Wojciechowicz v. U.S., Civil No. 04-1846(RLA).

• Decision Date: 28 December 2007
• Docket Number: Civil No. 04-2342(RLA).,Civil No. 04-1846(RLA).,Civil No. 04-1856(RLA).
• Citation: 530 F.Supp.2d 421
• Parties: Carol WOJCIECHOWICZ, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Puerto Rico

530 F.Supp.2d 421

Carol WOJCIECHOWICZ, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Civil No. 04-1846(RLA).

Civil No. 04-1856(RLA).

Civil No. 04-2342(RLA).

United States District Court, D. Puerto Rico.

December 28, 2007.

COPYRIGHT MATERIAL OMITTED

Doris Quiñones Tridas, Esq., Quiñones Tridas Law Office, Jaime E. Morales-Morales, Esq., San Juan, PR, PHV Franklin F. Bass, PHV Kimberly M. Jagodzinski, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY, for Plaintiffs.

John Ashcroft, Esq., U.S. Department of Justice, Washington, DC, Miguel A. Fernandez-Torres, Esq., U.S. Attorneys Office, San Juan, PR, for Defendant.

ORDER IN THE MATTER OF DEFENDANT UNITED STATES OF AMERICA'S MOTION FOR PARTIAL DISMISSAL BASED ON THE DISCRETIONARY FUNCTION EXCEPTION

RAYMOND L. ACOSTA, District Judge.

Defendant, the United States of America ("USA"), has moved the court to enter partial judgment dismissing for lack of subject matter jurisdiction all claims asserted against it premised on: (1) the lack of an Emergency Obstruction Video Map (EOVM)¹ at the FAA's San Juan Combined En Route Radar Approach Control Center (CERAP) on January 5, 2002, the date of the accident giving rise to this litigation, (2) the lack of Maximum Elevation Figures (MEF's) on the controller's radar screen, and (3) the failure to provide Maximum Safe Altitude Warning System (MSAW) services to decedent Alexander Wojciechowicz during the fatal flight from the island of Culebra to the airport in the island of Puerto Rico. According to movant, these claims are barred by the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a).

The court having reviewed the memoranda filed by the parties as well as the extensive documentation submitted therewith hereby disposes of the outstanding request as follows.

BACKGROUND

These consolidated cases² arise from the crash of a twin engine Cessna aircraft N441AW into the vicinity of the El Yunque mountain peak of Puerto Rico on January 5, 2002. The aircraft, piloted by Alexander Wojciechowicz, was proceeding from the island of Culebra, off the East coast of Puerto Rico, to the Luis Muñoz Marin International Airport in Carolina, Puerto Rico. In addition to the pilot, four passengers were killed in the accident.

MOTION TO DISMISS

The court is not circumscribed to the allegations in the complaint in deciding a jurisdictional issue brought pursuant to Rule 12(b)(1) Fed.R.Civ.P. It may also take into consideration "extra-pleading material". 5B Charles Allan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed.1990) p. 213. "Where movant has challenged the factual allegations of the party invoking the district court's jurisdiction, the invoking party `must submit affidavits and other relevant evidence to resolve the factual dispute regarding jurisdiction.'" Johnson v. United States, 47 F.Supp.2d 1075, 1077 (S.D.Ind. 1999) (citing Kontos v. United States Dep't of Labor, 826 F.2d 573, 576 (7th Cir.1987)).

In ruling on a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the district court must construe the complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences in favor of the plaintiff. In addition, the court may consider whatever evidence has been submitted, such as the depositions and exhibits submitted in the case.

Aversa v. United States, 99 F.3d 1200, 1210-11 (1st Cir.1996) (citations omitted). See also, Shrieve v. United States, 16 F.Supp.2d 853, 855 (N.D.Ohio 1998) ("In ruling on such a motion, the district court may resolve factual issues when necessary to resolve its jurisdiction.")

