Gibson v. United States of America
Filing
54
RULING granting 27 the Motion for Summary Judgment by Defendants, United States of America and the Federal Emergency Management Agency (FEMA), isGRANTED. The Court lacks subject matter jurisdiction over this case based on thediscretionary function exception to the Federal Tort Claims Act. Plaintiffs case is dismissed with prejudice. The Final Pre-Trial Conference set for 9/9/2014 is hereby CANCELLED. The Bench Trial set for 9/22/2014, is also CANCELLED. All other pending motions are denied as moot. Signed by Judge Shelly D. Dick on 9/3/2014. (SMG)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WILLIAM GIBSON, ET UX.
CIVIL ACTION
VERSUS
NO. 12-686-SDD-RLB
UNITED STATES OF AMERICA,
ET AL.
RULING
This matter is before the Court on the Motion for Summary Judgment1 filed by the
Defendants, United States of America and the Federal Emergency Management Agency
(FEMA) (collectively “Defendant” or “Government”).
Plaintiffs, William Gibson (“Mr.
Gibson”) and his wife Rita Gibson (“Mrs. Gibson) (or collectively “Plaintiffs”) have filed an
Opposition2 to the motion and a Cross Motion for Partial Summary Judgment3 to which the
Government filed a consolidated Opposition and Reply.4 Each party also filed Reply briefs.5
For the reasons which follow, the Court finds that the discretionary function exception bars
this suit and the Court lacks subject matter jurisdiction over this case.
Thus, the
Government’s motion should be granted, and Plaintiffs’ motion should be denied.
I.
FACTUAL BACKGROUND
1
Rec. Doc. No. 27.
2
Rec. Doc. No. 31.
3
Rec. Doc. No. 32.
4
Rec. Doc. No. 34. The Plaintiff likewise filed a Reply. Rec. Doc. No. 36.
5
Rec. Doc. Nos. 31 & 34.
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Mr. Gibson and his brother own Gibson Brothers, a business that subcontracted with
FEMA to activate6 trailers for use by victims of Hurricanes Katrina and Rita and then deactivate7 the trailers once the occupants moved out. Following deactivation, Gibson
Brothers would haul the trailers to various FEMA sites in Louisiana, Mississippi, and Texas,
according to the orders of the various FEMA contractors. The Government contends that
carrying out these duties obviously required Mr. Gibson to frequently enter and exit FEMA
trailers. Mr. Gibson testified that when he entered a trailer without a climbing device, he
would back up to the trailer’s doorway and “hop” up to a seated position in the doorway
facing outwards. While in this position, Mr. Gibson would turn his body into the trailer and
stand. To exit such a trailer, Mr. Gibson would simply reverse this maneuver by sitting in
the front doorway with his legs hanging outside and hop off onto the ground below.8 During
the five years that Mr. Gibson worked under this FEMA subcontract, he estimated that
entered and exited more than one hundred FEMA trailers.9
On November 1, 2010, approximately one month after Gibson Brothers’ subcontract
with FEMA had expired, Mr. Gibson visited the premises of a FEMA facility located on
Sherwood Forest Boulevard in Baton Rouge, Louisiana. This lot contains many formerlyoccupied FEMA trailers distributed by FEMA after Hurricanes Katrina and Rita. The
6
Mr. Gibson testified that “activation” of FEMA trailers consisted primarily of hauling trailers to a designated
site; blocking and leveling the trailer; constructing and attaching wooden steps and/or ramps to the trailer for
ingress and egress purposes; running the sewer line; and connecting electrical power to the trailer. See Rec.
Doc. No. 25-3, p. 4 (Deposition 1 of William R. Gibson, p. 30).
7
Mr. Gibson testified that “deactivation” of FEMA trailers required Gibson Brothers to clean the inside of the
trailer and remove the trailer and trailer materials to a designated FEMA storing area. See Rec. Doc. No. 323, p. 2 (Deposition 1 of William R. Gibson, p. 16).
8
Rec. Doc. No. 27-1, p. 3, citing Deposition 1 of William R. Gibson, pp. 70-75.
9
Rec. Doc. No. 27-2, p. 4 (Deposition 1 of William R. Gibson, p. 30).
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purpose of this visit was for Mr. Gibson to inspect a particular mobile home10 owned by
FEMA that was going to be available for an upcoming on-line public auction.
