Mendivil v. United States of America et al

Filing 65

ORDER granting 53 Motion to Dismiss for Lack of Subject Mater Jurisdiction and for Summary Judgment. The Clerk of Court is directed to enter judgment in favor of dfts and to terminate the case. Signed by Judge Robert C Broomfield on 3/31/2009. (LAD)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Ivan Mendivil, a married man Plaintiff, vs. United States of America; United States Department of Army, Defendants.

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No. CIV 06-2651 PHX RCB ORDER

Introduction Plaintiff Ivan Mendivil, while working as a gunner at the United States Army Yuma Proving Ground, lost three fingers when the clip on the mortar which he was firing allegedly "slipped off the appendage and fired prematurely[.]" Co. (doc. 1) at 3, ¶ 8. Plaintiff is bringing this negligence action against the United States and the United States Department of the Army ("the government") pursuant to the Federal Tort Claims Act ("FTCA"). Currently pending before the court is the government's motion to

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dismiss for lack of subject matter jurisdiction1 on the basis of the discretionary function exception to the FTCA, and for summary judgment (doc. 53).2 Background3 In February 19, 2004,4 plaintiff was working as a civil contract employee of EC III, Inc. at the Yuma Proving Ground ("YPG"), a United States Army test facility. ¶ 1 (citation omitted). testing a radar system. Mot. (doc. 53) at 3,

He and Army civilian personnel were Id. at 3, ¶ 2. As part of that process,

"[m]ortar rounds are fired to test the ability of the radar to track the location of the mortar tube." (citations omitted). Id. at 3, ¶ 2:6-7

Plaintiff was working as a gunner on the Id. at 3, ¶ 3:10 and

mortar crew, loading and firing the mortar. 12 (citation omitted). employee, Donald Dyer.

His mortar crew leader was an Army civilian Id. at 3, ¶ 3:11-12.

In listing the "Government and Contractor Support Personnel

The United States cites to "Federal Rule of Criminal Procedure 12(b)(1) and (6)" as the basis for its motion to dismiss for lack of subject matter jurisdiction. Mot. (doc. 53) at 1:18-19 (emphasis added). This is an obvious misstatement given that this is a civil action. Regardless, the "applicability of the discretionary function exception may be determinable upon a motion to dismiss or for summary judgment." Hazelwood v. United States, 2006 WL 1599344, at *2 (D.Ariz. June 5, 2006) (internal quotation marks and citations omitted). Given the parties' heavy reliance upon matters beyond the complaint, and the fact that the United States also relies upon Rule 56 in bringing this motion, the court will treat this motion as one for summary judgment under that Rule. Plaintiff requests oral argument, but the United States did not. The court denies this request because the issues have been fully briefed and oral argument will not aid its decisional process. See Fed. R. Civ. P. 78; Lake at Las Vegas Investors Group, Inc. v. Pac. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).
3 4 2

1

Unless otherwise indicated, these facts are undisputed.

The complaint seems to conflict as to the date of injury. At one point it alleges that "[p]laintiff was injured on February 19, 2004[,]" but in another paragraph it alleges that "mortars were being fired as part of a test of a radar system[] . . . [o]n February 10, 2004[.]" Co. (doc. 1) at 2, ¶¶ 4:4 and 6:14.

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Supervisor's Responsibilities," the Yuma Test Center Standard Operating Procedures for Range Operations ("SOPs") states, among other things: The supervisor of each support section assigned to a test shall ensure that personnel: . . . Know that they may question and request from the TD clarification of any procedure suspected to be hazardous or unsafe. Id., exh. F thereto at 10-11, ¶ 2-7(d). Consistent with that SOP,

the YPG Acting Chief of the Munitions and Weapons Division, Larry Bracamonte, testified that if a person "feels the procedure is unsafe, he has the authorization to stop the test[.]" Id. at ¶ 5, and exh. A thereto at 71:9-10. "Assuming" on the day of the

incident, "an EC III employee[] . . . thought the wrong clip was being used[,]" Mr. Bracamonte further testified that "[t]hey should stop the operation at that time, . . . and contact the supervision [sic] for guidance." testified similarly. Id., exh. A thereto at 71:14-22. Donald Dyer

