Gregory v. City of Memphis et al

Filing 239

ORDER granting 160 Motion to Dismiss for Lack of Subject-Matter Jurisdiction. Signed by Judge Samuel H. Mays, Jr on 03/26/2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

RUSSELL GREGORY, III, In his
capacity as Personal
Representative of the Estate
of Mary Fisher, and in his
capacity as Guardian of ___, a
Minor, the heir of Mary
Fisher, deceased,
Plaintiff,
v.
CITY OF MEMPHIS, OFFICER
PATRICK S. TAYLOR,
individually and as an
employee of the Memphis Police
Department, and OFFICER JOEL
O. BIRD, individually and in
his official capacity as an
officer and employee of the
Memphis Police Department,
Defendants,
and
OFFICER PATRICK S. TAYLOR,
Cross-Claimant and/or CounterClaimant,
v.
CITY OF MEMPHIS, CrossDefendant, and RUSSELL GREGORY
III, in his capacity as
Personal Representative of the
Estate of Mary Fisher, and in
his capacity as Guardian of
___, a Minor, the heir of Mary
Fisher, deceased, CounterDefendant.

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No. 07-02445

RUSSELL GREGORY, III, In his
capacity as Personal
Representative of the Estate
of Mary Fisher, and in his
capacity as Guardian of ___,
a Minor, the heir of Mary
Fisher, deceased,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
and

PATRICK TAYLOR,

Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Nos.

09-2054, 09-2730

ORDER GRANTING UNITED STATES’
MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION

Plaintiff Russell Gregory III (“Gregory”), as Personal
Representative of the Estate of Mary Fisher (“Fisher”) and the
Guardian of Fisher’s heir, her minor child, brings suit for
deprivation of Fisher’s Fourth Amendment rights, state law
2

torts, and negligence under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671, et seq.

Gregory’s claims against

the City of Memphis (“Memphis”), Memphis Police Officer Patrick
Taylor (“Taylor”), Memphis Police Officer Joel Bird (“Bird”),
and the United States of America (the “United States” or the
“Government”) were consolidated by Order of the Court on August
1, 2012.

(ECF No. 136.)

Taylor’s claim against the United

States for negligence under the FTCA was also among the claims
consolidated.

(Id.)

Before the Court is the United States of America’s April
27, 2012 combined Motion to Dismiss the complaints of Gregory
and Taylor for lack of subject-matter jurisdiction.
Dismiss, ECF No. 160.)

Gregory responded on July 19, 2012.

(Gregory’s Resp., ECF No. 174.)
2012.

Taylor responded on August 23,

(Taylor’s Resp., ECF No. 182.)

on September 24, 2012.

(Mot. to

The United States replied

(Reply, ECF No. 198.)

For the following

reasons the United States’ Motion to Dismiss is GRANTED.
I.

Background

This case arises from the death of U.S. Marshal Mary Fisher on
May 13-14, 2006.

The facts are those alleged in Gregory’s

complaint (Compl. 09-cv-2054, ECF No. 1), unless otherwise
indicated. During the week of May 10-14, 2006, Fisher attended a
United States Marshal Service (“USMS”) training seminar in
Atlanta, Georgia.

(Id. ¶ 6.)

Fisher’s supervisor Scott Sanders
3

(“Sanders”) was present at the seminar and was well acquainted
with Fisher’s normal behavior and appearance.

(Id.)

Taylor

contends that other supervisors and employees of the USMS
(collectively with Sanders the “Marshals”) were present on May
13 and observed Fisher’s bizarre and unusual behavior at all
relevant times.

(Compl. 09-2730, ¶ 9, ECF No. 1.) On the

morning of May 13, Fisher reported high blood pressure and
displayed an altered mental state, causing Sanders to to tell
her he would fly to Memphis with her.

(Compl. 09-2054, ¶ 7.)

Fisher refused and returned to Memphis in her government-owned
vehicle.

(Id.)

Both Plaintiffs contend that the Marshals had

actual knowledge that Fisher was mentally unwell, in need of
medical attention, and in possession of a firearm.

(Compl. 09-

2730, ¶ 13-16; Compl. 09-2054, ¶ 8.)
Sanders instructed Fisher to follow a specified route to
Memphis and spoke with her several times during her drive.
(Compl. 09-2054, ¶ 10.)

Fisher did not comply with Sanders’

instructions and displayed paranoid thoughts.

(Id.)

Marshals did not attempt to stop Fisher in Nashville.
09-2730, ¶ 22.)

