Hieda et al v. United States of America
Filing
88
ORDER DENYING DEFENDANT UNITED STATES' MOTION TO DISMISS 67 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/23/11. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PAUL H. HIEDA and LAUREN F.
HIEDA,
)
)
)
Plaintiffs,
)
)
vs.
)
)
UNITED STATES OF AMERICA and )
CITY & COUNTY OF HONOLULU,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 09-00161 SOM/BMK
ORDER DENYING DEFENDANT
UNITED STATES’ MOTION TO
DISMISS
ORDER DENYING DEFENDANT UNITED STATES’ MOTION TO DISMISS
I.
INTRODUCTION.
On December 7, 2003, massive rainfall on the island of
Oahu, State of Hawaii, caused mud and debris from the hillside of
Tripler Army Medical Center (“Tripler”) to slide to the
residential neighborhood below.
Plaintiffs Paul H. Hieda and
Lauren F. Hieda (collectively, “the Hiedas”), whose property was
damaged by the flooding, now sue Defendant United States of
America (“the Government”) under the Federal Tort Claims Act
(“FTCA”) for negligence.
The City and County of Honolulu is also
named as a Defendant.
The Government has moved to dismiss the First Amended
Complaint (“FAC”) for lack of subject matter jurisdiction under
the “discretionary function” exception to the FTCA.
Given the
Government’s failure to identify any particular social, economic,
1
or political policy relevant to its actions, or any decision
arising from any of those policies, the court denies the motion
with respect to the Hiedas’ claims that the Government was
negligent in planning for or designing Tripler.
The court
further denies the Government’s motion as to the Hiedas’ claims
based on negligent implementation, construction, repair, or
maintenance of Tripler, because such acts are not discretionary
functions.
II.
BACKGROUND.
The underlying facts surrounding this case are largely
undisputed.
On December 7, 2003, the Hiedas’ home was one of
many damaged when torrential rainfall caused flooding and a
landslide in the Moanalua Valley area of Honolulu, Hawaii.
A
mudslide from Moanalua Ridge, where Tripler is located, into the
valley below damaged the Hiedas’ real and personal property.
The
Hiedas subsequently brought suit against the Government and the
City and County of Honolulu.
The Hiedas allege in the FAC that
the mudslide was the result of the Government’s negligence in
connection with its activities on the property where Tripler is
located:
On or about December 7, 2003, Defendant
USA negligently maintained certain conditions
and negligently engaged in activities on the
hillside above Plaintiffs’ property,
including, without limitation, improvements
that were being made to the grounds of the
Center and the failure to properly design,
landscape, engineer, repair, and/or maintain
2
the improvements, property, and/or drainage
facilities.
FAC ¶ 6, ECF No. 13.
The Government moves to dismiss for lack of subject
matter jurisdiction.
III.
STANDARD.
When the Government moves to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1) of the Federal
Rules of Civil Procedure on the ground that the actions
complained about involve discretionary functions, the court may
consider the challenged pleadings, as well as jurisdictional
facts supplied by affidavit, declaration, or other evidence
properly before the court.
Green v. United States, 630 F.3d
1245, 1248 n.3 (9th Cir. 2011).
The party asserting subject
matter jurisdiction usually bears the burden of establishing
proper jurisdiction.
See Thornhill Publ’g Co., Inc. v. Gen. Tel.
& Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
However, when
the discretionary function exception is invoked, the Government
bears the burden of establishing that the exception applies.
See
Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005);
Bear Medicine v. United States ex rel. Sec’y of the Dep’t of the
Interior, 241 F.3d 1208, 1213 (9th Cir. 2001); Def. United
States’ Mot. to Dismiss at 7, Aug. 31, 2011, ECF No. 67
(“Motion”).
3
IV.
ANALYSIS.
A.
The “Discretionary Function” Exception.
The Government’s sole argument for dismissal of the FAC
is that the discretionary function exception to the FTCA bars the
Hiedas’ claims.
Normally, “[a] party may bring an action against
the United States only to the extent the Government waives its
sovereign immunity.”
(9th Cir. 1995).
