware that barracudas posed a danger to swimmers, and thus had a non-discretionary duty to warn. He also argues that the District Court failed to apply the relaxed standard required for factual challenges to subject matter jurisdiction under Rule 12(b)(1), and that the District Court improperly shifted to him the burden of proving the non-applicability of the discretionary function exception.

II. Jurisdiction and Standard of Review

S.R.P.'s complaint invoked the District Court's jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3), 1367(a), and the FTCA, 28 U.S.C. §§ 2674 and 1346(b). We have appellate jurisdiction over an appeal from a dismissal for lack of subject matter jurisdiction under 28 U.S.C. § 1291. Because the Government's motion presented a factual challenge to subject matter jurisdiction, the District Court was not confined to the allegations in S.R.P.' s complaint, and was entitled to independently evaluate the evidence to resolve disputes over jurisdictional facts. Turicentro, S.A. v. Am. Airlines, Inc., 303 F.3d 293, 300 n. 4 (3d Cir.2002) ( overruled on other grounds by Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462 (3d Cir.2011)); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). We exercise plenary review over the applicability of the discretionary function exception. Merando v. United States, 517 F.3d 160, 163–64 (3d Cir.2008). We review the District Court's findings of fact related to jurisdiction for clear error. CNA v. United States, 535 F.3d 132, 139 (3d Cir.2008). We exercise plenary review in determining whether the District Court applied the correct standard in evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and whether it placed the burden of proof on the proper party. See id.

III. Discussion

A. The Federal Tort Claims Act Framework

The United States, “as a sovereign, is immune from suit unless it consents to be sued.” Merando, 517 F.3d at 164 (citing United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)). The FTCA is a “partial abrogation” of that immunity, Gotha v. United States, 115 F.3d 176, 179 (3d Cir.1997), and permits suits against the United States for torts committed by “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, however, “imposes a significant limitation,” Gotha, 115 F.3d at 179, by providing that the provisions of 28 U.S.C. § 1346 shall not apply to:

[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).

This discretionary function exception “marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The exception “does not apply to every situation in which there is an actual option to choose between courses of action or inaction.” Gotha, 115 F.3d at 179. Rather, it immunizes from second-guessing “legislative and administrative decisions grounded in social, economic, and political policy.” Id. (citing Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755).

As a threshold matter, before determining whether the discretionary function exception applies, a court must identify the conduct at issue. Merando, 517 F.3d at 165. The...