The
(Compl.

When Fisher returned to her home in Memphis,

she called the local police twice to dispatch an officer based
on her mistaken belief that an intruder was in her home.
(Compl. 09-2054, ¶ 12.)

Fisher left her home and drove around

Memphis and Shelby County for several hours in her personal
4

vehicle.

(Id.)

She was in contact with the local Marshal’s

office, two Marshals attempted to locate her, and the Marshal’s
office issued an alert to local police.

(Id.)

The Marshals did

not attempt to locate Fisher using the GPS chip in her gun.
(Compl. 09-2730, ¶ 23.)

Fisher reported to Sanders that she was

being followed by local police officers.
13.)

(Compl. 09-2054, ¶

Sanders had posted Marshals at Fisher’s home, but at or

before 3 a.m. he instructed them to leave.

(Id. ¶ 14.)

At

approximately 6:15 a.m. on May 14, two Memphis police officers,
Taylor and Bird, approached Fisher in the driveway of her home.
(Compl. 09-2730, ¶ 25.)

The officers asked Fisher to exit her

vehicle, but she refused.

When they approached, Fisher fired

her gun, hitting Taylor in the leg.

(Id.)

Fisher was shot

several times by the officers and was fatally wounded.

(Compl.

09-2054, ¶ 15.)
The Government answers that Fisher had been employed as a
Deputy United States Marshal for 14 years, that she attended the
training seminar in Atlanta during the week preceding her death,
that she left the seminar in a government vehicle on May 13 and
returned to her home in Cordova, Tennessee, on the same day.
(U.S. Answer to Compl. 09-2054, ¶ 6; ECF No. 9.)

The Government

alleges that Fisher was observed by Memphis police officers
driving her personal vehicle recklessly on the morning of May 14
and that she was pursued to her home.
5

(Id.)

It alleges that

she would not exit her vehicle when asked and that she fired on
the officers striking one in the leg, after which the officers
returned fire and Fisher was fatally wounded.
II.

(Id.)

Standard of Review

The Government’s combined Motion to Dismiss for Lack of
Subject Matter Jurisdiction has not been timely made.

Under

Federal Rule of Civil Procedure 12(b), “a motion asserting

any

of the[] defenses” listed in Rule 12(b), including a “lack of
subject-matter jurisdiction,” must be made before pleading if a
responsive pleading is allowed.”

Fed. R. Civ. P. 12(b).

The

complaints the Government seeks to dismiss were initially the
basis of separate cases, Gregory v. United States, 09-cv-2054,
and Taylor v. United States, 09-cv-2730, before consolidation
with Gregory v. Memphis.

(See Amended Order Consolidating Cases

for Trial and Closing Cases Administratively, ECF No. 136.)
Before filing its current motion, ECF No. 160, the Government
filed answers to the two complaints.

(09-cv-2054, ECF No. 9;

09-cv-2730, ECF No. 12.)
The Government did not explicitly raise the defense of lack of
subject-matter jurisdiction in either answer.

(See Id.)

“Every

defense to a claim of relief in any pleading must be asserted in
the responsive pleading if one is required.”
12(b).

Fed. R. Civ. P.

In its answer in the 2009 Gregory case, the Government

stated only that, “[i]f the death of Mary L. Fisher is covered
6

by the Federal Employee’s Compensation Act, plaintiff’s
complaint is barred by the provisions of 5 U.S.C. § 8116(c).”
(09-cv-2054, ECF No. 9, ¶ 12.)

In its answer in the Taylor

case, the Government stated only that “[a]ll claims of negligent
supervision of Mary Fisher are barred by the discretionary
function exception to the [FTCA].”

(09-cv-2730, ECF No. 12, ¶

14.)
The defense of lack of subject-matter jurisdiction is not
waived by a failure to include it in a responsive pleading or by
an improperly made motion.

See Fed. R. Civ. P. 12(h)(1).

A

court may raise the question of subject-matter jurisdiction at
any time, and in fact “district courts are obligated to sua
sponte consider whether they have subject-matter jurisdiction.”
Spencer v. Stork, No. 12-1503, 2013 U.S. App. LEXIS 2579, at *3
(6th Cir. Feb. 4, 2013); see also Fed. R. Civ. P. 12(h)(3).
Subject matter jurisdiction is a threshold determination. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101
(1998).

When a defendant raises the issue of lack of subject-

matter jurisdiction under Rule 12(b)(1), the plaintiff has the
burden of proving jurisdiction to survive the motion to dismiss.
DXL, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004); Moir
v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269
(6th Cir. 1990).