DISCRETIONARY FUNCTION EXCEPTION

The United States Government, as a sovereign, is immune from suit unless it consents to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The FTCA is one such waiver and authorizes suits for damages caused by the negligent acts or omissions of its agents or employees "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). See also, Abreu v. United States, 468 F.3d 20, 23 (1st Cir. 2006); Santoni v. Potter, 369 F.3d 594, 602 (1st Cir.2004); Muñiz-Rivera v. United States, 326 F.3d 8, 12 (1st Cir.2003). The FTCA is a limited waiver of sovereign immunity and thus the waiver permits suits only on the terms and conditions strictly prescribed by Congress, Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967).

The grant of subject matter jurisdiction to sue the Government is subject to certain Congressionally enacted exemptions which disallow specific types of suits. Should the court find this exception applicable it will lack subject matter jurisdiction to entertain the claims asserted in the complaint. Muñiz-Rivera, 326 F.3d at 12; Wood v. United States, 290 F.3d 29, 35 (1st Cir.2002).

Exceptions to the liability of the United States appear in 28 U.S.C. § 2680. In relevant part, § 2680(a) exempts actions based on discretionary functions of the federal employees as follows:

(a) Any claim based upon an act or omission of an employee of the Government ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

This exception was designed to preclude claims based upon an alleged abuse of discretionary authority by an officer or employee, whether or not negligence was involved. In essence, it seeks to prevent judicial interference, or second-guessing, via a tort action, of legislative and administrative decisions of which there are no specified guidelines.

The three principal Supreme Court decisions which have interpreted this particular provision are: Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); United States v. Varig Airlines, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); and Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). These cases have held that in situations where there is no room for judgment or decision no leeway for discretion exists and consequently, no protection from liability via application of the discretionary function exception.

The pertinent criteria for this particular immunity has been summarized as follows:

Moreover, assuming the challenged conduct involves an element of judgment, a court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield. 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. The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy.... In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.

Berkovitz, 486 U.S. at 536-37, 108 S.Ct. 1954 (citations and quotation marks omitted).

Thus, two factors will be examined in determining the applicability of the discretionary function exception, i.e., the existence of discretion and whether or not the type of discretion allowed Warrants public policy scrutiny. Initially, the court must ascertain whether the particular conduct at issue involves discretion, i.e., an element of judgment or choice on the part of the agency or employee. In the event that discretion is present the court must then decide whether the discretion in dispute entails public policy considerations involving social, political and/or economic factors. United States v. Gaubert, 499 U.S. 315 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz v. United States, 486 U.S. at 536-37, 108 S.Ct. 1954; Montijo-Reyes v. United States, 436 F.3d 19, 24 (1st Cir.2006); Muñiz-Rivera, 326 F.3d at 15; Shansky v. United States, 164 F.3d 688, 691 (1st Cir.1999).

If there is no room for choice the § 2680 exception is inapposite. Wood, 290 F.3d at 36; Magee v. United States, 121 F.3d 1, 4 (1st Cir.1997).

Should the court determine that the government actions are indeed discretionary whether or not these were negligently carried out is of no consequence for purposes of § 2680(a). Magee, 121 F.3d at 5 n. 2; Attallah v. United States, 955 F.2d 776, 784 n. 13 (1st Cir.1992). "[O]nce governmental actions have been labeled discretionary, it is immaterial whether those actions have been negligently performed for purposes of determining the applicability of the exception in Section 2680(a)." 14 Wright, Miller & Cooper, Federal Practice and Procedure § 3658.1 at 639.

The applicability of the discretionary exception has been extended to encompass operative decisions.

A discretionary act is one that involves choice or judgment; there is nothing in that description that refers exclusively to policymaking or planning functions. Day-to-day management of banking affairs, like the management of other businesses, regularly require judgment as to which of a range of permissible courses is the wisest Discretionary conduct is not confined to the policy or planning level.

United States v. Gaubert, 499 U.S. at 325, 111 S.Ct. 1267.

MSAW Services and MEF's Display

In their response to the USA's petition for dismissal plaintiffs conceded they will not claim at trial either that: (1) the failure of the air traffic control to provide MSAW services or (2) the failure to display MEF's on the controller's radar screen were negligent and a proximate cause of the accident.³ Accordingly, these two arguments raised in defendant's motion to dismiss have been rendered...