Mr. Dyer was asked, "If someone sees

something that they feel is unsafe on the range, what can they do to stop it?" Id., exh. C thereto at 61:21-22. He responded,

"First of all[,]" they "bring it to the . . . Test Director's Attention[.]" Id., exh. C thereto at 61:23-24. If the Test

Director "feels it's unsafe, they'll stop the test and then they'll investigate it[.]" Id., exh. C thereto at 61:24-25. But here,

"[n]either Plaintiff nor anyone else on the mortar crew requested a halt in the test firing on the day of Plaintiff's injury." 3, ¶ 5. It is undisputed that "[t]his incident involved the use of a `fuze clip' to suspend the tip of a mortar round (cartridge) at the -3Id. at

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top of the mortar tube (cannon)."

Id. at 3, ¶ 6.

"A lanyard is

attached to the clip and is then pulled to drop the round down the tube after all test personnel are moved a safe distance away to a shelter called a `bombproof.'" Id. at 3-4, ¶ 6 (citations omitted). "Generally, there is a specific type of clip for use on each mortar round fuze type[,]" as evidenced by the "Mortar Fuze Clip/Body Clip Identification Chart [("clip chart")]," which is part of the SOPs. Id. at 4, ¶ 7 (citing exh. G thereto, App. H). But, on the day of the incident, "[t]he mortar round being fired . . . was an M374A3 cartridge (which has an M567 PD fuze)." Id., at 4, ¶ 8. That particular mortar round was not on the Id. (citation omitted). What is more, the

identification chart.

M374A3 cartridge "will accept either the B-clip or the C-clip." Id. at 4, ¶ 8. "If a mortar round will accept either fuze clip, Id.

the gun crew has the discretion to decide which one to use." at 5, ¶ 11 (citing, inter alia, exh. B thereto at 99:1-24). Plaintiff did controvert three of the United States' factual statements, PSOF (doc. 59) at 1:19-23, but this is not one.5

Somewhat surprisingly, the parties' respective statements of facts did not explain how the accident occurred. resorting to the complaint. So, the court is

It stresses, however, that these

allegations are not dispositive of the present motion and are provided for background purposes only. Evidently, after the testing was done for the day "a few
5

Even the three facts which plaintiff did controvert, he did not do so in conformity with LRCiv 56.1(b). Plaintiff simply indicated that he was "controvert[ing] the following fact as stated by Defendant[.]" PSOF (doc. 59) at 1. He then listed numbers "9, 10, [and] 14[.]" Id. He did not, as that Rule requires, "set forth . . . a reference to the specific admissible portion of the record supporting [his] position[.]" See LRCiv 56.1(b).

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mortar rounds remained."

Co. (doc. 1) at 2, ¶ 7.

A decision was

made to fire those remaining rounds.

Instead of using the clip

which they had been using all day, the gunners switched to another clip. Plaintiff alleges that this replacement clip "was inherently

unstable," and that he was injured when "the round slipped off the appendage and fired prematurely[.]" Id. at 3, ¶ 7. After exhausting his administrative remedies, plaintiff commenced the present action. Plaintiff alleges that the United

States was negligent in two ways: first, in "permitting testing to continue with the use of the replacement [i.e. the B-clip instead of the C-clip][.]" Co. (doc. 1) at 3, ¶ 10, and second, "in violating its own standing operating procedures [("SOPs")] for ground weapons firing." Id. Plaintiff makes a related allegation

that the SOPs "were incomplete and inadequate with respect to firing 81 mm. mortar rounds." Id. Relying upon the discretionary

function exception to the FTCA, as noted at the outset, the United States asserts that subject matter jurisdiction is lacking here. Thus, it asserts, it is entitled to summary judgment on plaintiffs' claims. Discussion I. Governing Legal Standards Citing to two cases outside this Circuit, the United States asserts that "plaintiff bears the burden of showing that the discretionary function exception . . . does not apply here. (Doc. 53) at 8:21-23 (citations omitted). Mot.

The United States has it See St. Tammany

exactly backwards, at least in the Ninth Circuit.

