Al-Khazraji v. United States of America, Department of the Army

Filing 27

DECISION AND ORDER GRANTING Defendant's 17 Motion for Substitution of the United States as Defendant and Dismissal pursuant to Rule 12 (b)(1); DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge U.S.D.C. on 2/20/2012. (MEAL)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
OMRAN AL-KHAZRAJI,
Plaintiff,
v.

DECISION AND ORDER
09-CV-521S

UNITED STATES OF AMERICA, DEPARTMENT
OF THE ARMY,
Defendant.

I. INTRODUCTION
Plaintiff Omran Al-Khazraji commenced this action pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346 and 2671 et seq., against the United States
Department of the Army seeking damages for injuries he sustained while employed as a
role player in military training scenarios. Pending before this Court is Defendant’s motion
to substitute the United States for the Department of the Army as defendant in this action,
and to dismiss Plaintiff’s complaint pursuant to FED . R. CIV. P. 12 (b)(1) for lack of subject
matter jurisdiction. For the reasons discussed below, this Court finds the matter fully
briefed and oral argument unnecessary, and further concludes that Defendant’s motion
should be granted in its entirety.
II. BACKGROUND
Plaintiff, who immigrated to the United States from Iraq in 1997, was employed as
a Foreign Language Speaking (“FLS”) role player by non-party Goldbelt Eagle LLC
(“Goldbelt”) for training exercises on military bases. (Declaration of Plaintiff Omran AlKhazraji, Docket No. 23, ¶¶ 1, 6, 9, 11-15, Ex A; Deposition of Plaintiff, Docket No. 18-1,
1

at 14, 16). On October 4, 2006, Plaintiff was playing the role of a Civilian on the Battlefield
( “COB”), specifically a sheik, in a military training scenario being conducted at Fort Dix in
New Jersey. (Complaint, Docket No. 1, ¶¶ 5-7; Pl’s Decl. ¶ 24). During the course of the
training scenario, a Hand Grenade Simulator (“HGS”) was thrown by a U.S. Army sergeant
that was intended to land in a detonation pit in the training lane, however, the HGS failed
to hit that target. (Deposition of Master Sergeant Darrell Eugene Lyon, Docket No. 18-2,
at 19-20, 29-36, 39-40). Plaintiff “was struck by shrapnel and debris from [this] explosive
device.” (Complaint ¶ 6).
In April 2007, Plaintiff submitted a claim to the Department of the Army seeking two
million dollars for injuries sustained to his neck and left shoulder as a result of this incident,
(Docket No. 18-2 at 2), and this claim was amended in August 2008 to reflect four million
dollars in alleged damages. (Complaint ¶ 14).

These claims were rejected by the

Department of the Army in January 2009. (Complaint ¶ 14). Plaintiff commenced the
instant action on June 3, 2009, alleging that this Court has jurisdiction over his personal
injury claim pursuant to 28 U.S.C. § 1346 (b).1 (Complaint ¶ 1). Defendant asserted the
lack of subject matter jurisdiction as an affirmative defense in its Answer (Docket No. 5)
and its Amended Answer (Docket No. 12), and now moves pursuant to Rule 12 (b)(1) to
dismiss the complaint on that ground. (Docket No. 17).2 Defendant also seeks an order
1

Plaintiff’s Com plaint refers to “28 U.S.C. §1348(b)” as the basis for jurisdiction. This appears,
however, to be a typographical error, and indeed Defendant has treated it as such. (See Def’s Mem . of
Law, Docket No. 20, at 1).
2

In support of its m otion for substitution and dism issal (Docket No. 17), Defendant subm itted the
Declaration of Michael S. Cerrone, Esq. (Docket No. 18) with Exhibits A-N (Docket Nos. 18-1 to 18-3), the
Declaration of Sergeant First Class Michael J. Kriewaldt (Docket No. 19), and a supporting Mem orandum
of Law (Docket No. 20). Plaintiff responded with the Declaration of Harry G. Modeas, Jr., Esq. (Docket
No. 22) with Exhibits A-L (Docket Nos. 22-1 to 22-12), the Declaration of Plaintiff Om ran Al-Khazraji
(Docket No. 23), and an opposing Mem orandum of Law (Docket No. 25). Defendant filed a reply