While at this facility, Mr. Gibson claims he was supervised and accompanied by
FEMA employee Joan Johnson (“Johnson”), who was charged with assisting potential
customers around the facility as they evaluated the trailers available for purchase. Mr.
Gibson inspected four or five trailers on this date that had only an open door several feet
above the ground with no set of pull-out steps for access. Mr. Gibson further claims that,
despite being a man of nearly 400 pounds, Johnson retrieved an aluminum stepladder from
her vehicle for Gibson to use when entering and exiting these trailers.11
Next, Mr. Gibson claims that, upon completing his inspection of the last trailer/mobile
home, he attempted to exit by descending the ladder. Mr. Gibson contends that he tried
to get Johnson’s attention so she could come hold the ladder for him, but she was some
distance away on her cell phone. Mr. Gibson alleges that he held on to the door frame of
the trailer12 and attempted to step down the ladder placing his left foot onto the ladder rung
two or three rungs down from the top. He was able to place his right foot securely on the
ladder as well, but as he attempted to step down with his left foot, Mr. Gibson fell to the
ground landing on his back.13 Mr. Gibson claims that, as a result of this fall, he has
10
Mr. Gibson contends there is a distinction between a trailer and a mobile home in that trailers are equipped
with a set of pull-up steps, and mobile homes are not. Rec. Doc. No. 31, p. 2.
11
According to Johnson, she first provided Mr. Gibson with a two-step plastic stool to enter and exit the
trailers, but Mr. Gibson requested the ladder after using this stool a few times. Rec. Doc. No. 27-4, pp. 8-9
(Deposition of Joan Johnson, pp. 29-30).
12
Although Mr. Gibson contends he does not use the terms “trailer” and “mobile home” interchangeably, he
does so in this memorandum. Rec. Doc. No. 31, p. 2.
13
Rec. Doc. No. 31-2, p. 20 (Deposition 1 of William R. Gibson, p. 111, lines 1-15).
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suffered ongoing severe and debilitating injuries. Mr. and Mrs. Gibson have filed suit
against the United States to recover monetary damages under the Federal Tort Claims Act
(“FTCA”).14
Johnson’s account of this incident differs somewhat from Mr. Gibson’s. Johnson
testified that Mr. Gibson used a two-step stool to gain access to the first few trailers he
inspected, and then he asked for the ladder after seeing it in her vehicle.15 As to the last
trailer, Johnson claims she did not place the ladder in front of the trailer, or ever hold or
touch the ladder for this particular trailer. In fact, Johnson stated that she did not assist Mr.
Gibson with any trailer that he inspected on this date.16 Johnson further testified that she
observed Mr. Gibson grab both sides of the doorway to balance himself as he stepped out
onto the ladder, but, rather than descending the ladder backwards, Mr. Gibson descended
facing forward with his body turned away from the ladder.17 Johnson witnessed Mr. Gibson
fall and testified that she instinctively reached out her hands to help break his fall; however,
Johnson pulled back realizing she could get hurt by trying to break the fall of a man Mr.
Gibson’s size.18
Johnson contends that, as he lay on the ground, Mr. Gibson yelled out that he thought his
leg was broken. According to Johnson, she immediately called for assistance, and several
14
28 U.S.C. § 2671, et seq.
15
Rec. Doc. No. 27-4, pp. 8-9 (Deposition of Joan Johnson, pp. 29-30).
16
Id. at p. 16 (Deposition of Joan Johnson, p. 85).
17
Id. at pp. 17-18 (Deposition of Joan Johnson, pp. 44-45).
18
Id. at p. 23 (Deposition of Joan Johnson, p. 40).
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FEMA employees arrived to help and assist in transferring Mr. Gibson into an ambulance.19
The Government has moved for summary judgment arguing that the discretionary
function exception to the FTCA applies to the conduct alleged in this case such that this
Court lacks subject matter jurisdiction over this lawsuit.
II.
LAW AND ANALYSIS
A.
Summary Judgment Standard
Summary judgment should be granted if the record, taken as a whole, "together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."20 The Supreme Court has
interpreted the plain language of Rule 56(c) to mandate "the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial."21 A party moving for
summary judgment "must 'demonstrate the absence of a genuine issue of material fact,'
but need not negate the elements of the nonmovant's case."22 If the moving party "fails to
meet this initial burden, the motion must be denied, regardless of the nonmovant's
19
Id. at p. 20 (Deposition of Joan Johnson, p. 51).