7

Motions to dismiss for lack of subject matter jurisdiction
fall into two general categories: facial attacks and factual
attacks.
1994).

United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.

A facial attack “is a challenge to the sufficiency of

the pleading itself.”

Id.

The Court “must take the material

allegations of the petition as true and construe [them] in the
light most favorable to the nonmoving party.”

Id.

A factual

attack is a challenge to the factual existence of subject matter
jurisdiction.

“When a Rule 12(b)(1) motion attacks the factual

basis for jurisdiction, the district court must weigh the
evidence and the plaintiff has the burden of proving that the
court has jurisdiction over the subject matter.”

Golden v.

Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005).

To resolve

the dispute, courts “have wide discretion to allow affidavits,
documents, and even a limited evidentiary hearing to resolve
disputed jurisdictional facts.”

Ohio Nat’l Life Ins. Co. v.

United States, 922 F.2d 320, 325 (6th Cir. 1990).

No

presumption of truthfulness applies to the factual allegations,
and the court is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.

Ritchie, 15

F.3d at 598; Moir, 895 F.2d at 269.
III. Analysis
A. Facial Attack on Gregory and Taylor’s Complaints

8

The Government states that its Motion is a facial attack only.
Gregory’s Response argues that the Government’s Motion is
actually a motion to dismiss for failure to state a claim under
Rule 12(b)(6).

He argues that he has pled sufficient facts to

allege the Court’s jurisdiction and that the Government’s
contention that its actions are exempt from FTCA coverage is
actually an argument that there is no set of facts under which
relief can be granted.

(Pl.’s Resp., n.3.)

The Government’s

motion is more accurately understood as a factual attack under
Rule 12(b)(1), arguing that the Court does not have jurisdiction
to hear Gregory’s claims because of the FTCA exception.
The Government argues that both Plaintiffs fail to allege the
basis of subject-matter jurisdiction in their complaints, and
therefore that the complaints should be dismissed.

The

Government’s argument is not well-taken. When a 12(b)(1) motion
“attacks the face of a complaint, ‘plaintiff's burden to prove
federal question subject matter jurisdiction is not onerous.’”
Strange v. United States, No. 96-1281, 1997 U.S. App. LEXIS
13079, at * 5-6 (6th Cir. May 30, 1997) (quoting Musson
Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248
(6th Cir. 1996)). Plaintiff must “show only that the complaint
alleges a claim under federal law, and that the ‘claim is
substantial.’” Id. “A federal claim is substantial ‘unless prior
decisions inescapably render [it] frivolous.’” Id.
9

A

“‘plaintiff can survive [a 12(b)(1)] motion by showing any
arguable basis in law for the claim made.’” Id.
Both Plaintiffs allege that the basis for the Court’s
jurisdiction is a claim arising under the FTCA and that the
Court has federal question jurisdiction under 28 U.S.C. §
1346(b).

(Compl. 09-cv-2054; Compl. 09-cv-2730.)

Both allege

that the United States is the proper defendant as the employer
at all relevant times of the decedent and her supervisors.
(Id.)

Both allege that they suffered “injury or death caused by

the negligent or wrongful act or omission of an[] employee of
the Government while acting within the scope of his office,” and
allege the circumstances establishing that negligence.
U.S.C. § 2675. (Id.)

28

Both allege that they have exhausted the

available administrative remedies as required by the statute and
that their complaints are made in compliance with the various
requirements of the FTCA statute of limitations.
2054; Compl. 09-cv-2730.)
frivolous.

(Compl. 09-cv-

No prior decisions render the claims

The body of FTCA precedent is extensive and, because

of the nature of the exceptions, the question of jurisdiction is
often highly fact dependent.

No prior decision in this Circuit

is so factually indistinguishable that there is no arguable
legal basis for these claims to be brought.
Accepting the Plaintiffs’ facts as true and interpreting them
in the manner most favorable to the Plaintiffs as required for a
10

facial attack under Rule 12(b)(1), both complaints are
sufficient to allege subject-matter jurisdiction.
B. Factual Existence of Subject-Matter Jurisdiction Over
Gregory’s Claims
Both Plaintiffs’ complaints are facially sufficient to
establish subject-matter jurisdiction.

Although the Government

asserts that it is making a facial challenge only, the Court has
an independent obligation to determine the factual existence of
subject-matter jurisdiction.