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substituting the United States for the Department of the Army as defendant. (Docket No.
17).
III. DISCUSSION
“A motion to dismiss under Rule 12 (b)(1) for lack of subject matter jurisdiction can
raise a facial challenge based on the pleadings, or a factual challenge based on extrinsic
evidence.” SEG Vanguard General Corp. v. Ji, 195 F.Supp.2d 564, 566 (S.D.N.Y.
2002)(internal quotation marks omitted). Where, as here, a factual challenge is raised, “the
court may resolve [any] disputed jurisdictional fact issues by referring to evidence outside
of the pleadings, such as affidavits.” Zappia Middle East Const. Co. Ltd. v. Emirate of Abu
Dhabi, 215 F.3d 247, 253 (2d Cir. 2000). The party asserting jurisdiction has the burden
of showing by a preponderance of the evidence that subject matter jurisdiction exists, and
such a showing “is not made by drawing from the pleadings inferences favorable to [that
party].” APWU v. Potter, 343 F.3d 619, 623 (2d Cir.2003) (internal citation and quotation
marks omitted); see Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007).
Plaintiff asserts that this Court has subject matter jurisdiction pursuant to 28 U.S.C.
§ 1346 (b), which provides that district courts “shall have exclusive jurisdiction of civil
actions on claims against the United States” (emphasis added). Initially, Plaintiff correctly
concedes that the United States, rather than the Department of the Army, is the proper and
only party that can be sued pursuant to § 1346. Pl’s Mem. of Law, Docket No. 25, at 1;
See 28 U.S.C. § 2679 (a)(the authority of a federal agency to sue and be sued does not
authorize suits against an individual federal agency under § 1346); Myers & Myers, Inc. v.

Mem orandum of Law (Docket No. 26).

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U.S. Postal Serv., 527 F.2d 1252, 1256 (2d Cir. 1975)(suit under the FTCA lies, if at all,
only against the United States); Fisko v. U.S. General Serv. Admin., 395 F.Supp.2d 57, 59
(S.D.N.Y. 2005)(same). That part of Defendant’s motion seeking substitution is therefore
granted. Further, under the principle of sovereign immunity, it is axiomatic that the United
States may not be sued without its consent. Adeleke v. United States, 355 F.3d 144, 150
(2d Cir. 2004), citing United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77
L.Ed.2d 580 (1983). Thus, where, as here, the United States is the defendant, a court’s
jurisdiction is defined by the terms of the United States’ consent to be sued. See Hamm,
483 F.3d at 137; Wake v. United States, 89 F.3d 53, 57 (2d Cir. 1996).
A.

United States as Special Employer
In enacting § 1346, Congress waived sovereign immunity with respect to certain

