ROWE v. UNITED STATES OF AMERICA
Filing
31
ORDER granting 13 Motion to Dismiss for Lack of Jurisdiction; finding as moot 14 Motion to Exclude Plaintiff's Expert Witness. Ordered by US DISTRICT JUDGE CLAY D LAND on 07/22/2016. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JUDY ROWE,
*
Plaintiff,
*
vs.
*
UNITED STATES OF AMERICA,
*
Defendant.
CASE NO. 4:15-CV-51 (CDL)
*
O R D E R
Plaintiff Judy Rowe owns a house in Midland, Georgia near
Fort Benning, Georgia.
Rowe claims that the United States Army
built firing ranges too close to her house and that her house
was damaged as a result of vibrations caused by construction of
the ranges.
Rowe brought suit under the Federal Tort Claims
Act, 28 U.S.C. § 1346(b).
The United States argues that Rowe’s
claims should be dismissed under the discretionary exception to
the Federal Tort Claims Act.
For the reasons set forth below,
the Court agrees and therefore grants the Government’s Motion to
Dismiss (ECF No. 13).
The Government’s motion to exclude the
opinion of Rowe’s expert witness (ECF No. 14) is moot.
DISCUSSION
The crux of Rowe’s claim is that the United States was
negligent
in
the
construction
of
the
firing
ranges
“by
conducting said activities in such close the [sic] proximity to
her home.”
Rowe
does
Pl.’s Resp. to Def.’s Mot. to Dismiss 1, ECF No. 25.
not
dispute
that
her
“sole
contention
as
to
the
wrongful conduct of the United States is that the small arms
ranges were built too close to her property.”
Def.’s Mot. to
Dismiss Ex. 1, Statement of Material Facts ¶ 1, ECF No. 13-1;
Pl.’s Resp. to Def.’s Mot. to Dismiss 1-2, 4 (adopting “all
attachments, enclosures, and exhibits to the Defendant’s motion”
and arguing that the Government acted negligently by conducting
its land clearing and construction activities “in such close the
[sic] proximity to her home” and that a genuine fact dispute
exists on whether “Plaintiff has proved a duty owed and breach
thereof with respect to the placement of the small arms firing
ranges”);
Rowe Dep.
139:13-20, ECF No. 19 (stating that the
Government should have moved “the ranges back to another area”);
id. at 143:8-144:1 (noting that if the Government “wouldn’t have
built
so
detonate”
close
to”
unexploded
her
house,
ordnance
Korean and Vietnam Wars).
“they
left
wouldn’t
from
have
training
had
during
to
the
In other words, Rowe does not claim
that the Government breached any duty to her except by choosing
to locate the firing ranges close to her house.
“It is well settled that the United States, as a sovereign
entity, is immune from suit unless it consents to be sued.”
Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015).
Through the Federal Tort Claims Act, the United States “waived
2
its immunity from tort suits based on state law tort claims.”
Id.
But the Federal Tort Claims Act is a limited waiver; “that
which
the
Sovereign
gives,
it
may
also
take
away,
and
the
Government has done so through statutory exceptions in 28 U.S.C.
§
2680,
including
exception.”
the
Id. at 1322.
§
2680(a)
discretionary
function
That exception “serve[s] to block the
waiver of sovereign immunity that would otherwise occur under
the” Act.
The
Id.
discretionary
function
exception
provides
that
the
Federal Tort Claims act 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).
exception,
“Congress
In enacting the discretionary function
wished
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.”
797,
814
(1984).
United States v. Varig Airlines, 467 U.S.
“In
short,
the
discretionary
function
exception serves to preserve sovereign immunity for any claim
that is based on a federal agency or employee’s performance or
nonperformance of a discretionary task, even if, in so acting,
3
the agency employee may have abused his discretion.”
Zelaya,
781 F.3d at 1329.
The courts use a two-part test to determine whether the
discretionary function exception applies.
“First, the conduct
that forms the basis of the suit must involve an element of
judgment or choice by the employee.”
Id.
Second, the judgment
must be “of the kind that the discretionary function exception
was
designed
to
shield.”
Id.
(quoting
Berkovitz
ex
rel.
Berkovitz v. United States, 486 U.S. 531, 536 (1988)).
For the first question, “[t]he relevant inquiry is whether
the controlling statute or regulation mandates that a government
agent perform his or her function in a specific manner.”
Fagg
v. United States, No. 15-14091, 2016 WL 2851132, at *2 (11th
Cir.
May
16,
2016)
(per
curiam)
(alteration
in
original)
(quoting Hughes v. United States, 110 F.3d 765, 768 (11th Cir.
1997) (per curiam)).