20
Fed. R. Civ. P. 56(c); New York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996); Rogers
v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir. 1996).
21
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). See also
Gunaca v. Texas, 65 F.3d 467, 469 (5th Cir. 1995).
22
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 U.S. at 323-25,
106 S.Ct. at 2552).
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response."23
If the moving party meets this burden, Rule 56(c) requires the nonmovant to go
beyond the pleadings and show by affidavits, depositions, answers to interrogatories,
admissions on file, or other admissible evidence that specific facts exist over which there
is a genuine issue for trial.24 The nonmovant's burden may not be satisfied by conclusory
allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a scintilla
of evidence.25 Factual controversies are to be resolved in favor of the nonmovant, "but only
when there is an actual controversy, that is, when both parties have submitted evidence
of contradictory facts."26 The Court will not, "in the absence of any proof, assume that the
nonmoving party could or would prove the necessary facts."27 Unless there is sufficient
evidence for a jury to return a verdict in the nonmovant's favor, there is no genuine issue
for trial.28
B.
Discretionary Function Exception
As the sovereign, the United States is immune from suit, except to the extent that
23
Id. at 1075.
24
Wallace v. Texas Tech Univ., 80 F.3d 1042, 1046-47 (5th Cir. 1996).
25
Little, 37 F.3d at 1075; Wallace, 80 F.3d at 1047.
26
Wallace, 80 F.3d at 1048 (quoting Little, 37 F.3d at 1075). See also S.W.S. Erectors, Inc. v. Infax, Inc., 72
F.3d 489, 494 (5th Cir. 1996).
27
McCallum Highlands v. Washington Capital Dus, Inc., 66 F.3d 89, 92 (5th Cir. 1995), as revised on denial
of rehearing, 70 F.3d 26 (5th Cir. 1995).
28
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
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it has waived its immunity and has consented to be sued.29 The FTCA acts as a limited
waiver of sovereign immunity allowing the United States to be sued for “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.”30 Courts strictly construe
waivers of sovereign immunity and resolve all ambiguities in favor of the sovereign.31
Under the discretionary function exception, the waiver of immunity does not apply to any
claim “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.”32 Plaintiffs have the
burden of proving subject matter jurisdiction by alleging a claim that was facially outside the
discretionary function exception.33
Whether the discretionary function exception applies involves a two-part inquiry.
First, the act must “involve an element of judgment or choice.”34 This first part is met “[i]f
a statute, regulation, or policy leaves it to a federal agency or employee to determine when
29
F.D.I.C. v. Meyer, 510 U.S. 471, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994).
30
28 U.S.C. § 1346(b); see United States v. Muniz, 374 U.S. 150 (1963) (confirming the right of a federal
prisoner to sue under the FTCA for injuries received during incarceration).
31
Lane v. Pena, 518 U.S. 187 (1996).
32
28 U.S.C. § 2680(a); see Guile v. United States, 422 F.3d 221, 229 (5th Cir. 2005).
33
See St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency, 556 F.3d 307, 315 (5th Cir. 2009).
34
United States v. Gaubert, 499 U.S. 315, 322 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536,
(1988)) (internal quotations, alternations, and citations omitted).
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and how to take action [.]”35 If there is a violation of a mandatory regulation or policy, then
the discretionary function exception will not apply, because “there was no element of
judgment or choice,” and thus “the employee has no rightful option but to adhere to the
directive.”36
On the other hand, if there was room for judgment or choice in the decision made,
then the challenged conduct was discretionary.37 In such a case, the second step of the
test requires a court to evaluate “whether the conduct is of the kind that the discretionary
function exception was designed to shield” from liability.38 The discretionary function
exception is meant “to prevent judicial ‘second-guessing’ of ... administrative decisions
grounded in social, economic, and political policy through the medium of an action in tort.”39
The discretionary function exception's scope extends beyond high-level
policymakers, and includes government employees at any rank exercising discretion.40 “A
discretionary act is one that involves choice or judgment; there is nothing in that description
that refers exclusively to policymaking or planning functions.”41 Even where government
action is taken on the day-to-day operational level, and implements broader governmental
35
Freeman, 556 F.3d at 337.
36
Berkovitz, 486 U.S. at 536.
37
Id.
38
Gaubert, 499 U.S. at 322-23.
39
United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984).
40
Id. at 813. (“[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the
discretionary function exception applies in a given case.”).
41
Gaubert, 499 U.S. at 325.