The Government raises affirmative

objections to the Plaintiffs’ allegation of jurisdiction and
submits extrinsic factual information that it asks the Court to
weigh in determining whether it may hear the Plaintiffs’ claims.
That is a factual challenge.

When a court considers a factual

challenge, it weighs the evidence provided by both parties and
gives no deference to the plaintiff’s alleged facts.

The burden

is on the plaintiff to establish the existence of subject-matter
jurisdiction.
The Government argues that the Court lacks jurisdiction to
hear Gregory’s FTCA claim because the discretionary-function
exception applies to the Marshal’s acts that Gregory alleges
were the proximate cause of Fisher’s death.

The Government also

argues that jurisdiction is barred on the alternative ground
that there is a “substantial question” about coverage for

11

Fisher’s death under the exclusive remedy of the Federal
Employee’s Compensation Act (“FECA”), 5 U.S.C. §§ 8101, et seq.
1. The Discretionary-Function Exception
The limited waiver of sovereign immunity in the FTCA is
subject to a number of exceptions.

See 28 U.S.C. § 2680.

The

Government argues that the actions the Marshals took on May 13
and 14, 2006, are excluded from judicial review by the
discretionary-function exception to the FTCA.
2680(a).
U.S.C.

28 U.S.C. §

Section 2680(a) states that “[t]he provisions of [28

§§ 2671, et seq.]...shall 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 employee of the government, whether or not the
discretion involved be abused.”

Id.

To determine “whether allegedly tortious conduct falls
within the discretionary-function exception, [the Sixth Circuit]
applies the Supreme Court’s two-pronged Gaubert test.”
v. United States, 670 F.3d 686, 693 (6th Cir. 2011).

Milligan

The first

prong requires the Court to determine “‘whether the challenged
actions were discretionary, or whether they were instead
controlled by mandatory statutes or regulations.’”
Gaubert, 499 U.S. 315, 328 (1991)).

Id. (quoting

Whether a requirement is

mandatory is determined by whether the actor “had any element of
judgment or choice in taking his course of action.”
12

Id.

(internal quotation omitted).

A function is not discretionary

if “‘a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow, because
the employee ha[s] no rightful option but to adhere to the
directive.’”

Id. (quoting Rosebush v. United States, 119 F.3d

438, 441 (6th Cir. 1997).

If the court determines at the first

prong that the conduct is discretionary, it reaches the second
prong and “inquires ‘whether that judgment is of the kind that
the discretionary function exception was designed to shield.’”
Id. (quoting Gaubert, 499 U.S. at 322-23).
The “crucial first step in deciding whether the conduct was
discretionary ‘is to determine exactly what conduct is at issue’
and identify which specific policies or regulations the
plaintiff alleges were violated.”
F.3d at 441).

Id. (quoting Rosebush, 119

The burden is on the plaintiff to establish

subject-matter jurisdiction when a court examines the factual
existence of jurisdiction.

Neither Gregory’s complaint nor his

response to the Government’s motion identifies a statute,
regulation, or policy that the Marshals were required to comply
with or that their conduct violated.

Gregory was entitled to

supplement the record, but he chose not to do so.

See Hatcher

v. United States, No. 12-5489, 2013 U.S. App. LEXIS 1787, at *4

13

(6th Cir. Jan. 24, 2013).1

Gregory argues that he asked the

Government to provide him with copies of all relevant
regulations and policies, and because it has not done so the
Court should assume that at least one such policy exists and
premise its jurisdiction on that assumption.
ECF No. 174.)

(Gregory’s Resp.,

Gregory’s argument is not a sound basis to extend

the Court’s authority where, as here, he could have subpoenaed
documents or moved the Court to allow limited discovery.
Hatcher, 2013 U.S. App. LEXIS 1787, at *4.

See

Applying the first

prong of the Gaubert test and weighing Gregory’s lack of
evidence against the Government’s Declaration that the General
Counsel of the USMS does not know of any statutes, regulations,
or agency directives requiring a particular course of action in
the circumstances of this case, the Court finds that the
Marshals were performing a discretionary function.

(Auerbach

Declaration, ECF No. 161-1.)
Because there was an element of judgment in the actions of
the Marshals, the Court must decide whether the decisions were
of the kind that the discretionary-function exception was
designed to shield under the second prong of the Gaubert test.
The exception was designed to “‘prevent judicial second-guessing
of legislative and administrative decisions grounded in social,
1

Gregory’s response includes an attached excerpt from Sanders’ Deposition.
The excerpt relates exclusively to Sanders’ knowledge that Fisher was
experiencing unusual physical and mental symptoms on May 13 and is not
germane to this analysis. (See ECF No. 174-1.)