suits against the United States, including, as relevant here:
personal 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, 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). Defendant argues that, even if a private person, the United States
could not be held liable to Plaintiff in the instant case in accordance with the law of New
Jersey, where the incident occurred, because his claim is barred under New Jersey’s
workers’ compensation scheme. (Def’s Mem. of Law, Docket No. 20, at 5-11).
“It is well settled under New Jersey law that an employee may have two employers
for purposes of the work[ers’] compensation scheme - a primary employer and a ‘special’
employer,” both of whom may be liable to that employee for workers’ compensation. Roma
v. United States, 344 F.3d 352, 364 (3d Cir. 2003), cert denied 543 U.S. 874 (2004);
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Blessing v. T.Shriver & Co., 228 A2d 711, 713 (N.J.Super.A.D. 1967). “[R]ecovery against
one bars the employee from maintaining a tort action against the other for the same injury.”
Antheunisse v. Tiffany & Co., Inc., 551 A.2d 1006, 1007 (N.J.Super.A.D. 1998), certif.
denied 115 N.J. 59 (1989); see Blessing, 344 A.2d 713. Here, Plaintiff concedes that he
is receiving workers’ compensation benefits as a result of his injury at Fort Dix. Pl’s Dep.
at 61-62. Defendant argues that it was a special employer of Plaintiff within the meaning
of New Jersey’s workers’ compensation scheme, and therefore Plaintiff is barred from
seeking further compensation from it.
Under New Jersey law, to determine whether a plaintiff is a ‘special employee’ of
a defendant for workers’ compensation purposes, a three-prong test is generally applied.
Roma, 344 F.3d at 364; see Volb v. G.E. Capital Corp., 651 A2d 1002, 1005 (N.J. 1995).
When a general employer lends an employee to a special employer, the
special employer becomes liable for work[ers’] compensation only if:
(a) The employee has made a contract of hire, express or
implied, with the special employer;
(b) The work being done is essentially that of the special
employer; and
(c) The special employer has the right to control the details of
the work.
Blessing, 228 A2d at 713, quoting 1A Larson, Workmen’s Compensation § 48.00, (1966),
p.710; Volb, 651 A2d at 1005. Some New Jersey courts have also found significant (d)
whether the special employer pays the employee’s wages and (e) whether the special
employer has the power to hire, discharge, or recall the employee. Roma, 344 F.3d at 364;
Blessing, 228 A2d at 713. “None of these factors is necessarily dispositive, and not all five
must be satisfied in order for a special employment relationship to exist.” Marino v.
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Industrial Crating Co., 358 F.3d 241, 244 (3d Cir. 2004), citing Blessing, 228 A2d at 715.
The Supreme Court of New Jersey has stated, however, that “the most important factor in
determining a special employee’s status is whether the borrowing employer had the right
to control the special employee’s work.” Volb, 651 A2d at 1005; Roma, 344 F3d at 364.
Plaintiff argues that Defendant lacked any significant control over his work as a role
player because he “was supervised by his Goldbelt field manager and his team leader,”
from whom he received training, costuming, and equipment. Pl’s Mem. of Law at 9; Pl’s
Dep. at 23. Plaintiff highlights that the contract between Goldbelt and Defendant describes
the scope of Goldbelt’s work generally as “provid[ing] labor and supervision necessary to
train U.S. military, other DoD and federal agency personnel in support of Operation Iraqi
Freedom (OIF) and Operation Enduring Freedom (OEF) at Fort Dix and other locations.”
Contract, Docket Nos. 18-1 and 22-4, ¶ 1.1. Further, at his deposition, he testified that he
received his instructions from only his team leader “Harath” while participating in training
scenarios at Fort Dix, and he never received commands from military personnel. Pl’s Dep
at 23, 35-36; see Pl’s Decl. ¶¶ 16, 22-23. Plaintiff’s argument on this point relies almost
exclusively on these assertions, which are noticeably lacking in supporting detail. See
Zappia Middle East Const. Co. Ltd, 215 F.3d at 253 (a party cannot rely solely on
conclusory allegations in response to a Rule 12 (b)(1) motion to dismiss). Further, Plaintiff’s
assertions are contradicted by the deposition testimony of Goldbelt employees and Fort
Dix military personnel, as well as the contract between Goldbelt and Defendant.
The governing contract makes clear that it is Defendant, not Goldbelt, that is in
charge of the details of how training occurs, particularly with respect to the role players
such as Plaintiff. The contract specifies that Goldbelt will provide “all required labo[r] to
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include Project Manager, Assistant Project Manager, Field Manager, 4 Team Leaders, 30
FLS Role Players and 95 Role Players.” Contract, Docket No. 22-4 at 4. Despite the
requirement that Goldbelt provide supervisors, “[a]ll Contract employees will be trained at
the COB/FLS orientation provided by the 5th Training Brigade prior to performing the OB,
FLS, OPFOR, translator, detainee and casualty roles.” Contract ¶ 1.3.2.5 (emphasis
added). The contract also reflects that “[a]ll contractor employees will receive a safety