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objectives, if that action involves choice or judgment that is “susceptible to policy analysis,”
then it falls within the discretionary function exception.42 Courts also consider the fact that,
‘[w]hen established governmental policy, as expressed or implied by statute, regulation, or
agency guidelines, allows a Government agent to exercise discretion, it must be presumed
that the agent's acts are grounded in policy when exercising that discretion.”43
In this case, the Government contends that all of the alleged acts of omission and
commission by Plaintiffs are directed toward FEMA rather than Johnson, and that the
exception applies to each and every allegation. Plaintiffs’ Complaint alleges that the
Government was “negligent, grossly negligent, and reckless” in the following ways: failing
to provide stairs with handrails to invitees to inspect mobile homes for sale; failing to follow
safety regulations promulgated by FEMA by not providing hand rails for stairs to enter
mobile homes; failing to provide a solid surface upon which to place stairs or ladders when
entering a mobile home for inspection purposes; providing an underrated ladder to invitees
to gain access to Defendant’s mobile homes; failing to follow general safety regulations in
the industry; failing to properly train employees on regulations required for invitee safety
when viewing the property; failing to properly supervise employees, while employees are
showing prospective buyers the property; supplying employees with underrated ladders to
give to invitees to inspect mobile homes; failing to train and supervise employees in the
proper techniques to spot and hold ladders, for invitees being given ladders; failing to
require employees to hold ladders firm, while invitees are exiting mobile homes; failing to
42
Id.
43
Id. at 324.
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properly supervise employees who were constantly using cell phones for personal calls and
not properly attending and monitoring invitees; failing to prevent personal cell phone usage
by employees while at work; and such other negligence, gross negligence, and reckless
acts that will be shown... .”44
Plaintiffs contend that the conduct alleged in this case was neither a policy decision
nor an exercise of discretion in furtherance of public policy goals; thus, the exception
cannot apply. Plaintiffs further argue that Johnson’s alleged acts/omissions are not policy
decisions or administrative actions and do not constitute supervisory or management
decisions. Likewise, they are not susceptible to policy analysis according to Plaintiffs.
1.
Element of Judgment or Choice
Plaintiffs have yet to direct the Court to any mandatory statute, regulation, or policy
prescribing the specific course of conduct that removed the element of judgment or choice
by Johnson. In their Opposition, Plaintiffs state that Johnson testified in her deposition that
it would have been against FEMA policy for her to provide the ladder to Mr. Gibson.45
However, nowhere in the cited pages of Johnson’s deposition does she refer to such a
policy, if one exists.
Furthermore, Plaintiffs’ own arguments as to this policy are
contradictory. In their Opposition, Plaintiffs claim: “What’s more, providing the ladder for
Mr. Gibson’s use was in specific violation of her agency duties, rendering it actionable
under the FTCA and placing her actions far outside the reach of the DFE.”46 On the same
44
Rec. Doc. No. 1, pp. 5-6.
45
Rec. Doc. No. 31, p. 6.
46
Id. at p. 12.
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page, Plaintiffs state: “FEMA did not develop a policy or inform its patrons that they had a
duty to supply their own method of entry and exit into the trailers. Instead, FEMA equipped
its employees with ladders, like the one in this case, to provide patrons inspecting the
homes for sale.”47 Notwithstanding the fact that Plaintiffs have never cited any formal
regulation or policy upon which they rely, these two statements clearly conflict. On the one
hand, Plaintiffs argue that Johnson acknowledged a “specific” FEMA policy not to provide
a ladder to prospective buyers that she allegedly violated. On the other hand, Plaintiffs
later state that FEMA did not have a policy regarding method of entry and exit and,
furthermore, FEMA equipped its employees with ladders to provide for inspection. Plaintiffs
cannot have it both ways. While the Government refers to FEMA’s “no assistance” policy
or directive, the Court remains uncertain of the actual language of the directive and where
this policy is provided to the Court in the record of this case.48
Regardless, Johnson’s testimony does not support Plaintiffs’ position. Specifically,
when asked by which means FEMA sales people provided access in and out of the trailers
for sale, Johnson testified in response: “We actually didn’t provide it. We work with ladders,
and we work with aluminum ladders and a two-step – well, I prefer the two-step stool. And
if someone wanted to use it, they can use it. But just to say that this is for you to get into
the trailer, no, we don’t have that.”49 When questioned whether FEMA had any rules of
47
Id.