Parish v. Federal Emergency Management Agency, 556 F.3d 307, 315 n. 3 (5th Cir. 2009) (citing cases) (recognizing "sister courts of -5-

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appeal are split"

on "whether the plaintiff or the government

bears the burden of proof to show whether a discretionary function exception . . . applies[]"). "While the [plaintiff] bear[s] the

initial burden of proving subject matter jurisdiction under the FTCA, the United States bears the ultimate burden of proving the applicability of the discretionary function exception." Welsh v.

U.S. Army, 2009 WL 250275, at *2 (N.D.Cal. Feb. 3, 2009) (citing Terbush, 516 F.3d at 1128) (emphasis added). Not only that, "[t]he

[United States'] failure to satisfy either the first or second part `of the two-part discretionary function test' defeats application of that exception." Casillas v. U.S., 2009 WL 735193, at *11

(D.Ariz.) (citing Sabow v. U.S., 93 F.3d 1445, 1454 n. 10 (9th Cir. 1996)), Casillas v. U.S., adopted by 2009 WL 735188 (D.Ariz. Mar. 19, 2009). On the other hand, "[i]f the federal defendant meets

the burden of proving that the discretionary function exception applies, then the federal courts lack subject matter jurisdiction to hear plaintiffs' claim." Welsh, 2009 WL 250275, at *2 (citing

GATZ/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir. 2002)). "To meet this burden in the context of a summary judgment motion, [the United States] must `adduce[] sufficient evidence to establish that no genuine issues of material fact remain for trial with respect to the discretionary function exception.'" Hazelwood, 2006 WL 1599344, at *2 (quoting Prescott v. United States, 973 F.2d 696, 701 (9th Cir. 1992)). The fact that the issue is the

applicability of the discretionary function exception does not change the fundamental rule that on a motion for summary judgment, the court must view the pleadings and supporting documents in the -6-

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light most favorable to the non-moving party. 56(c).

Fed. R. Civ. P.

With these standards firmly in mind, the court will

consider the parties' respective discretionary function exception arguments. II. Discretionary Function Exception "The FTCA waives the government's sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of their employment." States, 516 F.3d 1125, 1128 (9th Cir. 2008). Terbush v. United The FTCA expressly

provides that the government can be sued "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). There are "a number

of waivers to this broad waiver of sovereign immunity[.]" Terbush, 516 F.3d at 1129. The exception which the United States invokes

herein is "the oft litigated `discretionary function exception[.]'" See id. The purpose of this exception, is "to insulate certain

governmental decision-making from `judicial `second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.'" Id. (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 l.Ed.2d 660 (1984)). As the Supreme Court set forth in Berkovitz v. United States,

25 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the 26 applicability of the discretionary function exception is governed 27 by a two-step analysis. First, the court must "determine whether

28 the challenged actions involve an `element of judgment or choice." -7-

1 Terbush, 516 F.3d at 1129 (quoting United States v. Gaubert, 499 2 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). Under this

3 inquiry, the focus is on the "nature of the conduct, rather than 4 the status of the actor[.]" 5 1267). Gaubert, 499 U.S. at 322, 111 S.Ct. at

Therefore, "the discretionary element is not met where a

6 `federal statute, regulation, or policy specifically prescribes a 7 course of action for an employee to follow.'" Terbush, 516 F.3d at 8 1129 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954). "If

9 there is such a statute or policy directing mandatory and specific 10 action, the inquiry comes to an end because there can be no element 11 of discretion when an employee `has no rightful option but to 12 adhere to the directive.'" Id. (quoting Berkovitz, 486 U.S. at 536, 13 108 S.Ct. 1954). 14 no discretion." 15 Cir. 1998). Succinctly put, "[w]ithout choice, there can be Miller v. United States, 163 F.3d 591, 594 (9th

On the other hand, when "a specific course of action

16 is not prescribed, . . . an element of choice or judgment is likely 17 involved in the decision or action." 18 Terbush, 516 F.3d at 1129.