14

economic, and political policy through the medium of tort.’”
Milligan, 670 F.3d at 693 (quoting Gaubert, 119 U.S. at 323).
The discretionary-function exception’s “scope extends beyond
high-level policymakers, and includes government employees at
any rank exercising discretion.”
F.3d 935, 940 (6th Cir. 2012).

Kohl v. United States, 699

Even when the government action

in question is “on the day-to-day operational level, and
implements broader governmental objectives,” if that action
involves judgment that is “‘susceptible to policy analysis’ then
it falls within the discretionary-function exception.”

Id.

(quoting Gaubert, 499 U.S. at 325).
The exact contours of the conduct at issue are particularly
important for the second prong of the analysis.
the conduct narrowly.

Gregory frames

He argues that the Marshals acted

negligently by failing to disarm Fisher, a trained agent who was
allegedly obviously mentally and physically ill, by failing to
provide her with medical attention, by failing to stop her from
driving to Memphis, by failing to intercept her during her trip
to Memphis, and by failing to post a sufficient number of
Marshals at her home for a sufficient time to take her into
custody.

Gregory argues that decisions not to act to prevent

reasonably foreseeable harm to an employee are not the kinds of
decisions that the discretionary-function exception seeks to
protect.
15

Gregory’s characterization “begs the question” because it
essentially asks whether the Marshals had discretion to deal
with Fisher’s medical condition in an unsafe and negligent
manner.

Kohl, 699 F.3d at 942 (quoting Autery v. United States,

992 F.2d 1523, 1528 (11th Cir. 1993)).

The Sixth Circuit has

consistently rejected plaintiffs’ attempts to characterize the
actions of the Government narrowly because to do so “‘collapses
the discretionary function inquiry into a question of whether
the [government] was negligent’” when negligence is irrelevant
to the inquiry at the point of determining subject-matter
jurisdiction.

Id. (quoting Rosebush, 119 F.3d at 442

(alteration in original)); see also Bell v. United States, No.
99-5563, 2000 U.S. App. LEXIS 28064, at *11 (6th Cir. Nov. 6,
2000) (finding that the conduct at issue was the Postmaster’s
decision to leave the lobby of the post office open to the
public after hours and not a decision to maintain the lobby in
an unsafe manner).
The Government’s characterization of the Marshals’ choices
as decisions about how to supervise personnel and how to
distribute and use resources is more appropriate.

These are

areas of administrative agency discretion that are susceptible
to policy and economic analysis and that the discretionaryfunction exception is designed to protect.

See, e.g., Burkhart

v. Washington Metro. Area Trans. Auth., 112 F.3d 1207, 1217
16

(D.C. Cir. 1997) (“The hiring, training, and supervision choices
that [a government entity] faces are choices ‘susceptible to
policy judgment’ ....[S]upervision decisions involve a complex
balancing of budgetary considerations, employee privacy rights,
and the need to ensure public safety.”)

The connection with

policy and decision-making here establishes that the
Government’s conduct falls within the discretionary-function
exception.

The requirement of a “policy nexus is an objective

not a subjective one,” the inquiry is “whether the challenged
actions are ‘susceptible to policy analysis,’ not whether they
were the result of policy analysis.”

Rosebush, 119 F.3d at 444

(quoting Gaubert, 499 U.S. at 324-25).
2. FECA
The Court need not decide the Government’s alternate ground
for denying subject-matter jurisdiction.

When a government

employee’s injury or death is covered by FECA, the remedy is
“exclusive and instead of all other liability of the United
States.”

5 U.S.C. § 8116(c).

The “action of the Secretary [of

Labor] or his designee in allowing or denying a payment under
[FECA] is – (1) final and conclusive for all purposes and with
respect to all questions of law and fact; and (2) not subject to
review by another official of the United States or a court by
mandamus or otherwise.”

5 U.S.C § 8128.

If an injury is

covered by FECA, the Court does not have jurisdiction to hear
17

the case.

If the Secretary of Labor reaches a final decision,

the Court has no authority to challenge or modify it.

The

Government argues that there is a substantial question about
whether Gregory’s claim is covered by FECA and that the Court is
without jurisdiction until the Secretary of Labor makes a final
decision on coverage.