Valdez v. United States, 56 F.3d 1177, 1179
The FTCA operates to waive the Government’s
sovereign immunity for claims “arising out of the negligent
conduct of government employees acting within the scope of their
employment.”
Soldano v. United States, 453 F.3d 1140, 1145 (9th
Cir. 2006) (citing Valdez, 56 F.3d at 1179).
Thus, 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) (2011).
However, the FTCA’s waiver of immunity is limited by
the discretionary function exception, which “restores the
government’s immunity in situations where its employees are
carrying out governmental or ‘regulatory’ duties.”
Faber v.
United States, 56 F.3d 1122, 1124 (9th Cir. 1995).
The United
States is not liable for
[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
4
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) (2001).
The purpose of the statutory
exception is 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.
United States v. Gaubert, 499 U.S. 315, 323 (1991).
See
“Where the
exception applies, no federal subject matter jurisdiction
exists.”
In re Glacier Bay, 71 F.3d 1447, 1450 (9th Cir. 1995)
(citing Lesoeur v. United States, 21 F.3d 965, 967 (9th
Cir. 1994)).
The discretionary function exception bars a tort claim
when a two-part test is satisfied.
See Gaubert, 499 U.S. at 322-
25; Berkovitz v. United States, 486 U.S. 531, 536-37 (1988).
stated by the Ninth Circuit,
First, we determine whether the
challenged actions involve “‘an element of
judgment or choice.’” Valdez, 56 F.3d at
1179 (quoting United States v. Gaubert, 499
U.S. 315, 322, 111 S. Ct. 1267, 113 L. Ed. 2d
335 (1991)). Our inquiry looks to the
“nature of the conduct, rather than the
status of the actor,” and the discretionary
element is not met where “a federal statute,
regulation, or policy specifically prescribes
a course of action for an employee to
follow.” Berkovitz, 486 U.S. at 536, 108 S.
Ct. 1954 (internal quotation marks and
citation omitted). In such event, our
inquiry is at an end, and the discretionary
5
As
function exception does not apply because
“the employee has no rightful option but to
adhere to the directive.” Id.
However, if an element of choice or
judgment is involved, we move to the second
step of the analysis and determine “‘whether
that judgment is of the kind that the
discretionary function exception was designed
to shield.’” Gaubert, 499 U.S. at 322-23,
111 S. Ct. 1267 (quoting Berkovitz, 486 U.S.
at 537, 108 S. Ct. 1954). The exception
“protects only governmental actions and
decisions based on considerations of public
policy.’” Id. at 323, 111 S. Ct. 1267
(quoting Berkovitz, 486 U.S. at 537, 108 S.
Ct. 1954). In other words, only those
decisions “grounded in social, economic, and
political policy” will be protected by the
discretionary function exception. Childers
v. United States, 40 F.3d 973, 974 (9th Cir.
1994). The exception “will apply if the
discretionary decision made is a permissible
exercise of policy judgment,” Conrad, 447
F.3d at 765, even if the decision is an abuse
of discretion granted. See U.S.C. § 2680(a).
Soldano, 453 F.3d at 1145.
See Senger v. United States, 103 F.3d
1437, 1444 (9th Cir. 1996).
“[T]he proper level of inquiry must be act by
act. . . . The proper question to ask is not whether the
Government as a whole had discretion at any point, but whether
its allegedly negligent agents did in each instance.
Each
separate action must be examined to determine whether the
specific actor had discretion of a type Congress intended to
shield.”
In re Glacier Bay, 71 F.3d at 1451 (internal citations
omitted).
Accordingly, the court must examine each alleged act
and inquire first whether the conduct involves an element of
6
judgment or choice, and second, whether imposing liability would
give rise to judicial second-guessing of legislative and
administrative decisions grounded in social, economic and
political policy.
The Ninth Circuit recognizes that “the distinction
between protected and unprotected decisions can be difficult to
apprehend, but this is the result of the nature of governmental
actions.”
Soldano, 453 F.3d at 1145.
The Government’s actions
can be said to fall “along a spectrum, ranging from those
‘totally divorced from the sphere of policy analysis,’ such as
driving a car, to those ‘fully grounded in regulatory policy,’
such as the regulation and oversight of a bank.”