“[U]nless a ‘federal statute, regulation,
or policy specifically prescribes a course of action embodying a
fixed or readily ascertainable standard,’ it will be presumed
that
the
choice.”
particular
act
involved
an
element
of
judgment
or
Zeyala, 781 F.3d at 1330 (quoting Autery v. United
States, 992 F.2d 1523, 1529 (11th Cir. 1993)).
Here, Rowe did not point to any statute, regulation, or
policy that specifically prescribes where the Army must locate
firing ranges on its military bases.
4
Rowe also did not point to
any statute, regulation, or policy that sets limits on where the
Army may locate firing ranges on its military bases.
Rowe does
not dispute that the firing ranges were built at Fort Benning as
part of the Department of Defense’s base closure and realignment
initiative.
As the Government points out, in selecting a site
for the firing ranges as part of that initiative, the Army had
to follow the process set forth in the National Environmental
Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321, et seq., which
requires
federal
agencies
to
evaluate
the
environmental
consequences of their actions before proceeding with a major
project.
“NEPA
is
procedural,
setting
limits on agency decision-making.”
agency
follow
this
particular result.”
no
substantive
Sierra Club v. Van Antwerp,
526 F.3d 1353, 1361 (11th Cir. 2008).
an
forth
procedure;
Id. at 1360.
“NEPA only requires that
it
does
not
mandate
any
“NEPA’s procedural mandates
require agencies to inform their discretion in decisionmaking.”
In re Katrina Canal Breaches Litig., 696 F.3d 436, 450 (5th Cir.
2012).
“An
influences
agency
(the
that
public,
complies
with
lawmakers,
NEPA
other
gives
outside
agencies)
more
information with which to put pressure on that agency, but the
original
agency
regardless.”
Rowe
retains
substantive
decisionmaking
power
Id.
does
not
dispute
that
the
Army
followed
the
NEPA
process in determining where to locate the ranges; in fact, she
5
submitted comments during the public comment period.
And Rowe
did not point to any other statute, regulation, or policy that
contains requirements on the specific placement of firing ranges
on military bases.
In sum, the decision of where to locate
firing ranges on a military base is not mandated by any statute
or regulation, and the Court is satisfied that the Government’s
decision
of
where
to
locate
the
element of judgment or choice.”
firing
ranges
“involved
an
Zeyala, 781 F.3d at 1330.
The next question is whether the Government’s decision of
where to locate firing ranges on a military base is the type of
decision “that the discretionary function exception was designed
to shield.”
particular
Id. (quoting Berkovitz, 486 U.S. at 536).
decision
will
be
of
the
kind
protected
by
“A
the
exception if it is the type of decision that one would expect to
be inherently grounded in considerations of policy.”
Id.; see
also Fagg, 2016 WL 2851132, at *3 (finding that postal service’s
resource
allocation
function exception).
decisions
fell
within
the
discretionary
“[W]hen a government agent is permitted to
exercise discretion in making a particular decision—whether that
permission is express or implied—‘it must be presumed that the
agent’s
acts
are
grounded
in
policy
when
exercising
that
discretion.’” Zelaya, 781 F.3d at 1330 (quoting United States v.
Gaubert, 499 U.S. 315, 324 (1991)).
6
Again, Rowe did not point to any statute, regulation, or
policy setting limits on where the Army may locate firing ranges
on
its
military
bases.
The
Court
thus
concludes
that
the
Government had discretion over where to build firing ranges on
Fort Benning.
to
build
a
The Court is satisfied that the decision of where
firing
range
on
a
military
base
is
grounded
in
considerations of policy because such a decision involves many
factors, including safety, available space on the base, the type
of terrain needed for the firing ranges, the location of other
facilities on the base, and environmental impact.
See Abreu v.
United States, 468 F.3d 20, 26, 33 (1st Cir. 2006) (finding that
military training activities at a Navy facility fell within the
discretionary
function
exception);
cf.
OSI,
States, 285 F.3d 947, 953 (11th Cir. 2002)
Inc.
v.
United
(concluding that
decisions regarding the manner of waste disposal on a military
base
“reflect
the
kind
of
judgment
that
the
discretionary
function exception is designed to shield”); Chaffin v. United
States, 176 F.3d 1208, 1211 (9th Cir. 1999) (finding that the
Air Force’s design for living quarters, which tragically turned
out to be vulnerable to polar bear attacks, fell within the
discretionary function exception).
For these reasons, the Court finds that the second prong of
the
discretionary
function
test
is
met.
function exception thus applies in this case.
7
The
discretionary
CONCLUSION
As discussed above, the Court finds that the discretionary
function exception to the Federal Tort Claims Act applies here
and that the United States has not waived its sovereign immunity
as to Rowe’s claims.
Accordingly, the Army’s Motion to Dismiss
(ECF No. 13) is granted.
IT IS SO ORDERED, this 22nd day of July, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
8
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