If the United States meets the first part of the Berkovitz

19 test, the court must consider "`whether that judgment is of the 20 kind that the discretionary function exception was designed to 21 shield,' namely, `only governmental actions based on considerations 22 of public policy.'" Id. at 1129 (quoting Berkovitz, 486 U.S. at 23 536-37, 108 S.Ct. 1954). "Public policy . . . include[s] decisions

24 `grounded in social, economic, or political policy.'" Id. (quoting 25 Varig, 467 U.S. at 814, 104 S.Ct. 2755). As the United States is

26 quick to point out here, "[e]ven if the decision is an abuse of the 27 discretion granted, the exception will apply." 28 inter alia, 28 U.S.C. § 2680(a)). -8See id. (citing,

1 2

A. "Element of Judgment or Choice" Bypassing the element of judgment or choice, initially the

3 United States addressed only the second Berkovitz step - policy 4 considerations. Confronting this choice element head-on, however,

5 plaintiffs assert that the SOPs "mandated policies and procedures 6 for weapons testing." Resp. (Doc. 6) at 6:4. Thus, plaintiff

7 reasons that the United States cannot satisfy the first element of 8 the discretionary function exception to the FTCA. 9 The United States first faults plaintiff for not

10 "identify[ing] with specificity" the purportedly mandatory SOPs 11 which he claims were violated. 12 omitted). Reply (doc. 64) at 7:3-4 (citations

Plaintiff's lack of specificity did make review of the It is not a sufficient basis,

13 detailed SOPs record more difficult.

14 as the United States puts it, however, to "defeat the first part of 15 the [Berkovitz] test." Id. at 7:7 (citations omitted). This is

16 especially so given that the burden of proof is on the United 17 States - not on the plaintiff. 18 Moreover, the procedural posture of the cases upon which the

19 United States relies to support this argument is different than the 20 procedural posture of this action. The courts in both ALX El

21 Dorado, Inc. v. Sw. Sav. & Loan Ass'n/FSLIC, 36 F.3d 409 (5th Cir. 22 1994), and Johnson v. United States, 47 F.Supp.2d 1075 (S.D.Ind. 23 1999), were faced with Rule 12(b) motions to dismiss. Necessarily

24 then, they were examining only the sufficiency of the allegations 25 in the complaint. Accordingly, in ALX El Dorado, the Fifth Circuit

26 held that plaintiffs' averments of "only some generalized failures 27 to follow mandatory rules" were "insufficient, in themselves, to 28 defeat the first part of the [Berkovitz] test." -9ALX El Dorado, 36

1 F.3d at 411-412 (footnote omitted) (emphasis added).

The Fifth It

2 Circuit did not affirm dismissal on that basis alone, however. 3 also addressed the second Berkovitz step, finding the complaint 4 equally deficient in that regard. 5

Similarly, the Johnson court was examining the sufficiency of The complaint there only "generally

6 complaint under Rule 12(b)(1).

7 alluded to the Marshals' Policy Manual and vaguely suggest[ed] that 8 the actions taken by the Marshals . . . were contrary to an 9 enumerated policy." Johnson, 47 F.Supp.2d at 1080 n. 3.

10 "[W]ithout connecting the particular actions of the Marshals with a 11 policy from the Manual," the court held that "the vacillatory 12 roamings of Plaintiffs' conjecture will not save this part of their 13 claim from dismissal." Id. The court further observed that the

14 policy manual had not been submitted to the court and thus could 15 not be considered. Not only that, in contrast to plaintiff

16 Mendivil, the Johnsons did not respond at all "to the substance of 17 the [United States] motion" to dismiss. 18 Id. at 1079.

In the present case, however, the discretionary function

19 exception arises in the broader procedural context of a summary 20 judgment motion. Therefore, the court is looking beyond the And, unlike Johnson, the SOPs upon

21 allegations in the complaint.

22 which plaintiff is relying to show a mandatory duty are before the 23 court. Further, plaintiff does reference two specific SOPs in his Thus, plaintiff has gone beyond the "vague suggestions"

24 response.