See Whisnant,
400 F.3d at 1181 (citing O’Toole v. United States, 295 F.3d 1029,
1035 (9th Cir. 2002)).
1.
Whether There Was An Element Of Judgment Or
Choice.
The first inquiry is whether the Government agency’s or
employee’s actions necessarily involved an element of judgment or
choice.
As this court noted above, if an employee’s action
results from compliance with a mandatory directive, the
Government is shielded from all liability.
324.
Gaubert, 499 U.S. at
If, however, the employee violates the mandatory
regulation, the Government is not shielded from liability because
there is no room for choice and the action will be contrary to
policy.
Id.
In the absence of any statute, regulation, or
7
policy compelling an employee’s actions, those actions involve
judgment or choice.
See Gager v. United States, 149 F.3d 918,
920 (9th Cir. 1998).
2.
Whether The Government’s Acts Were Grounded
In Social, Economic, Or Political Policy.
If an element of judgment or choice is involved, the
court must move to the second step of the analysis and determine
“whether that judgment is of the kind that the discretionary
function exception was designed to shield.”
322-23.
Gaubert, 499 U.S. at
The exception “protects only governmental actions and
decisions based on considerations of public policy.”
Id. at 323.
The policy may be social, economic, or political policy.
Blackburn v. United States, 100 F.3d 1426, 1429 (9th Cir. 1996).
The Government need not show that it made a conscious
decision on the basis of social, economic, or political policy
judgments.
In Kennewick Irrigation District v. United States,
880 F.2d 1018 (9th Cir. 1989), the Ninth Circuit restated its
holding in In re Consolidated U.S. Atmospheric Testing
Litigation, 820 F.2d 982, 998-99 (9th Cir. 1987), rejecting the
appellants’ argument that the discretionary function exception
cannot apply in the absence of a “conscious decision.”
The Ninth
Circuit read the FTCA as providing broader protection against all
claims based on a failure to exercise or perform a discretionary
function.
Kennewick, 880 F.2d at 1026.
In fact, not only does
the discretionary function doctrine not require a challenged
8
decision to be the result of a “conscious decision” to exercise
discretion, the doctrine does not require the decision to “be
actually grounded in policy considerations” at all.
F.3d at 1251.
Green, 630
To qualify under the second prong of the
discretionary function analysis, the action must only be, “by its
nature, susceptible to a policy analysis.”
B.
Id.
Although The Hiedas’ Claims For Negligent Design
And Planning Would Normally Be Barred By The
Discretionary Function Exception, The Government
Has Not Shown That Its Actions Were Susceptible To
Any Policy Analysis.
To the extent the Hiedas’ claims are based on the
Government’s design and planning of Tripler, such actions appear
likely to fall within the discretionary function exception to the
FTCA.
The court cannot, however, say on the present record that
the claims do indeed fall within the exception.
The first part of the two-step discretionary function
test, which examines whether a decision involved judgment or
choice, is not where this court sees a problem.
The Ninth
Circuit has routinely viewed design decisions as involving a
discretionary function and therefore not a permitted basis of a
claim against the Government.
For example, in Kennewick, the plaintiff brought
negligence claims against the Government for injury arising out
of breaks in an irrigation canal designed and constructed by the
Government.
The Government argued that its design and
9
construction of the canal fell within the discretionary function
exception, and the Ninth Circuit agreed as to the design of the
canal.
In considering the first prong, the Ninth Circuit found
no federal statute, regulation, or policy that prescribed a
course of action and thereby divested officials of discretion.
Kennewick, 880 F.2d at 1027.
The court stated that something
more than a general safety policy was required in this regard:
Berkovitz thus establishes that a safety
or engineering standard operates to remove
discretion under the FTCA when it is embodied
in a specific and mandatory regulation or
statute which creates clear duties incumbent
upon the governmental actors. A general
statutory duty to promote safety, as was
incumbent upon the FAA in Varig, would not be
sufficient. . . . [D]iscretion may be removed
by a specific mandatory governmental policy
duly adopted under authority delegated by
statute or regulation. Finally, in this
circuit we have held that discretion may be
removed if the government incorporates
specific safety standards in a contract which
imposes duties on the government’s agent.