briefing from the military representative prior to the beginning of the training period,”
including “instruction on safe and appropriate interaction with personnel being trained.”
Contract, Docket No. 22-4, ¶ 1.12.1. It therefore appears that even Goldbelt supervisors
were subject to training and supervision by Defendant. Thus, even if Plaintiff was never
given instructions directly by military personnel, a factual finding this Court does not make,
Defendant still had the right to control the details of Plaintiff’s work which, under New
Jersey law, is a more determinative factor than the exercise of control itself. Kelly v.
Geriatric & Med. Servs., Inc., 671 A.2d 631, 635 (N.J. Super.A.D. 1996), affd 685 A.2d
943 (N.J. 1996) (fact that an employer has the right to control duties determinative even
where an employee has expertise sufficient to render direction largely unnecessary).
The contract further states that Goldbelt was to provide “appropriate foreignlanguage-speaking personnel as role-players to support [training] lane exercises during
normal operating hours,” and that such personnel “will integrate into existing Civilian on the
Battlefield training exercises” as scheduled by Defendant. Contract ¶ 3.1.3 (emphasis
added). Personnel provided by Goldbelt would be used to “augment military training.”
Contract ¶ 3.1. The hours for which Goldbelt was to provide foreign language speaking
role players and COBs could be “tailored to meet the needs of the mission readiness
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exercise,” and Defendant specifically reserved “the right to change COB requirements to
meet the training mission at any time during the contract.” Contract ¶¶ 1.7.1; 1.7.4; 3.4.
Further, the deposition testimony also supports the conclusion that, practically
speaking, control over Plaintiff’s specific duties rested with Defendant. Aubrey Herrin,
Goldbelt’s project manager during the Fort Dix contract in question, testified that Goldbelt
did not “really play any role” with respect to training simulations “other than providing
civilian workers” as role players. Deposition of Aubrey Herrin, Docket Nos. 18-1 and 22-5,
at 15, 17, 23, 27, 44. Defendant would send Goldbelt a schedule of “what [training] lanes
they were running, the times they were supposed to run from and how many folks they
wanted divided by . . . COBs, civilians on the battle field, and the FLS role players,” and
Herrin would turn that information into a schedule. Herrin Dep at 23-24. Herrin specifically
denied that Goldbelt personnel “coordinate[d] any training,” and also denied ever observing
a training simulation with a Goldbelt employee in charge. Herrin Dep at 26-27. Instead,
every training lane was supervised by military personnel,“observer controllers” who were
“the ones that directed the role players as to what to do, as well as grading the soldiers for
how they performed.” Herrin Dep at 26-27. Goldbelt field managers and team leaders
“would typically sign folks in to the [training] lane,” issue training weapons and uniforms as
necessary, and then Goldbelt supervisors “pretty much lost all control until . . . the exercise
index ended.” Herrin Dep at 30-32, 46, 70. Any assertion that role players never received
instruction from military personnel was, in Herrin’s opinion, untrue, as “[t]he military
scenarios, they change[d] as the war changed . . . the only people who would know what
they are supposed to be doing every day were the [officers in charge]. And they didn’t do
the same scenarios every day.” Herrin Dep at 31.
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Kimo Kelly McEwen, a deputy program manager that worked on Goldbelt contracts,
including those at Fort Dix, similarly testified that Goldbelt team leaders “were there at the
beginning of each [training] lane, and they would sign everybody in, take attendance, make
sure everybody had the proper equipment with them before they went in, and then hand
over a copy of the roster to the Army’s observer/controller or the person in charge of that
lane.” Deposition of Kimo Kelly McEwen, Docket No. 18-2, at 13-18, 33-34. Instructions
regarding the training scenario, the roles to be played, the objective of the exercise, and
a safety briefing were given by military personnel. (McEwen Dep at 35-38). McEwen
explained that, if Goldbelt personnel conveyed operational information, that information
would have come from Defendant first. McEwen Dep at 37-38.
Defendant also offered the deposition testimony of Master Sergeant Darren Eugene
Lyon, who was the Non-Commissioned Officer in Charge of the Dismounted Improvised
Explosive Device training lane on the day Plaintiff was injured. Lyon Dep. at 5-8, 19-20.
Lyon similarly testified that Goldbelt personnel would bring the role players to the training
lane, “give them their briefing or take their attendance,” and then the role players would be
handed off to Sergeant Collo, whose “whole job is to work with all the COB[s] . . . he was
pretty much their liaison.” Lyon Dep at 12-13, 20. Sergeant Collo would give the role
players a safety briefing every morning that had been prepared by Army personnel, as he
did on the morning of Plaintiff’s injury, and then they would be told about the training
scenario, “exactly what was going to happen and where they should go at that time when
it actually happened.” Lyon Dep at 21-22, 23-26. Lyon explained that the instructions given