Gregory contends that his claim is

clearly not covered by FECA and that the Court has jurisdiction
to hear his FTCA claim.
If the Court agrees that there is a substantial question of
coverage, the appropriate action is to “stay proceedings pending
the final decision of the Secretary.”

McDaniel v. United

States, 970 F.2d 194, 198 (6th Cir. 1992).

If the Court agrees

that there is no substantial question, Gregory’s FTCA claim goes
forward.

Because the Court has already determined that it has

no jurisdiction to hear Gregory’s FTCA claim, the case must be
dismissed regardless of the applicability of FECA.
The Court does not have subject-matter jurisdiction to hear
Gregory’s FTCA claim against the Government.

His complaint is

DISMISSED.
C. Factual Existence of Subject-Matter Jurisdiction Over
Taylor’s Claims
1.The Discretionary-Function Exception
Plaintiff Taylor submits several exhibits to support his
contention that the Marshals’ actions were mandated by
18

directives.

His attachments include a copy of the USMS’s

Employee Assistance Program (“EAP”) guidelines and excerpts from
the depositions of Taylor’s law enforcement expert David Grossi
and Marshals John Clark, Lawrence Flagg, Scott Sanders, and
Thomas Boock.

(ECF No. 182-1; 182-2; 182-3; 182-4; 182-5; 182-

6.)
The depositions of Clark, Flagg, Sanders, and Boock are not
germane.

The exerpts deal almost exclusively with the Marshals’

alleged negligence during the events surrounding Fisher’s death.
Whether the Marshals behaved negligently under the circumstances
does not address whether they were operating under mandatory
directives or within their discretion.

Clark’s deposition is

the only one to mention the EAP or any other regulation. To the
extent it does, it seems to support the Government’s argument
that decisions made under the EAP involve the exercise of
discretion.

(ECF No. 182-3.)

The excerpt from Grossi’s deposition speaks at length about
the EAP and conveys Grossi’s opinion that the EAP is a directive
and that its procedures are mandatory.
persuasive.

Grossi’s opinion is not

First, although Taylor has submitted Grossi as a

“law enforcement expert”, the Court has not accepted him as an
expert, and his testimony has no more weight than lay opinion.
Second, and more important, Grossi’s opinion about whether the
EAP is mandatory does not assist the Court.
19

The EAP itself is

before the Court. If it imposes a mandatory course of action on
the Marshals, it must do so on its face.

Grossi’s opinion is

not a substitute for what the language of the EAP requires.

The

Court itself must decide the legal significance of the
guidelines.

See, e.g., Montez v. United States, 359 F.3d 392,

395-97 (6th Cir. 2004).
To the extent Taylor’s argument relies on the EAP’s
procedures for Critical Incident Stress Situations (“CISS”),
those procedures are inapplicable in this case.

The parties

disagree about whether Fisher’s medical and emotional symptoms
constitute “any event an employee experiences on or off the job
that is outside the realm of normal human experience and that
could produce significant emotional, behavioral, or physical
reactions.”

(EAP § D(9), ECF No. 182-1.)

Based on the

definitions in EAP §§ G(2)-G(5), Fisher’s condition was not
within the “[c]ategor[y] of traumatic incidents” that the CISS
procedures are intended to cover.

(EAP § D(9)(d).)

Those

traumatic incidents include, for example, “any incident
involving an employee fatality; shoot-outs; a shooting; suicide
or attempted suicide of a fellow worker, prisoner, witness,
etc.; an explosion; a hostage situation; a plane crash; working
with dead bodies and/or body parts; an employee missing or
presumed dead; and violent or traumatic injury to an employee.”
(EAP § G(2).)

Although the definitions are non-exclusive and
20

include some incidents that are arguably less severe than those
listed, the procedures apply only to serious events that are
inflicted on a Marshal by something external to herself.
Fisher’s alleged illness does not qualify as a CISS event, and
the CISS procedures do not apply.
Taylor cites two other sections of the EAP that he argues
imposed a mandatory duty on the Marshals to take a particular
course of action.

Taylor contends that EAP § D(2) is a

mandatory directive.

Section D(2) provides that, “after

becoming aware of a personal or family problem that is affecting
an employee’s conduct or work performance, a manager should make
the necessary referral to the EAP Administrator.”
Resp.)(emphasis added by Plaintiff).

(Pl.’s

Taylor also argues that

EAP § D(2)(c) is a mandatory directive.

Section D(2)(c)

provides that, “[i]f an employee is unable to perform law
enforcement duties, he or she should be relieved of any weapons
and credentials and, when appropriate, assigned administrative
duties.”