Id. at 1026 (emphasis in original) (internal citations omitted).
The Hiedas allege that the Government “negligently
maintained certain conditions and negligently engaged in
activities on the hillside above Plaintiffs’ property, including,
without limitation, improvements that were being made to the
grounds of the Center and the failure to properly design,
landscape, engineer, repair, and/or maintain the improvements,
10
property, and/or drainage facilities.”
FAC ¶ 6, ECF No. 13.1
Insofar as the Hiedas allege negligence in designing, planning,
or engineering Tripler and the surrounding areas, this court has
no difficulty concluding that, as no statute, regulation, or
policy divesting the Government of discretion has been identified
for the court, the actions complained about with respect to
planning and design must have involved a judgment or choice.
See
Gager, 149 F.3d at 920.
The court therefore turns to the second prong of the
two-step discretionary function test: were decisions related to
the design and planning of Tripler and its improvements grounded
in a social, economic, or political policy or susceptible of a
policy analysis?
In Kennewick, the Ninth Circuit viewed the
decision not to line irrigation canals as involving not only
engineering analysis, but also judgment in the form of the
balancing of many technical, economic, and even social
considerations.
Kennewick, 880 F.2d at 1029.
Similarly, in
United States v. Ure, 225 F.2d 709 (9th
Cir. 1955), the Ninth Circuit stated that decisions regarding the
1
The Government characterizes the Hiedas’ claim as
alleging only that “the United States should have designed and
built the TAMC drainage system in anticipation of their home
being built decades after the completion of TAMC and that the
drainage system should have been designed for 50 or 100 year
storms[.]” Motion at 10, ECF No. 67. Although there is a design
element to the Hiedas’ claim, the Hiedas also allege negligence
relating to other acts.
11
design of an irrigation canal involved the protected exercise of
a discretionary function.
Ure, 225 F.2d at 712.
The decision in
Ure “rested upon practical considerations, including the vital
item of cost.”
Id.
Valley Cattle Company v. United States, 258 F. Supp. 12
(D. Haw. 1966), is also instructive here.
Valley Cattle Company
involved heavy rainfall that caused flooding from Bellows Field
on Oahu.
The plaintiff’s calves died in the flood.
The
Government argued in that case that it was not subject to
liability under the FTCA, because its decision to design the
culverts at Bellows Field for a two-year storm fell within the
discretionary function exception.
The court agreed with the
Government that “[e]ven if storms of greater magnitude than 2year storms were foreseeable by the U.S. Engineers, their
decision to construct the Bellows Field culvert on a 2-year
design storm frequency was clearly a discretionary act at the
planning level and no liability can here fall upon the Government
for injuries claimed to have resulted from the decision.”
Id. at
19-20.
The Hiedas argue that their claims are distinguishable
from the claims made in the above-cited cases.
The Hiedas point
out that they are not suing over decisions regarding the location
of Tripler, the expansion of Tripler’s facilities, or the
implementation of storm criteria.
12
See Pls.’ Mem. in Opp. to Def.
United States of America’s Mot. to Dismiss at 17-19, Nov. 22,
2011, ECF No. 76 (“Opposition”).
Rather, they say, they are
suing over the failure of the Government to “provide for the safe
disposal of runoff exceeding the design storm criterion[.]”
at 20.
Id.
To the extent the Hiedas allege negligence against the
Government for its “failure to properly design, . . . [or]
engineer . . . the improvements, property, and/or drainage
facilities[,]” their claims appear analogous to those that were
dismissed in Kennewick and Ure.
For example, the Hiedas say,
clarifying their FAC:
Plaintiffs fault the federal government for a
drainage system in December 2003 that did not
provide for the safe disposal of runoff
exceeding the design storm criterion that the
government argues was applicable. Plaintiffs
assert that the deficient drainage system in
place in 2003 did not result from the
exercise of judgment regarding public policy.
Instead, the deficient drainage system arose
from common negligence. Despite having
assumed the responsibility to assess and
correct any deficiencies in the drainage
system atop Moanalua Ridge, the Government
did not install berms, inlets, and/or curbs
along Jarret White Road to retard or prevent
excess surface water from flowing off of
Jarrett White Road and onto the slopes above
Hakuaina Road, and energy dissipation devices
on the outlets for any excess surface water
from the parking lot area.