to the role players was dependent on how the soldiers acted and reacted to the situation
presented, and if the soldiers did not pass the exercise on the first round, changes would
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be made to the scenario and the exercise would be conducted again. Lyon Dep. at 13-17.
In light of the terms of the contract between Goldbelt and Defendant, as well as the
deposition testimony, this Court concludes that, although Plaintiff was hired by Goldbelt
and Goldbelt supervisors were present at Fort Dix, “the right to direct the on-site work
assignments and to control that work lay with [Defendant].” Kelly, 671 A.2d at 636.
Notably, Defendant also “had full control over whether [Plaintiff] would continue to work at
[Fort Dix] and indeed whether [he] would ever again work at any of its other facilities.” Kelly,
671 A2d at 636. Pursuant to the contract, Defendant had “the right to restrict the
employment . . . of any contractor employee, or prospective employee, who is identified as
a potential threat to the health, safety, security, and general well being or operational
mission of the installation and its population.” Contract ¶ 1.3.2.4. Indeed, several weeks
after his injury, Plaintiff himself was issued a formal order of ejection from the base, and
his contractor identification card seized, as a result of his alleged participation in an
altercation. Pl’s Dep at 72-73; Docket No. 18-3 (incident report). Contrary to Plaintiff’s
contention that Defendant’s ability to expel Plaintiff from a military facility is of no moment,
New Jersey courts have found that the right to control whether an employee would be
assigned to a certain location is “the functional equivalent of the power to discharge” that
employee. Kelly, 671 A.2d at 636; Gore v. Hepworth, 720 A.2d 350, 354 (N.J. Super. A.D.
1998), certif. denied, 726 A.2d 934 (N.J. 1999). Here, Defendant could and did “discharge”
Plaintiff from his employment at Fort Dix. Kelly, 671 A.2d at 636; Gore, 720 A.2d at 354.
Also relevant to both the issue of control and the existence of an express or implied
contract relationship, discussed further below, is whether the employee was engaged in
the business of his general employer or the business of the purported special employer at
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the time in question. As Plaintiff notes, there is an inference under New Jersey law that
an “employee remains in his general employment so long as, by the service rendered
another, he is performing the business entrusted to him by the general employer.” Murin
v. Frapaul Const. Co., 573 A.2d 989, 993 (N.J.Super.A.D. 1990). Nonetheless, Plaintiff’s
argument that he was performing the work of Goldbelt, not Defendant, at the time he was
injured is without merit. See Pl’s Mem. of Law, at 5-7. Plaintiff cannot claim that Goldbelt
was engaged in the business of performing overseas military operations, and there is no
dispute that preparation for such overseas operations was the purpose of the training
exercises for which Goldbelt provided supporting personnel.
By way of comparison, in Kelly v. Geriatric & Med. Servs., Inc., although the plaintiff,
a licensed practical nurse, was an employee of a temporary staffing firm, the court found
that she was also a special employee of the defendant health care facility at which she was
placed, in part because there was no dispute that “the regular business activity of plaintiff’s
general employer . . . was the placing of nursing in temporary employment,” whereas the
nursing duties the plaintiff actually performed were in furtherance of the health care
business of the defendant. Kelly, 671 A.2d 631, 633, 636 (N.J. Super.A.D. 1996), affd 685
A.2d 943 (N.J. 1996). In contrast, the plaintiff in Blessing had been assigned by his
general employer, a detective agency, to work as a security guard at the purported special
employer’s foundry. 228 A.2d at 712. That plaintiff’s specific duties were dictated by his
general employer and included patrolling for fires, theft, and other hazards, duties more
related to the general employer’s business of providing security than the purported special
employer’s business of manufacturing. Blessing, 228 A.2d at 712, 716. As such, the
Blessing court found that any control over the plaintiff exercised by the purported special
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employer was minimal, and there was no basis for predicating an employee relationship
between the two. 228 A.2d at 716. The instant case is much more akin to Kelly, and as
such falls within the category of “employment agency cases, in which the employee is
almost universally held to be a ‘special employee’ of the business employer that has hired
him as a temporary helper.” Marino, 358 F.3d at 247.
“[B]ecause the employee loses certain rights along with those he gains when he
enters a new employment relationship,” such as “the right to sue the special employer at
common law for negligence,” New Jersey courts also consider whether an employee
consented to the employment relationship Murin, 573 A.2d at 993. Although no express
contract of employment between Plaintiff and Defendant existed here, an implied contract
can be found where a special employee’s acceptance of an employment relationship with
the special employer is manifest from the circumstances.