25 and "conjecture" which the Johnson court found were insufficient to 26 overcome the discretionary function exception. Preferring to reach

27 the merits, and given that El Dorado and Johnson are 28 distinguishable, the court will not, despite the United States' - 10 -

1 urging, grant this motion due to a lack of specificity by plaintiff 2 in identifying the source of the claimed mandatory duty. 3 Focusing on the element of choice, in its statement of facts

4 the United States declares, "[i]f a mortar round will accept either 5 fuze clip, the gun crew has the discretion to decide which one to 6 use." Mot. (doc. 53) at 5, ¶ 11 (emphasis added). Based upon

7 photographs of the M374A3 cartridge and fuze in the record, the 8 United States further declares that the M374A3 cartridge and fuze, 9 which plaintiff was using at the time of the accident, "will accept 10 either the B-clip or the C-clip." 11 omitted). Id. at 4, ¶ 8 (citation Thus, in

Plaintiff did not controvert these statements.

12 accordance with LRCiv 56.1(b), they are deemed admitted. 13 The record supports these statements. During his deposition,

14 Wayne Schilders, Chief Weapons Operation Division, agreed that "if 15 . . . a B clip was routinely sticking, . . . it would have been 16 within [the mortar crew leader's] discretion to use a C clip[.]" 17 Id., exh. B thereto at 99:2-9. Mr. Schilders further explained,

18 if there is "a clip that works [and] everything is the same," then 19 "part of the leeway given the gun crew leader," such as Mr. Dyer, 20 is to "use whichever one [clip] is going to work for the day." 21 Id., exh. B thereto at 99:15-19. If the M374A3 cartridge and fuze

22 had been listed in the clip chart, then perhaps use of a certain 23 clip with this cartridge would be required. 24 exh. G thereto at 74. See Mot. (doc. 53),

The fact remains, though, that the M374A3

25 cartridge is not among the cartridge combinations which that chart 26 lists. 27 To defeat summary judgment, plaintiff, as the non-moving

28 party, has the burden of showing a genuine issue of material fact - 11 -

1 as to whether the United States had discretion here. 2 explained, plaintiff did not meet that burden. 3

As just

Plaintiff cannot overcome that burden by relying upon First, as

4 "mandatory" duties which purportedly the SOPs create.

5 the United States points out, the only two SOPs from which 6 plaintiff quotes (SOP ch. 1 §§ 1-1(a) and 1-2(a)) "are broad, 7 general statements of purpose and scope." Id. at 8:18. Not only

8 that, plaintiff selectively quotes from section 1-1.

It is self-

9 evident that that section entitled "Purpose and Scope" does not 10 place any kind of mandatory duty on the United States. This

11 reading of section 1-1(a) is reenforced when a sentence which 12 plaintiff did not quote is taken into account. That sentence

13 states, "This [SOP] prescribes general range control precautions, 14 instructions, and danger zones necessary in all types of test 15 operations . . . within the [YPG]." 16 at 1, § 1-1(a) (emphasis added). PSOF (doc. 59), exh. 1 thereto

There is nothing in those

17 "[g]eneral" statements and statements of "[p]urpose and [s]cope" 18 though, "compell[ing][,]" as plaintiff puts it, the "use of . . .

19 various components involved." See Resp. (doc. 60) at 7:1-2. 20 Plaintiff also is relying upon the following SOP: "This SOP

21 provides the necessary information for establishing a surface 22 danger zone and airspace danger zone data required for the safe 23 testing of weapon systems, munitions, and explosive devices 24 described herein." Id., exh. 1 thereto at 1, § 1-2(a). Clearly

25 this broad "General" statement does not impose any type of 26 mandatory duty. Moreover, as the United States is quick to point

27 out, the SOPs are prefaced by a boldfaced "NOTE" explicitly 28 declaring: "Persons performing hazardous operations on YPG are - 12 -

1 advised that the guidance provided herein is not intended to be 2 complete itself." Id., exh. 1 thereto at 1 (emphasis added). This

3 language suggests an element of discretion. 4 Plaintiff's reliance upon the SOPs is further undermined by Plaintiff states that

5 the fact that two of them are inapplicable.

6 section 6-1 "mandates that when a weapon or component of a weapon 7 is determined to be unsafe, the weapon or component will be 8 condemned." Resp. (doc. 60) at 6. Under the express terms of

9 that section a "weapon or component will be condemned[]" only 10 "[w]hen inspection . . . determines that the weapon or component is 11 unsafe for firing[.]" No such inspection occurred here.