Opposition at 20, ECF No. 76.
The Government’s decision not to adopt a particular
safety measure may well be the very kind of decision that courts
have not been allowed to second-guess.
13
See Valdez, 56 F.3d at
1178 (decision not to post signs warning of dangers is within
discretionary function exception); Childers, 40 F.3d at 976
(decision to use brochures, rather than signs, as warnings is
within discretionary function exception); ARA Leisure Servs. v.
United States, 831 F.2d 193, 195 (9th Cir. 1987) (decision to
design road without guardrails is within discretionary function
exception).
Even if the Government’s decision to implement a
“deficient drain system arose from common negligence,” as the
Hiedas allege, if the decision was grounded in a policy choice,
that sort of negligence would not give rise to a viable claim.
“[N]egligence is simply irrelevant to the discretionary function
inquiry.
Indeed, if the presence of negligence were allowed to
defeat the discretionary function exception, the exception would
provide a meager shield indeed against tort liability.”
Kennewick, 880 F.2d at 1028 (internal citations omitted).
This court shares the Government’s concern about
whether at least the Hiedas’ planning and design claims implicate
discretionary governmental functions.
However, this court feels
constrained from granting the present motion.
The Government
does not identify any social, economic, or political policy
relevant to the design and planning of Tripler.
The court cannot
help but conclude that this failure renders the present motion
deficient.
The Government “bears the ultimate burden of proving
the applicability of the discretionary function exception.”
14
Valdez, 56 F.3d at 1179.
The discretionary function exception is
implicated “where circumstances clearly showed” that decisions
were “the result of a judgment grounded in social, economic and
political policy.”
Soldano, 453 F.3d at 1146.
The Ninth Circuit provides a particularly clear
articulation of the Government’s burden on the policy issue in
Prescott v. United States, 973 F.2d 696 (9th Cir. 1992).
Prescott concerned governmental actions relating to a nuclear
test site.
The Ninth Circuit quoted, without disagreeing with,
the district court’s statement that "[i]t is undisputed that
'nuclear tests themselves and all decisions and planning made in
preparation and carrying out of the tests and in the evaluation
of the test results are clearly within the discretionary function
exception and thus immune from suit.’”
Id. at 702 (quoting
Prescott v. United States, 724 F. Supp. 792, 798-99 (D. Nev.
1989)).
Both the district court and the Ninth Circuit
nevertheless concluded that the Government was not entitled to
summary judgment on the discretionary function issue.
The plaintiffs in Prescott claimed to have suffered
radiation injuries resulting from their work at the United States
Nevada Test Site.
They attributed their injuries to the
Government’s failure to establish and monitor radiation levels
and exposure, to advise workers and individuals about radiation
effects, to provide protection from or to minimize radiation
15
effects, to adjust practices after learning of radiation dangers,
to take precautions with respect to radiation exposure during
tests, to properly train and supervise employees and agents about
radiation, and to advise workers to have medical check-ups to
diagnose cancers promptly.
The Ninth Circuit, noting that it had
never extended blanket immunity to all nuclear-related
activities, held that the Government had failed to meet its
burden of showing that its actions were grounded in policy.
The Ninth Circuit stated:
In its motion to the district court, the
government did not come forth with evidence
to prove that the alleged acts of negligence
by test site officials “involve[d] an element
of judgment.” Nor did the government put
forth evidence that the judgment (if any) was
grounded in social, economic, or political
policy. Instead, having shown that these
actions were carried out in the course of the
nuclear testing operations, the government
relied exclusively on Atmospheric Testing,
which it read as providing a blanket immunity
to all government operations related to
nuclear testing. Implicit in the
government's summary reliance on Atmospheric
Testing is the view, in the context of
nuclear testing, that the government need not
prove that particular acts and omissions
resulted from choices grounded in social,
economic and political policy because
Atmospheric Testing has brought all such acts
and omissions within the purview of the
exception. In essence, then, the government
interprets Atmospheric Testing as holding
that a complaint based on a government
employee's negligence in carrying out a
nuclear test necessarily constitutes a
pleading outside the FTCA's waiver of general
immunity. We have already rejected this
expansive reading of Atmospheric Testing.
