Sexton v. U.S.
| Decision Date | 18 December 2000 |
| Docket Number | No. 99-102-CIV-ORL-3ABI(22).,99-102-CIV-ORL-3ABI(22). |
| Citation | 132 F.Supp.2d 967 |
| Parties | Jeff SEXTON, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
Eric H. Faddis, Faddis, Oldham & Smith, Orlando, FL.
Robert Henry, Ringer & Henry, P.A., Orlando, FL.
AUSA I. Randall Gold.
Catherine M. Maraist, Trial Attorney, Torts Branch, U.S. Department of Justice, Washington, DC.
R. Brooke Lewis, Office of Chief Counsel, Federal Aviation Administration, Washington, DC.
Plaintiff Jeffery Sexton seeks money damages from the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346, for the cost of repairing his "Steen Skybolt" ["Skybolt"], a small experimental two-seat aerobatic tail-wheel bi-plane. On Sunday, March 29, 1998, Sexton's Skybolt collided with another aircraft just south of the intersection of taxiway Lima and Runway 9 Right at Sanford Airport in Sanford, Florida. Sexton contends that the local controller negligently authorized the ground controller to permit Sexton to cross Runway 9 Right southbound on taxiway Lima without alerting the ground controller to a Cessna also on taxiway Lima. The local controller had directed the Cessna to hold short just south of Runway 9 Right on taxiway Lima, and the Cessna remained there on the local controller's radio frequency.
Sexton also contends that the ground controller negligently instructed Sexton to "cross runway niner right without delay" on taxiway Lima without telling Sexton that he would encounter a Cessna in front of him on the same taxiway on the other side of Runway 9 Right. According to Sexton, the Federal Aviation Administration [the "FAA" or the "government"] negligently failed to adequately staff the Sanford Air Traffic Control Tower in light of the volume of air traffic. Specifically, Sexton claims that the government was negligent in asking one local controller to man two local controller positions — and in asking one ground controller also to man the flight data and clearance delivery controller position — which under-staffing caused or contributed to the collision.
The government denies that the tower controllers breached any duty to Sexton, and denies that any act or omission by the tower controllers was a substantial factor in causing the collision. The government denies that it is liable for negligent understaffing the control tower because sovereign immunity bars that claim. Instead, the government contends that the sole cause of the collision was Sexton's negligence in 1.) failing to maintain a proper lookout for the other aircraft; 2.) failing to operate his aircraft in a prudent and careful manner; and 3.) failing to refuse the ground controller's taxi instruction if he could not comply with it safely. The Court tried the case without a jury on November 6 — 7, 2000.
Under traditional principles of sovereign immunity, the United States is immune from suit except to the extent the government has waived its immunity. In 1946, Congress adopted the Federal Tort Claims Act ["FTCA"], 28 U.S.C. §§ 1346(b), 2671 et seq., which, subject to numerous exceptions, waives the federal government's sovereign immunity for claims based on the negligence of its employees. The FTCA authorizes suits against the United States for damages:
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 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 further provides that the United States shall be liable with respect to tort claims "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.
The FTCA, however, did not waive the sovereign immunity of the United States in all respects. Of particular relevance here, the United States has not waived its sovereign immunity from suit for the discretionary functions of its agencies and employees. 28 U.S.C. § 2680(a). The waiver of sovereign immunity found at § 1346(b) does 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 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); accord, 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), and Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).
The 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. Cohen v. United States, 151 F.3d 1338, 1340 (11th Cir.1998). If the discretionary function exception applies, the court must dismiss the claim brought under the FTCA for lack of subject matter jurisdiction. See Cohen, 151 F.3d 1338, 1340 (); Mid-South Holding Company, Inc. v. United States, 225 F.3d 1201, 1207 (11th Cir.2000).1
Although a plaintiff bears the initial burden of proving subject matter jurisdiction under the FTCA, the burden of proving the applicability of the discretionary function exception (an affirmative defense) falls upon the United States. National Union Fire Ins. v. United States, 115 F.3d 1415 (9th Cir.1997). Courts apply a two-prong test to determine whether the discretionary function exception applies. First, the exception covers only acts that are discretionary in nature, i.e., acts that involve an element of judgment or choice. United States v. Gaubert, 499 U.S. 315, 321, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. at 536, 108 S.Ct. 1954). The exception will not apply when a federal statute, regulation, or policy specifically prescribes the course of action a government employee must follow. 151 F.3d at 1341.
Second, if the conduct in question involves judgment or choice, the court must also decide whether that judgment is of the kind that the discretionary function exception was designed to shield, i.e., "grounded in social, economic and political policy." Gaubert, 499 U.S. at 322 — 23, 111 S.Ct. 1267 (). Once a governmental action has been found to be discretionary, and also has been found to be grounded in public policy, it is immaterial to an immunity analysis whether the action was negligently performed. See Mid-South Holding Company, 225 F.3d at 1207.
Precisely what conduct falls within the scope of the discretionary function exception remains unclear — despite an immense number of cases on the subject. Interpreting the discretionary function too broadly undermines Congress' rationale in enacting the FTCA — the government should be liable for conduct that would be tortious if committed by a private actor. See Indian Towing Co. v. United States, 350 U.S. 61, 68 — 69, 76 S.Ct. 122, 100 L.Ed. 48 (1955). Clearly, the discretionary function exception does not encompass every act of a government employee that involves some element of discretion.
This Court must be careful to avoid any interpretation of the discretionary function exception that would immunize every governmental act. Virtually every act of a government employee, even the most routine ministerial action by the lowest-level employee, involves some judgment or choice. See, e.g., Coulthurst v. United States, 214 F.3d 106 (2d Cir.2000). Even the most routine agency action may always be linked to some general policy regulation. See, e.g., Andrulonis v. United States, 952 F.2d 652, 655 (2d Cir.1991). Were the discretionary function exception to encompass all actions as to which the actor had some choice, it would fully eclipse the FTCA's general waiver of immunity. The courts must exercise restraint in insulating the government from nearly all tort liability, because to do so would frustrate Congress' purpose in enacting the FTCA. See Coulthurst, 214 F.3d at 110.
Determining whether the discretionary function exception applies to a particular decision requires the court to pinpoint the precise reach of the agency policy in question. For any official course of action, there comes a point at which the agency's policy choices — all protected by the discretionary function exception — remain to be executed by low-level officials through routine, implementing actions. It is clear that discretionary conduct is not confined to the policy or planning level. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. The mere fact that a government official performs an action at the "operational level" (as opposed to the planning level) does not remove that official's actions from the discretionary function exception. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267; Cohen, 151 F.3d at 1342. Nevertheless, the distinction between immunized policy and non-immunized operational acts is not always clear.
It is the nature of the decision or conduct, rather than the status of the actor, that governs...
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