48
Even if the parties could identify a specific policy which required that Johnson not assist Mr. Gibson in
getting in and out of the trailers, such a policy would clearly be susceptible to policy analysis.
49
Rec. Doc. No. 40-1, pp. 28, lines 22-25 & p.29, lines 1-2 (Deposition of Joan Johnson).
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operation applicable to management of the site, Johnson responded: “I’m quite sure there
is rules – ... yeah, there’s rules and policies. There’s a board that shows you safety things
that you should do and not do, and as one of them – one of them is how to use the ladder.
You always go into it face up and then you’d come back down backwards.”50 Herman
Jones, who works for FEMA as a logistics management specialist and sales lead, was also
present at the site on the day of Mr. Gibson’s accident. Jones testified that it was not the
FEMA representative’s responsibility to assist a potential buyer into and out of a trailer.51
When asked “[i]s that the policy, official policy in November of 2010,” Jones responded that
it was but that this policy was not written down anywhere.52
The Court simply cannot find that such a general unwritten and unidentified
guideline, not provided by any party to the Court in its specific language and requirements,
is sufficient to deprive the Government of the protection of the discretionary function
exception.53 The Fifth Circuit has held that “[a] policy may direct general policy goals, such
as determining compliance with certain guidelines, but when the policy fails to prescribe
‘specific direction’ as to what course of action an employee must follow, it generally fails
to establish a nondiscretionary duty.”54 Moreover, general duties to promote safety are
50
Id. at pp. 74-75.
51
Rec. Doc. No. 45-2, p. 55, line 10 (Deposition of Herman Jones).
52
Id. at p. 55, lines 14-18.
53
See Autery v. United States, 992 F.2d 1523, 1529 (11th Cir. 1993).
54
Lopez v. U.S. Immigration and Customs Enforcement, 455 F. App’x 427, 433 (5th Cir. Dec. 21,
2011)(quoting Freeman v. United States, 556 F.3d 326, 339-40 (5th Cir. 2009)(emphasis added).
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insufficient to erase any discretion.55 The allegations of this “no assistance” policy are too
broad and conclusory for the Court to conclude that any of the conduct alleged to have
been committed by Johnson was specifically prescribed or prohibited, such that all
discretion was removed from her job function.
In any event, the Court agrees with the Government that providing a ladder is not
the same as personally assisting an individual to climb, descend, or otherwise use the
ladder. Under either party’s version of events, i.e., whether Johnson provided the ladder
or Mr. Gibson requested the ladder, it is clear from the record that Johnson did not assist
Mr. Gibson in the manner in which he used the ladder. The Court further finds that the
conduct alleged did involve an element of judgment or choice on the part of Johnson.
2.
Susceptible to Policy Analysis
The Court likewise finds that the acts and/or omissions allegedly committed by
Johnson were related to the purpose of FEMA’s regulatory regime to sell deactivated FEMA
trailers to the public. Johnson’s decisions under either party’s account, whether Johnson
offered the ladder or Mr. Gibson took it, were part of the decision making process regarding
how to offer and ultimately sell FEMA trailers to the public. Decisions regarding how to
execute this program include decisions about what equipment to use, or not use, in
implementing that program and what cost effective measures are taken in that regard. The
Court finds that, how to provide, or even not to provide, access to the trailers is sufficiently
related to the purposes FEMA sought to accomplish in offering these trailers to the public
55
See Bragg v. United States, 55 F.Supp.2d 575, 583 (S.D. Miss. 1999), citing Kennewick Irrigation Dist. v.
United States, 880 F.2d 1018, 1026–27 (9th Cir.1989).
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for sale.
The Court agrees with the Government that whether to build steps or not to provide
for access to these trailers is an operational decision related to FEMA’s implementation of
offering these units for public sale. Practicality and costs are certainly policy considerations
touching on these decisions.
Clearly, the cost of rebuilding steps for all of the trailers
would have seriously cut into the net price FEMA obtained from the sale of these units.
Thus, FEMA’s desire to “liquidate the mobile homes as inexpensively as possible”56 as
argued by the Government is a clear policy consideration.
To the extent there exists a “no assistance” policy by FEMA with respect to aiding
potential buyers in inspecting the trailers, such a policy is also clearly susceptible to policy
analysis for the reasons presented by the Government. Noting the legal implications for
such a policy, the Government contends that FEMA choosing a “hands off” approach with
assisting potential buyers in their inspection of the trailers lessens the chance that an
employee could place FEMA at risk for falls that might occur in the entering and existing
these trailers.