16
In sum, we affirm the district court's
order denying summary judgment because the
government failed to adduce any evidence that
the specific acts of negligence flowed
directly from the policy choices of on-site
officials who had been explicitly entrusted
with the responsibility of weighing competing
policy considerations.
Id. at 703 (internal citations omitted).
Importantly, the court also noted:
The government, of course, need not
necessarily prove that a government employee
actually balanced economic, social, and
political concerns in reaching his or her
decision. Kennewick, 880 F.2d at 1028
Nevertheless, the government must, at a
minimum, prove that the challenged decision
was susceptible to such balancing or that the
government employee was entrusted with the
responsibility of conducting such balancing.
Berkovitz, 486 U.S. at 536; [Ariz. Maint. Co.
v. United States, 864 F.2d 1497, 1501 (9th
Cir. 1989)]; [Roberts v. United States, 887
F.2d 899, 901-02 (9th Cir. 1989)].
Id. at 703 n.5.
Even when the Ninth Circuit has concluded that the
Government’s actions were shielded by the discretionary function
doctrine, it has relied on substantial information in the record
establishing policies relevant to the Government’s decisions.
See, e.g., Soldano, 453 F.3d at 1147-48 (discussing evidence of
policy to minimally intrude on the natural or historic setting of
a national park in placing signs along roads, policy to avoid
unnecessary proliferation of signs, and policy of ensuring
visitor safety); Kennewick, 880 F.2d at 1025 (discussing economic
17
policies implicated in canal design decisions); Ure, 225 F.2d at
712-13 (holding "that the decision not to line the canal
throughout rested upon practical considerations, including the
vital item of cost").
In the present case, the Government, implicitly relying
on the assumption that "blanket immunity" is automatically
conferred upon all decisions related to design and planning,
fails to make any record at all relating to any social, economic,
or political policy forming the basis of its actions.
This was
the same error the Ninth Circuit said the Government made in
Prescott, the radiation case.
The Government’s motion to dismiss does not include any
discussion of competing policy interests or explain how the
design of Tripler or its drainage system was based on
policymaking discretion that Congress intended to shield from
judicial second-guessing.
The Government takes great pains to
point to the Hiedas’ expert’s opinion that the Government’s
alleged negligence is based on decisions falling within the
discretionary function exception, but the Government does not
show either that the Government exercised discretion in
furtherance of an identified policy or that the Government’s
decisions are “susceptible to a policy analysis.”
F.3d at 1251.
See Green, 630
The Hiedas’ expert’s opinion that the Government
should have designed Tripler’s drainage facilities above the
18
standard ten-year-storm criteria establishes that the Government
had more than one standard to choose from, but that element of
choice goes only to the first prong of the discretionary function
analysis.
The second prong, which concerns social, economic, or
political policies, is not addressed by the mere existence of a
choice.
The Hiedas are therefore correct in stating that “the
Government utterly fails to identify the applicable federal
public policy at issue.”
Opposition at 22-23, ECF No. 76.
Even at the hearing on this issue, the Government, when
pressed by the court, was unable to articulate any social,
economic, or political policy underlying the Government’s
allegedly protected decisions.
See Gaubert, 499 U.S. at 323;
Blackburn, 100 F.3d at 1429.
The burden is on the Government to prove that its
decisions were, at the very least, susceptible to the balancing
of policy considerations.
Having failed to articulate any
relevant policy, the Government does not meet this burden.
Accordingly, the court cannot at this time dismiss the Hiedas’
claims for negligent design or planning based on the
discretionary function exception.
C.
The Hiedas’ Claims Against The Government For
Negligent Construction, Maintenance, And Repair
Are Not Barred By The Discretionary Function
Exception.
To the extent the Hiedas allege negligent construction,
maintenance, and other forms of “garden variety” negligence, such
19
claims do not fall within the discretionary function exception of
the FTCA.
In Whisnant, the Ninth Circuit held that the
discretionary function exception did not apply to the
Government’s implementation of its safety procedures.