12 Condemnation simply is not an issue. 13 Based upon SOP § 10-1, plaintiff states that "[n]o employee

14 has the discretion to modify ammunition or a component at the gun 15 position." PSOF (doc. 59) at 2, ¶ 5 (citation omitted). That SOP

16 actually states: "No ammunition item or component will be 17 disassembled or modified on a range or at a gun position without an 18 approved hazard analysis and specific detail SOP prepared for that 19 purpose." PSOF (doc. 59), exh. A thereto at 47, § 10-1(d)(2). In

20 any event, where, as here, one of two fuze clips may be used on a 21 cartridge, the use of one as opposed to the other is not a 22 modification. Thus, plaintiff's reliance upon this SOP to support

23 a mandatory duty is unavailing. 24 In addition to the foregoing, plaintiff mentions three other None of those

25 SOPs as the source of a purported mandatory duty. 26 SOPs establish such a duty though.

Looking to Chapter 2-6, setting

27 forth "Test Director's Responsibilities," plaintiff claims that YPG 28 employees do not have discretion in "weapons firing procedures" - 13 -

1 because those SOPs "provide[] that . . . appropriate safety 2 procedures must be implemented and followed[.]" Resp. (Doc. 60) at 3 6 (citation omitted). A similar lack of discretion can be found,

4 according to plaintiff, because the SOPs "require[] that the 5 equipment utilized must be safe[.]" Id. (citation omitted). 6 that SOP actually states, is that one of the Test Director's 7 responsibilities is to "[c]onduct tests with personnel, materiel, 8 and equipment considered safe." 9 94, § 2-6(j). PSOF (doc. 59), exh. 1 thereto at What

That section goes on to state that "Test Directors

10 are vested with authority to issue orders to correct conditions 11 deemed to be hazardous or potentially hazardous[]" ­ a fact 12 plaintiff seemingly disregards. See id. This grants Test These broad, generic

13 Directors with some element of discretion.

14 safety statements do not, in this court's view, support plaintiff's 15 view that YPG employees "had no discretion in weapons firing 16 procedures[,]" particularly with respect to which clip to use on 17 the M374A3 cartridge. 18 See Resp. (doc. 60) at 1 (emphasis omitted).

Finally, in his statement of facts, plaintiff claims that "Gun PSOF (doc.

19 Crews were mandated to use only fuze clips provided." 20 59) at 2, ¶ 7 (citation omitted).

To support this assertion,

21 plaintiff cites to SOP § 9-1 ("Bates #49"), "Pre-Fire 22 Operations[,]" setting forth who is "responsible" for which 23 "action" under those conditions. There is nothing in this SOP to The only potential

24 support plaintiff's assertion, however.

25 relevant statement on the page to which plaintiff cites indicates 26 that the "gun crew" is "responsible" to "[v]erify that [they] have 27 the proper fuze clip(s) or body clip(s) required for firing 28 operation." Id., exh. 7 thereto at 49. - 14 Reference is then made to

1 the clip chart which, as previously stated, does not include the 2 M374A3 cartridge which plaintiff was using at the time of the 3 accident. Having responsibility for verifying that one has the

4 proper fuze or body clip does not equate to a mandatory duty to 5 "use only fuze clips provided[,]" as plaintiff claims. 6 Whether viewed individually or collectively, the SOPs to which

7 plaintiff refers are not sufficient to establish a mandatory duty 8 on the part of the United States. Nor are they sufficient to

9 defeat the United States showing that it had discretion for 10 mandating weapons procedures. In this case, that discretion took

11 the form of the type of clip (B or C) which could be used on the 12 M374A3 cartridge. The United States cannot be deemed to have

13 violated a mandatory policy because no SOP - plaintiff's only 14 source of this purported duty - requires that a certain type of 15 fuze clip be used with this particular cartridge. In short, none

16 of the SOPs which plaintiff mentions "specifically require [the 17 United States] to act in the ways plaintiff[] identif[ies]." See

18 Jasso v. U.S. Dept. of Agriculture Forest Service, 2008 WL 3863503, 19 at *5 (E.D.Cal. Aug. 18, 2008). Thus, as the Ninth Circuit did in

20 Terbush, the court "agree[s] . . . that absent a mandatory and 21 specific policy dictating otherwise, [it] is left to assume that 22 [the challenged action] [wa]s a discretionary function." 23 Terbush, 516 F.3d at 1133. See

Even without the benefit of that

24 assumption, as explained above, the United States has met its 25 burden of showing that it had an element of choice here. 26 27 B. Public Policy Considerations

The court must next consider whether the United States has met

28 its burden of showing that its conduct was grounded in public policy - 15 -

1 considerations.