The Court takes no position on the correctness, soundness, or
implementation of such a policy, but finds that such a policy is easily susceptible to policy
analysis.
3.
Applicable Jurisprudence
In Kohl v. United States,57 a certified bomb technician sued the United States under
the FTCA, seeking recovering for injuries allegedly sustained due to the negligence of a
56
Rec. Doc. No. 34, p. 5.
57
699 F.3d 935 (6th Cir. 2012).
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federal employee operating a winch while collecting debris generated by the planned
detonation of explosives during a government-funded research experiment. The district
court dismissed the case under the discretionary function exception. Kohl appealed to the
Sixth Circuit.
Kohl was a certified bomb technician with the Nashville Police Department who
participated in a research experiment funded by the United States Department of Defense,
which involved constructing and detonating explosive devices in vehicles and then
collecting post-blast debris for laboratory analysis as forensic evidence.58 Following one
such test, Kohl and Officer Todd Mask approached a minivan for inspection. Kohl searched
the passenger’s side, but Mask’s attempt to open the driver’s side door was in vain
because it had “buckled” during the explosion. The team attempted to gain access to the
driver’s side by using a winch on the driver’s side door. Kohl returned to the passenger’s
side door and continued searching for evidence when she felt “pain in the top of [her] head”
and “saw stars.”59 Allegedly, due to the winching, the door came loose and the vehicle’s
door frame crashed into Kohl’s head.60 Kohl sought medical care and was diagnosed with
post-concussive syndrome with persistent headaches and cognitive changes.”61 Kohl sued
the Government under the FTCA claiming that federal employees were negligent in
operating the winch in an unsafe manner, failing to warn her of dangers regarding the
58
Id. at 938, citing 2011 WL 4537969 at *1.
59
Id. (internal citations and quotation marks omitted).
60
Id. at 939.
61
Id.
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winch, conducting the operation, including winching, of the vehicle without proper safety
protocols, and failing to use reasonable and due care to prevent injury to the plaintiff.62 The
district court applied the discretionary function exception and dismissed Kohl’s claims for
lack of subject matter jurisdiction.
The Sixth Circuit provided meaningful guidance on the analysis of the alleged
tortious conduct.63 The court stated that, “[t]he issues of whether the ATF employee who
operated the winch was negligent, and whether the safety precautions taken were
reasonable, are separate inquiries from the analysis of the discretionary-function
exception.”64 The court continued: “‘It is the governing administrative policy,” rather than
the negligence of a particular employee, ‘that determines whether certain conduct is
mandatory for purposes of the discretionary function exception.’”65 Specifically, the court
noted:
Thus, the conduct at issue must be framed in terms of the scope of
administrative authority to use discretion in executing the research
experiment. More properly formulated, the conduct at issue is “the recovery
of forensic evidence and the necessary actions taken to facilitate that
recovery, including actions taken to dislodge the door of the minivan so that
evidence could be recovered.” Kohl, 2011 WL 4537969, at *7. Our analysis
thus focuses on whether ATF's actions in collecting the forensic evidence
from the field test, including decisions about what equipment to use, are
62
Id.
63
Id. At 941. The court found too broad the Government’s emphasis on the context in which the alleged injury
occurred in arguing that decisions related to how best to conduct the experiment involved policy-related
judgments and were thus shielded from liability. However, the court also stated: “Kohl’s formulation of the
conduct at issue is inappropriate for the same reason: by framing the question as whether the ATF employee
operated the winch in a safe manner, Kohl ‘begs the question’.” Id. at 942.
64
Id. at 942.
65
Id., quoting Autery v. United States, 992 F.2d 1523, 1528 (11th Cir. 1993).
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protected by the discretionary-function exception.66
With respect to the first prong, neither party had argued that there was a mandatory
policy or regulation at issue; thus, the court found that the challenged government conduct
involved discretion.67 As to the second prong, the court quoted Gaubert by noting that
“[w]here an act ‘cannot be said to be based on the purposes that the regulatory scheme
seeks to accomplish,’ the discretionary-function exception will not apply.”68 Thus, the court
determined that “the key question in this appeal is whether the conduct at issue was
sufficiently based on the purposes that the regulatory regime - here the research
experiment - sought to accomplish.”69 Noting that this was a close case, the court
ultimately concluded that “[t]he decision to use a winch was part of the decision making
involved in deciding how best to conduct the post-blast investigation.”70
The court further explained:
The planning and execution of the research experiment is susceptible to
66
Id. (emphasis added).