400 F.3d at 1181-82.
Whisnant,
See In re Glacier Bay, 71 F.3d at 1453
(“[a]n element of judgment is involved here [in construction
decisions], but the decision nevertheless falls outside the types
of public policy decisions intended to be shielded by the
discretionary function exception.”).
Similarly, in Soldano, the Ninth Circuit expounded on
the difference between negligence in making public policy
decisions and in implementing safety measures:
In particular, we have declined to find the
discretionary function exception applicable
“where the challenged governmental activity
involves safety considerations under an
established policy rather than the balancing
of competing public policy considerations.”
ARA Leisure Servs. v. United States, 831
F.2d 193, 195 (9th Cir. 1987). In ARA
Leisure Services, the Park Service’s decision
to design the Denali Park Road in Alaska
without guardrails was grounded in economic
and political policy, but the Park Service’s
failure to maintain a pass on that road in
safe condition was not. There was “no clear
link between Park Service road policies and
the condition” of the pass, so the
government’s failure to maintain the road
“fell in the category of ‘ordinary “gardenvariety” negligence’” that the FTCA did not
immunize from suit. Id. at 195-96 (quoting
Aslakson v. United States, 790 F.2d 688, 69394 (8th Cir. 1986)).
20
Soldano, 453 F.3d at 1146.
See Whisnant, 400 F.3d at 1183 (suit
is not barred when plaintiff alleges that the Government was
negligent in following through on safety procedures); Bear
Medicine, 241 F.3d at 1215 (“The decision to adopt safety
precautions may be based in policy considerations, but the
implementation of those precautions is not.”).
In Kennewick, while holding that the Government was
shielded from liability for any negligence in connection with
design decisions, the Ninth Circuit allowed the suit to proceed
as to alleged negligence in the construction of the canal.
It
first noted that the Government had discretion in constructing
the canal, because under the terms of the construction contract,
“the contracting officer was vested with discretion to determine
when unsuitable material was present, and any duty to remove it
was contingent upon a determination that such material was indeed
present.”
Kennewick, 880 F.2d at 1031.
See United States v.
S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467
U.S. 797, 820 (1984) (FAA inspectors who conducted compliance
reviews of particular aircraft were exercising discretion).
But
the discretion exercised in the building of the canal was not the
type protected by the discretionary function exception: “the
contracting officer’s discretion in deciding whether to remove
unsuitable materials during construction was based not on policy
judgments but on technical, scientific, engineering
21
considerations.”
Kennewick, 880 F.2d at 1031.
“The contracting
officer’s on-site decisions were not based on public policy and
they are not entitled to immunity from lawsuit based on
negligence under the discretionary function exception.
The
contracting officer had no ‘room for policy judgment and
decision.’”
Id. at 1031 (emphasis in original).
Besides alleging negligent design, the Hiedas are
alleging negligence in constructing, maintaining, and repairing
Tripler and its improvements.
See FAC ¶ 6, ECF No. 13.
These
acts are not by their nature grounded in public policy.
Negligent acts not grounded in any social, economic, or political
policy are not prohibited by the discretionary function doctrine.
The Government urges the court to apply the reasoning
in Valley Cattle Company and to bar the Hiedas’ suit.
However,
that case merely stands for the proposition that the “decision to
construct the Bellows Field culvert on a 2-year design storm
frequency was clearly a discretionary act at the planning
level[.]”
Valley Cattle Co., 258 F. Supp. at 19-20.
The
district court was not considering maintenance or repair.
Instead, it was examining decisions to design based on a two-year
storm frequency.
This kind of decision falls under the
discretionary function exception if linked to a social, economic,
or political policy.
Valley Cattle Company does not say that
negligent implementation of plans and policies is similarly
22
protected.
V.
CONCLUSION.
As the Government has not met its burden of
establishing that the discretionary function exception applies to
the Hiedas’ claims, the Government’s motion to dismiss is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii,
December 23, 2011 .
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Paul H. Hieda et al. v. United States of America et al., Civil No. 09-00161
SOM/BMK; Order Denying Defendant United States’ Motion to Dismiss.
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