Kelly, 671 A.2d at 634;

Antheunisse, 551 A.2d at 1007-1008. For example, implied consent has been found where
an employee knew that the general employer would hire him or her out to various
employers, and the employee accepted the terms of employment with the special employer
by complying with that new employer’s direction and control. Kelly, 671 A.2d at 634;
Antheunisse, 551 A.2d at 1008.
Here, Plaintiff had previously been hired by Goldbelt to work as a FLS role player
in connection with other contracts at Fort Dix and at Fort Drum in New York. Pl’s Decl. ¶¶
9, 12-14 (Plaintiff first hired by Goldbelt in 2004); see Contract, Docket No. 22-4 (contract
governing at the time of Plaintiff’s injury was effective July 25, 2006). He was therefore
aware of what the terms and conditions of his employment at Fort Dix would be when he
was hired by Goldbelt to work there. See Pl’s Decl. ¶¶ 12-14, Ex. A. Moreover, Defendant
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directly provided all Goldbelt contract employees meals, as well as lodging for non-local
employees such as Plaintiff. Contract ¶ 1.11.1.2; see Complaint ¶ 2; Pl’s Decl. Ex A;
Docket No. 18-3 (Plaintiff is a Buffalo, New York resident and the altercation in which he
allegedly participated took place with his roommates in Defendant’s barracks). Under
these circumstances, the record supports the conclusion that Plaintiff implicitly consented
to an employment relationship with Defendant. See Antheunisse, 551 A.2d at 1008
(plaintiff impliedly contracted with special employer by voluntarily reporting to work and
accepting training and guidance provided by that employer). Finally, the fact that Plaintiff
may have been paid by Goldbelt is of no moment where, as here, “[t]he money used to pay
[his] wages came indirectly out of the fees paid by defendant for plaintiff’s services.” Kelly,
671 A.2d at 636; see Contract, Docket No. 22-4 at 4 (itemizing labor costs, including costs
for FLS Role Players, at $3,995,587.84).
In sum, the preponderance of the evidence does not support Plaintiff’s conclusory
assertions that he never received direction, control or supervision from Defendant’s
personnel at Fort Dix. See generally APWU, 343 F.3d at 623. Instead, the record
establishes that: (1) Plaintiff implicitly consented to an employment contract with
Defendant; (2) Plaintiff, by participating in the military training scenarios, was essentially
performing the work of Defendant; (3) Defendant had the right to control the details of
Plaintiff’s work; (4) Defendant’s authority to preclude Plaintiff from Fort Dix and other
military bases contract constitutes the ability to ‘discharge’ him; and (5) Defendant paid
Plaintiff’s wages indirectly and provided him directly with food and lodging as part of his
employment. See generally Volb, 651 A.2d at 1005; Blessing, 228 A.2d at 713. This Court
therefore concludes that Plaintiff was a special employee of Defendant for the purposes
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of New Jersey’s workers’ compensation scheme, and as such, Plaintiff is precluded from
maintaining the present tort action against Defendant.