67
Id., citing Berkovitz, 486 U.S. at 536.
68
Id. at 943, quoting Gaubert, 499 U.S. at 325 n. 7. The court noted, for example, that the Gaubert Court
“used negligent driving by a government actor on government business as an example of conduct that would
not be shielded by the discretionary-function exception.” Id. “Driving a car, while it ‘requires the constant
exercise of discretion,’ is not sufficiently connected to regulatory policy to fall within the discretionary-function
exception.” Id.
69
Id.
70
Id., cf. Konizeski v. Livermore Labs (In re Consol. U.S. Atmospheric Testing Litig.), 820 F.2d 982, 993–95
(9th Cir.1987) (finding that claims of negligence for failure to maintain sufficient safety precautions during
“inherently dangerous” field testing of nuclear weapons were barred by the discretionary-function exception);
Creek Nation Indian Hous. v. United States, 677 F.Supp. 1120, 1124–26 (E.D.Okla.1988) (finding, in a case
involving an explosion of bombs being transported by a commercial carrier, that the discretionary-function
exception barred negligence claims against the United States for alleged failure to take adequate safety
precautions regarding transportation of explosives).
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policy analysis, including judgments about how to respond to hazards, what
level of safety precautions to take, and how best to execute the experiment
in a way that balanced the safety needs of the personnel and the need to
gather evidence from the vehicles.71 Decisions about how to execute the
experiment include judgments as to what kinds of equipment to use to extract
the evidence for forensic laboratory analysis. These equipment-related
decisions were “intimately related” to the execution of the field
experiment—in other words, judgments as to how to extract the evidence
from the vehicles after the bombs were detonated, including what equipment
to use, were necessary to the execution of the project.72 Thus, a challenge
to the use of a particular piece of equipment, i.e., the winch, would amount
to a challenge as to the overall execution of the research project.73 The
conduct at issue is thus unlike the Gaubert Court's example of driving a car
in connection with a government mission; the ATF employee's use of the
winch was sufficiently related to the purposes that the post-blast investigation
sought to accomplish to fall within the discretionary-function exception.74
The court also noted that it had “previously concluded that in executing a
government program, the government’s decision as to what equipment to use and how to
use that equipment fall under the discretionary-function exception, absent government
standards or directives.”75 The court found Kohl’s argument that the conduct fell outside
of the exception because it involved machine operator error “of no avail”76 because of the
71
Id. (See Rosebush, 119 F.3d at 444 (explaining that even if there is no indication “that policy concerns were
the basis of a challenged decision, the discretionary function exception applies if the decision is susceptible
to policy analysis”) (citing Myslakowski v. United States, 806 F.2d 94, 97 (6th Cir.1986))).
72
Id. at 943-44. (See Graves v. United States, 872 F.2d 133, 137 (6th Cir. 1989).
73
Id. at 944 (See Bultema, 359 F.3d at 383).
74
Id.
75
Id., citing Totten v. United States, 806 F.2d 698, 701 (6th Cir. 1986)((holding that decisions regarding the
kinds of equipment used and the manner in which fuel was removed following a missile-test failure were
shielded by the discretionary-function exception); see also Flynn v. United States, 902 F.2d 1524, 1530–31
(10th Cir.1990) (holding that the discretionary-function exception barred claims against National Park Service
employees for negligent operation of emergency lights on emergency vehicles because there were “no fixed
standards for training or use of emergency vehicles”).
76
Id.
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Supreme Court’s holding that “the fact that the decision making involved occurred on an
operational level does not affect the analysis.”77 Clearly, “[t]he discretionary-function
exception protects both high-level policymakers and the employees who implement broader
governmental objectives.”78 Relying on Gaubert and Varig Airlines, the court concluded:
These cases make clear that the discretionary-function exception protects
decisions at the operational level, including choices like the one ATF
employee Guerrero made in this case about when to use a winch. Because
ATF employees had discretion to decide how best to conduct the field test,
including which equipment to use, the decision to use a specific piece of
equipment in this particular situation, i.e., to use a winch to open the door of
the minivan, also falls within the government's discretionary decisions. This
is so even if Guerrero was negligent in using the equipment—the
discretionary-function exception protects even abuses of discretion. 28
U.S.C. § 2680(a) (stating that the FTCA does not apply to claims based on
discretionary functions, “whether or not the discretion involved [was]
abused”). Kohl's claims against the United States for negligence during the
research experiment are thus barred by the discretionary-function
exception.79
The Court recognizes that Kohl is not binding authority, but the Court is persuaded
by the reasoning and analysis in Kohl as applied to similar factual allegations involving the
alleged negligence of a government employee in the use (or misuse) of equipment.