(Id.) (emphasis added by Plaintiff).

The Government

argues that “should” is a permissive term and that these
procedures are not mandatory.
It is well established that the use of the word “may” in a
statute or regulation generally renders that directive
permissive, while the use of explicitly mandatory words such as
“shall,” “will,” or “must” generally renders that directive
21

compulsory.

See, e.g., Montez, 359 F.3d at 397 (“The use of the

word ‘may’ in these regulations, rather than ‘shall,’
demonstrates that their implementation is left to the discretion
of BOP officials.”).

The Sixth Circuit has not directly

addressed the preferred interpretation of the word “should,” but
as the Government points out, the Ninth Circuit has on several
occasions.

In Sabow v. United States, the Ninth Circuit found

that the directives cited by the plaintiffs did not prescribe a
course of action for purposes of the discretionary-function
exception because the “provisions cited by the [plaintiffs] are
cast in suggestive (‘should’) rather than mandatory (‘must’)
terms.”

93 F.3d 1445, at *15 (9th Cir. 1996).

In Weissich v.

United States, the Ninth Circuit found that, for purposes of the
discretionary-function exception, guidelines that provided that
“the circumstances of probationers ‘should’ be reviewed
periodically to determine if they pose a reasonably foreseeable
danger,” contained “language [that was] suggestive, not
mandatory.”

4 F.3d 810, 814 (9th Cir. 1993).

Although the parties focus narrowly on the words used in
the EAP, there is no “simple mechanical test for determining
whether a provision should be given mandatory effect,” and when
“determining whether...provisions are mandatory or
discretionary,” a court should look more broadly at the
“language, legislative history, and purpose” of the provisions.
22

United States v. Marsten Apts., 175 F.R.D. 265, 268-69 (E.D.
Mich. 1997) (citations omitted).
Reading the EAP as a whole it is clear that the
regulation’s intent is to provide procedures that may be used at
the discretion of supervisors.

It is apparent in a number of

places that the supervisor has the discretion to act or not to
act.

EAP § D(2)(a), a subsection of one of the sections on

which Taylor seeks to rely, provides that “[a] manager may refer
an employee to the EAP as a result of documented unsatisfactory
work performance or deteriorating work performance and/or
behavior or conduct that indicates the presence of a personal
problem.”

(emphasis added).

EAP § D(2)(b) provides steps to

follow “[w]hen a manager suspects a problem,” and § D(2) states
that the EAP policy “should be used in conjunction with
management’s right to take disciplinary or adverse actions based
upon an employee’s job performance.”

Most importantly, the EAP

does not include any directives that define or mandate when an
employee is “unable to perform law enforcement duties.”
Although the EAP states that a person in this condition “should
be relieved of any weapons and credentials,” it is clear that
the determination of whether a Marshal is unable to perform her
law enforcement functions is in the discretion of her
supervisors.

23

Given the language of the EAP as a whole and supervisors’
discretion in deciding when to invoke its procedures, the EAP is
not a mandatory directive that imposes a required course of
action on the Marshals.

Whether the Marshals were negligent in

choosing not to invoke the EAP procedures is not at issue
because the discretionary-function exception applies “whether or
not the discretion involved be abused.”

28 U.S.C. § 2680(a).

Considering the second prong of the Gaubert analysis, the
decisions made by the Marshals are of the kind that the
discretionary-function exception is intended to protect.

“‘When

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.’”

Montez, 359 F.3d at 397 (quoting Gaubert, 499

U.S. at 324).

Taylor has not overcome that presumption.

Taylor’s narrow characterization of the Marshals’ decisions
collapses the inquiry into one of negligence.

Like Gregory,

Taylor argues that the Marshals acted negligently by failing to
disarm Fisher, a trained agent who was allegedly obviously
mentally and physically ill, by failing to provide her with
medical attention, by failing to stop her from driving to
Memphis, by failing to intercept her during her trip to Memphis,

24

and by failing to post a sufficient number of Marshals at her
home for a sufficient time to take her into custody.
The Government’s characterization of these actions as
decisions about supervision of personnel and allocation of
resources is more appropriate.

These are the kinds of decisions

that the discretionary-function exception is designed to
protect.
Taylor also alleges that the Government’s decision not to
adequately warn local law enforcement of the danger Fisher posed
is not the type of decision the exception is intended to
protect.

First, the Marshals did issue an alert to local

police.

The adequacy of that alert is a question of fact that

need not been decided.