Kelly, 671 A.2d at 636;

Antheunisse, 551 A.2d at 1007; Blessing, 344 A2d 713. Because Defendant cannot be
held liable in accordance with the law of the place where the act or omission occurred, this
Court lacks subject matter jurisdiction over the case. See 28 U.S.C. § 1346 (b).
B.

The Discretionary Function Exception
Defendant argues in the alternative that this Court also lacks subject matter

jurisdiction because his claim is “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), and such discretionary activities are specifically exempted from § 1346 (b)’s
waiver of immunity. Id. Because this Court has already determined that it lacks subject
matter jurisdiction, this issue will be considered only briefly. The discretionary function
exception “protects only governmental actions and decisions based upon public policy.”
Berkovitz v. United States, 486 U.S. 531, 537, 108 S.Ct. 1954, 100 L.E.2d. 531 (1988).
Specifically, suit is barred where (1) the acts alleged to be negligent are discretionary, “in
that they involve an ‘element of judgment or choice’ and are not compelled by statute or
regulation,” and (2) “the judgment or choice in question must be grounded in
‘considerations of public policy’ or susceptible to policy analysis.” Coulthurst v. United
States, 214 F.3d 106, 109 (2d Cir. 2000), citing United States v. Gaubert, 499 U.S. 315,
111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) and Berkovitz, 486 U.S. at 536-537.
Defendant argues that the discretionary function exception applies in this case
because the Army exercises significant discretion in determining whether or not to use
14

simulated explosives as part of training scenarios, such as the HGS that allegedly caused
Plaintiff’s injury, a decision that requires the balancing of the need for combat readiness
against “the modest safety concerns raised with the use of simulated explosives.” Def’s
Mem. of Law at 22-23. Plaintiff responds that he is not challenging the use of simulated
explosives during training, but instead he is alleging that the Hand Grenade Simulator was
not handled properly on the day of his injury. Pl’s Mem. of Law at 11-12. A fair reading of
the Complaint supports Plaintiff’s argument that this case “involves negligence unrelated
to any plausible policy objectives.” Coulthurst, 214 F.3d at 111. Plaintiff specifically alleges
that Defendant was negligent in failing to provide a safe work environment; “detonating the
explosive device at a time and in an area where it could cause injury to the Plaintiff;” failing
to warn of the detonation, and failing to employ proper safety standards when detonating
the explosive device. Complaint ¶ 8. Plaintiff’s claim is therefore not based on a policy
determination that simulated explosive devices were necessary for the proper preparation
of combat soldiers, but rather it is grounded in the allegation that Defendant’s employees
handled an explosive device negligently, thereby creating an unsafe work environment that
resulted in injury to Plaintiff. See Coulthurst, 214 F.3d at 111 (failure to properly inspect
equipment or report damage to same are examples of negligence outside the scope of the
discretionary function exception). The discretionary function exception is therefore not
applicable in the instant case.
IV. CONCLUSION
In opposition to Defendant’s factual challenge, Plaintiff failed to establish by a
preponderance of the evidence that subject matter jurisdiction exists. Defendant’s motion
to dismiss the complaint is therefore granted.
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V. ORDERS
IT HEREBY IS ORDERED that Defendant’s Motion for Substitution of the United
States as Defendant and Dismissal pursuant to Rule 12 (b)(1) (Docket No. 17) is
GRANTED;
FURTHER, that the Clerk of the Court is directed to take the necessary steps to
close this case.
SO ORDERED.

Dated: February 20, 2012
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
Chief Judge
United States District Judge

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