Furthermore, all of Johnson’s choices, even if erroneous, were clearly discretionary
decisions made at the operational level which are protected by the discretionary function
exception because those decisions were all related to the purpose sought to be
accomplished by FEMA – the sale of the disaster relief trailers.
77
Id., citing Gaubert, 499 U.S. at 325; Varig Airlines, 467 U.S. at 820.
78
Id.
79
Id. at 945.
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The Court also finds the Fifth Circuit’s decision in Lively v. United States80 applicable
to this case. In Lively, several stevedores allegedly injured from exposure to asbestos
imported for stockpiling by the Government brought suit under the FTCA. The district court
for the Middle District of Louisiana dismissed the claims for lack of subject matter
jurisdiction based on the discretionary function exception. The plaintiffs appealed.
The Lively plaintiffs were longshoremen working on the docks of the Baton Rouge
Port Commission in Port Allen, Louisiana. Between 1959 and 1966, they were exposed to
raw asbestos which they had helped unload from ships traveling to South Africa. The
asbestos had been imported for stockpiling by the General Services Administration (GSA).
The Administrator of the GSA was authorized by statute to make purchases and provide
for the storage security and maintenance of the materials.81
The plaintiffs alleged that the United States was liable for their injuries because it
negligently failed to warn them of the danger of exposure to asbestos and negligently failed
to provide proper equipment to reduce this danger.82 The Fifth Circuit affirmed the district
court’s application of the discretionary function exception, finding:
The activities at issue in this case are the decision to stockpile the asbestos;
the decisions regarding the manner of procuring the asbestos, including the
decision not to place warnings on the bags; and the decision not to provide
or require safety equipment or safety programs for the stevedores. The
decision to stockpile asbestos was an administrative decision grounded in
social, economic and public policy.
80
870 F.2d 296 (5th Cir. 1989).
81
Id. at 297.
82
Id.
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.
.
.
The G.S.A.'s choice of procurement policies also is within the exception. As
we stated in Ford v. American Motors Co.: “Both the evaluation of actual or
suspected hazards and the decision to proceed in a particular manner in light
of those hazards, are protected discretionary acts not subject to tort claims
...” 770 F.2d 465, 467 (5th Cir.1985). Consequently, in Ford we held that the
Government's decision to sell used United States Postal Service jeeps to the
public without warning of the vehicles' propensity to roll over was a
discretionary act exempted from FTCA liability. Like the Postal Service in
Ford, the G.S.A. in this case chose to proceed with a program without
warning of the hazards of the substance to which it was exposing the public.
G.S.A. had the authority to promulgate specifications for purchasing
asbestos, including specifications for packaging the material. When it
exercised its authority, G.S.A. chose not to require a warning on the asbestos
packages. Like the decision to stockpile the asbestos, the procurement
policies are within the discretionary function exception.83
The Court finds that, for the same reasons set forth in Lively, the decision by FEMA
to sell FEMA trailers to the public and the manner in which to implement such a program,
including the decision not to provide stairs, constitute administrative decisions clearly
grounded in social, economic, and public policy. FEMA was not required to warn every
potential buyer of every potential danger relating to the inspection of the trailers. Thus, the
Court finds that the discretionary function exception to the FTCA applies to the all of the
conduct allegedly committed by Johnson on behalf of FEMA in this case.
III.
CONCLUSION
For the reasons set forth above, the Motion for Summary Judgment84 by Defendants,
83
Id. at 298.
84
Rec. Doc. No. 28.
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United States of American and the Federal Emergency Management Agency (FEMA), is
GRANTED. The Court lacks subject matter jurisdiction over this case based on the
discretionary function exception to the Federal Tort Claims Act. Plaintiff’s case is dismissed
with prejudice. The Final Pre-Trial Conference set for September 9, 2014 is hereby
CANCELLED. The Bench Trial set for September 22, 2014, is also CANCELLED. All other
pending motions are denied as moot.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana, on September 3, 2014.
S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
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