The United States first baldly asserts that "[t]he

2 decision at issue here is a technical one that is ill-suited to 3 judicial second-guessing." Mot. (doc. 53) at 10. Additionally,

4 from the United States' standpoint, "the decision to use remote 5 firing, and therefore u[s]e some form of clip or other device to 6 suspend the mortar" was "grounded in safety conditions." 7 (doc. 64) at 9. 8 Relying upon two Ninth Circuit cases which will be discussed Reply

9 momentarily, plaintiff counters that "there was no policy judgment 10 to be made" here because the use of "an unreasonably dangerous fuze 11 clip was a failure to enforce a policy choice already made." 12 (Doc. 60) at 7. Resp.

Therefore, that choice does not fall within the Second, plaintiff claims that the Id.

13 discretionary function exception.

14 United States' conduct was "rooted in technical standards[.]" 15 at 9. Plaintiff thus implies that the technical nature of the

16 challenged decision means that it did not implicate public policy 17 considerations. 18 The United States has the stronger argument here. To be sure,

19 the Ninth Circuit, has "held that a failure to effectuate policy 20 choices already made' will not be protected under the discretionary 21 function exception." Marlys Bear Medicine v. United States, 241

22 F.3d 1208, 1215 (9th Cir. 2001) (citing Camozzi v. Roland/Miller and 23 Hope Consulting Group, 866 F.2d 287, 290 (9th Cir. 1989)). 24 Plaintiff cannot avail himself of this line of cases, however, 25 because they are distinguishable. The Court in Camozzi held that

26 "where the U.S. Postal Service ("USPS") retained safety oversight 27 over a construction project, the failure of the USPS or its 28 representative to require floor coverings was held to be a `failure - 16 -

1 to effectuate policy choices already made,' not the result of a 2 policy decision and therefore subject to FTCA liability." 3 (citing Camozzi, 866 F.2d at 290). Id.

In contrast to Camozzi,

4 plaintiff has not shown that the United States retained safety 5 oversight functions and that that retention was "incorporated in the 6 contracts." See Camozzi, 866 F.2d at 287. For much the same

7 reason, Bear Medicine also is distinguishable in that it involved a 8 contractual requirement that the Bureau of Indian Affairs ensure 9 that logging operations complied with OSHA and other internal 10 regulations. 11 In the present case, there is no evidence that the United

12 States established a specific policy governing the type of fuze 13 clips to be used on a M374A3 cartridge Nor, as in Bear Medicine and

14 Camozzi, was the United States under any contractual obligation with 15 respect to safety oversight. In fact, the contract between the

16 United States and plaintiff's employer, EC III, mandated that EC III 17 personnel, such as plaintiff, "`shall not be placed in a position 18 where they are . . . under the supervision, [or] direction . . . of 19 a Federal Officer, Military or Civilian.'" Mot. (doc. 52) at 3, ¶ 4 Although not

20 (quoting exh. H thereto at H-2, ¶ H.4(b)(1)).

21 determinative of the safety oversight function, this clause 22 seriously undermines any argument that the United States expressly 23 retained that function. 24 Despite what plaintiff Mendivil implies, the Ninth Circuit

25 has not "adopted a blanket rule that all claims regarding the 26 implementation of a chosen course of action are not protected" under 27 the discretionary function exception. 28 F.Supp.2d 732, 765 (N.D.Cal. 2008). - 17 See Cleveland v. U.S., 546

"The cases on which plaintiff[]

1 relies concern government activity involving safety considerations 2 under established policies ­ which is not the case here." 3 Id.