Second, characterizing the Government’s

decision more broadly, as the Court is required to do, it is
settled law in the Sixth Circuit that “the decision whether to
warn of potential danger is a protected discretionary function.”
Rosebush, 119 F.3d at 443.

Taylor also argues that the

Marshals’ decision not to prevent a dangerous situation by
locating Fisher using the GPS chip in her gun is not the kind of
decision that is intended to be protected.

This argument also

fails because, characterizing the Government’s decision more
broadly, it is settled law in the Sixth Circuit that
“[d]ecisions concerning the proper response to hazards are

25

protected from tort liability by the discretionary function
exception.”

Id.

2. The Policeman’s Rule
The Government argues in the alternative that jurisdiction
is barred by the Tennessee Policeman’s Rule.

Under 28 U.S.C. §

1346(b)(1), district courts “shall have exclusive jurisdiction
of civil actions on claims against the United States...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.”

The parties

agree that the law of the State of Tennessee applies to Taylor’s
claim.

Taylor does not contest the Government’s assertion that

the injuries he received arise out of risks particular to his
profession as a police officer.
The Government contends that, under the Policeman’s Rule,
which “precludes firefighters and police officers from
recovering damages for injuries arising out of risks peculiar to
their employment,” a private person would not be liable to a
policeman for injuries resulting from the private person’s
negligent actions.

Jamison v. Ulrich, 206 S.W.3d 419, 422

(Tenn. Ct. App. 2006).

Taylor argues that the Rule is intended

to apply only when an individual calls for help because the
underlying policy of the Rule is to encourage citizens to rely
on local law enforcement without fear that tort liability could
26

result.

(Taylor’s Resp.)

He contends that no Tennessee case

has applied the Rule where a policeman or firefighter was not
summoned to the scene by the person from whom he seeks to
recover.

(Id.)

Taylor also argues, based on Bridges v. City of

Memphis, 952 S.W.2d 841 (Tenn. Ct. App. 1997), that, because the
Rule does not preclude suits by public safety officers against
municipalities and their component entities, it would be
contrary to the purpose of the Rule to preclude suits against
the United States.

(Id.)

Taylor’s arguments are not well taken.

His attempt to

interpret the Tennessee courts’ stated policy justification for
maintaining the Rule as a limitation on its application is
unwarranted.

The “existence or nonexistence of a duty owed to

the plaintiff by the defendant is entirely a question of law for
the court.”

Jamison, 206 S.W.3d at 423.

The law as stated by

the Tennessee Supreme Court is that policemen are precluded
“from recovering damages for injuries arising out of risks
peculiar to their employment,” because a citizen owes no duty of
reasonable care.
1995).

Carson v. Headrick, 900 S.W.2d 685, 687 (Tenn.

Taylor’s alleged factual distinction is not persuasive.

The only recognized exception to the Rule “allow[s] recovery for
a policeman or firefighter who is injured by the intentional,
malicious, or reckless acts of a citizen.”

Jamison, 206 S.W.3d

at 425; see also Carson, 900 S.W.2d at 691.

Taylor does not

27

allege that the Marshals’ actions were anything other than
negligent.
Taylor’s argument based on Bridges is also unavailing.
Section 1346(b)(1) explicitly states that the liability of the
United States is that of a private person under the law of the
place where the act or omission occurred.

The government of the

United States cannot be equated to the government of the City of
Memphis.

Other governments, whether state or local, are not

comparable.
The court in Bridges reaffirmed that “police officers and
firefighters in Tennessee are not permitted to sue members of
the public for injuries that arise out of risks peculiar to
their employment” while holding that the City of Memphis was not
immune on the same grounds for its negligence.
48.

952 S.W.2d 847-

Because a private person could not be liable to Taylor for

the injuries he sustained while in the line of duty as a police
officer, the Government cannot be liable for his injuries.
Because the Government cannot be liable for Taylor’s injuries,
the Court does not have jurisdiction to hear his claim.
The Court does not have subject-matter jurisdiction over
Taylor’s FTCA claim against the Government.
DISMISSED.
IV.

Conclusion

28

His complaint is

For the foregoing reasons, the Government’s Motion to Dismiss
for Lack of Subject-Matter Jurisdiction is GRANTED.
complaint against the Government is DISMISSED.

Gregory’s

Taylor’s

complaint against the Government is DISMISSED.

So ordered this 26th day of March, 2013.

s/ Samuel H. Mays, Jr.____
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

29