Moreover, "[w]hen established governmental policy, as expressed

4 or implied by . . . agency guidelines, allows a government agent to 5 exercise discretion, it must be presumed that the agent's acts are 6 grounded in policy when exercising that discretion." 7 U.S. at 324, 111 S.Ct. 1267. Gaubert, 499

This presumption alone will not carry The court must also "focus

8 the day for the United States though.

9 . . . `on the nature of the actions taken and on whether they are 10 susceptible to policy analysis.'" Terbush, 516 F.3d at 1133 (quoting 11 Gaubert, 499 U.S. at 325, 111 S.Ct. 1267). As will be seen, the

12 decision to engage in remote firing, which necessarily involves the 13 use of fuze clips, is susceptible to policy analysis. It does not

14 matter whether there is "actual evidence of policy-weighing in any 15 given decision," so long as there is "some support in the record 16 that the decisions are `susceptible' to policy analysis[.]" Id. at 17 1134. The United States has the burden of proof on this issue, See id.

18 which it has met. 19

Plaintiff Mendivil also does not controvert the fact that "out

20 of safety concerns[,]" the United States "had rejected the `man21 firing' technique utilized by the military in favor of the `remote 22 firing' using the fuze clips and lanyards[.]" 23 ¶ 12. Mot. (doc. 53) at 5,

Mr. Bracamonte explained that "manned firing" had "been

24 discussed before in the past[,]" but it is not done because "you are 25 physically putting a person next to the mortar[.]" Mot. (doc. 53), 26 exh. A thereto at 59:18-25. 27 the muzzle. See id. That is avoided by placing the clip on

Plaintiff also did not controvert the United In

28 States' paraphrasing of Mr. Schilders' testimony on that point. - 18 -

1 particular, as the United States indicates, "[h]e testified that the 2 use of fuze clips had their origin with safety concerns going back 3 40 to 60 years when it was thought prudent not to be next to the 4 mortar tube when testing prototype ammunition whose actual 5 characteristics were not known." 6 thereto at 30:25 - 32:1. 7 The decision to use remote firing (and hence fuze clips), as Id. at 5, ¶ 13 (citing exh. B

8 opposed to manned firing, when conducting military weapons tests, is 9 akin to Miller v. United States, 163 F.3d 591, 595-96 (9th Cir. 10 1998), where firefighters need to consider public safety and their 11 own safety in battling forest fire cases, and to Alfrey v. United 12 States, 276 F.3d 557, 565 (9th Cir. 2002), where prison guards must 13 balance prisoner safety with their own safety in searching cells in 14 response to a reported threat. "[U]nite[d]" by "safety

15 considerations[,]" those Courts held that the challenged decisions 16 were susceptible to policy analysis grounded in social, economic or 17 political concerns. See Terbush, 516 F.3d at 1133. Thus, the

18 Miller and Alfrey Courts held that the discretionary function 19 exception to the FTCA barred plaintiffs' claims therein. 20 is true here. The same

The United States' decision is certainly "susceptible

21 to policy analysis" and involves the kind of judgment which the 22 discretionary function was designed to shield. As the United States

23 persuasively stated, "[t]he military cannot be told that they have 24 the discretion to test weapons systems[,] but then that they do 25 [not] have the discretion to determine how to do so." 26 53) at 11:21-22. 27 For all of these reasons, the court finds that the United Mot. (doc.

28 States has met its burden of proving that the discretionary function - 19 -

1 exception, 28 U.S.C. § 2680(a), to the FTCA applies here.

Thus, the

2 court lacks subject matter jurisdiction and grants the United 3 States' motion for summary judgment on that basis. Consequently,

4 there is no need to, and indeed in the absence of subject matter 5 jurisdiction the court cannot, address the parties' remaining 6 arguments. 7 To conclude, IT IS ORDERED that the "Defendant[s'] Motion to

8 Dismiss for Lack of Subject Matter Jurisdiction and for Summary 9 Judgment (doc. 53) is GRANTED. The Clerk of the Court is directed

10 to enter judgment in favor of defendants and to terminate the case. 11 12 13 14 15 16 17 18 19 20 Copies to counsel of record 21 22 23 24 25 26 27 28 - 20 DATED this 31st day of March, 2009.