United States District Court, District of Columbia
A. HOWELL CHIEF JUDGE
plaintiff, Mary Lou Walen, brought this suit under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b), 2674 et seq., against the
United States, the United States Department of the Interior
(“DOI”), the National Park Service (the
“NPS”), the National Capitol Region of the
National Park Service (collectively, “the federal
defendants”), and the District of Columbia to recover
for serious injuries she sustained when a tree fell on her as
she walked along Connecticut Avenue, NW, a central
thoroughfare in Washington, D.C. She alleges that the federal
defendants and the District were negligent in inspecting and
maintaining the trees bordering Connecticut Avenue, and in
keeping records about those activities. Pending before the
Court is the government's motion to dismiss for lack of
subject matter jurisdiction, on grounds that the claims
asserted are barred by the discretionary function exception
to the FTCA's waiver of sovereign immunity.
Gov't's Mot. to Dismiss (“Gov't's
Mot.”), ECF No. 14. As explained below, the United States
is not immune from suit on the plaintiff's claim, while
the federal agencies are not the proper defendants. Thus, the
government's motion is granted, in part, as to the
federal agencies, but denied as to the United States.
October 29, 2012, at approximately 3:15 p.m., the plaintiff
“was walking along . . . the west side of Connecticut
Avenue [Northwest] in the District of Columbia.” Compl.
¶ 7, ECF No. 1. As she crossed the “Klingle
Bridge, ” officially named the “Connecticut
Avenue Bridge, ” which crosses over the Klingle Valley
in Rock Creek Park, “suddenly and without warning, a
tree limb struck [her], crushing her and causing her serious,
severe and permanent injuries.” Compl. ¶ 7,
As a result of the incident, the plaintiff suffered
“twenty-three bone fractures, has endured multiple
surgeries as well as significant rehabilitation . . . [and]
has incurred hundreds of thousands of dollars of medical
bills.” Pl.'s Opp'n Gov't's Mot.
Dismiss (“Pl.'s Opp'n”) at 1, ECF No. 15.
the incident, the plaintiff filed an administrative claim
with DOI and, after no action was taken, deemed the claim
denied and filed this suit. Compl. ¶ 12; Pl.'s
Opp'n at 2. In her complaint, the plaintiff alleges that
the defendants “exercised control over the trees in
Rock Creek Park, . . . including specifically the trees along
both sides” of the Connecticut Avenue Bridge, Compl.
¶ 10, and “owed a continuing duty of care . . . to
inspect and maintain its trees and parks in a reasonably safe
condition, with due regard for dangerous conditions that pose
a risk to persons lawfully traveling” on the bridge
“and/or Connecticut Avenue, NW, ” id.
¶ 11. According to the plaintiff, the federal
defendants “fail[ed] to exercise ordinary care in its
inspection and maintenance of Rock Creek Park and its trees,
” “fail[ed] to keep adequate records of
inspection and maintenance protocols for trees in [their]
control in Rock Creek Park, ” and “fail[ed] to
remove any and all trees, limbs, branches and/or debris that
posed a threat of harm or bodily injury in a timely
manner.” Compl. ¶¶ 20 (Count I against United
States), 27 (Count II against DOI), 34 (Count III against
NPS), 41 (Count IV against National Capital Region of NPS),
and 48 (Count V against DC). After the plaintiff filed her
complaint, the government filed the instant motion to
dismiss, which is ripe for review.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(1), the plaintiff bears the burden of
demonstrating the court's subject-matter jurisdiction
over the claims asserted. Arpaio v. Obama, 797 F.3d
11, 19 (D.C. Cir. 2015). “‘Federal courts are
courts of limited jurisdiction, ' possessing ‘only
that power authorized by Constitution and
statute.'” Gunn v. Minton, 133 S.Ct. 1059,
1064 (2013) (quoting Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994)). Indeed, federal
courts are “forbidden . . . from acting beyond our
authority, ” NetworkIP, LLC v. FCC, 548 F.3d
116, 120 (D.C. Cir. 2008), and, therefore, have “an
affirmative obligation ‘to consider whether the
constitutional and statutory authority exist for us to hear
each dispute, '” James Madison Ltd. ex rel.
Hecht v. Ludwig, 82 F.3d 1085, 1092 (D.C. Cir. 1996)
(quoting Herbert v. Nat'l Acad. of Scis., 974
F.2d 192, 196 (D.C. Cir. 1992)). Absent subject matter
jurisdiction over a case, the court must dismiss it.
Arbaugh v. Y & H Corp., 546 U.S. 500, 506-07
(2006); Fed.R.Civ.P. 12(h)(3) (requiring dismissal of action
“at any time” the court determines it lacks
subject matter jurisdiction).
considering a motion to dismiss under Rule 12(b)(1), the
court must accept as true all uncontroverted material factual
allegations contained in the complaint and
“‘construe the complaint liberally, granting
plaintiff the benefit of all inferences that can be derived
from the facts alleged' and upon such facts determine
jurisdictional questions.” Am. Nat'l Ins. Co.
v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting
Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)). The court need not accept inferences drawn by the
plaintiff, however, if those inferences are unsupported by
facts alleged in the complaint or amount merely to legal
conclusions. See Browning v. Clinton, 292 F.3d 235,
242 (D.C. Cir. 2002).
in evaluating subject matter jurisdiction, the court
“may consider materials outside the pleadings.”
Am. Freedom Law Ctr. v. Obama, 821 F.3d 44, 49 (D.C.
Cir. 2016); Settles v. U.S. Parole Comm'n, 429
F.3d 1098, 1107 (D.C. Cir. 2005); Herbert, 974 F.2d
at 197 (in disposing of motion to dismiss for lack of subject
matter jurisdiction, “where necessary, the court may
consider the complaint supplemented by undisputed facts
evidenced in the record, or the complaint supplemented by
undisputed facts plus the court's resolution of disputed
plaintiff claims that the federal defendants were negligent
in two respects, first in “failing to exercise ordinary
care in its inspection and maintenance of Rock Creek Park and
its trees” and second, in “failing to keep
adequate records of inspection and maintenance protocols for
trees in its control in Rock Creek Park.” Compl. ¶
20. While the FTCA waives the United States' sovereign
immunity for certain torts, the government argues that the
plaintiff's claims against the United States are
nonetheless barred by the discretionary function exception to
the FTCA because decisions related to tree care in Rock Creek
Park, even where trees rooted in the Park grow sufficiently
tall for the tree-tops to line a bridge along Connecticut
Avenue's busy thoroughfare, are left to the discretion of
the Park Superintendent and involve application of
“management ideals” and “balancing
of” various policy considerations. Gov't's Mem.
Supp. Mot. Dismiss (“Gov't's Mem.”) at
5-9, ECF No. 14; Gov't's Reply Supp. Mot. Dismiss
(“Gov't's Reply”) at 9-11, ECF No. 19.
The scope of the discretionary function exception relied upon
by the government is addressed below, followed by analysis of
whether this exception applies to bar the plaintiff's
claim in Count I against the United States.
THE FTCA'S DISCRETIONARY FUNCTION EXCEPTION
FTCA provides a limited waiver of sovereign immunity that
“allows plaintiffs to seek damages from the United
States for certain torts committed by federal employees,
” but also sets out statutory exceptions to this waiver
applicable “to certain categories of claims.”
Simmons v. Himmelreich, 136 S.Ct. 1843, 1843-44
(2016). “If one of those exceptions applies, the court
lacks subject-matter jurisdiction to hear the plaintiff's
claims.” Loumiet v. United States, 828 F.3d
935, 941 (D.C. Cir. 2016) (internal citation omitted);
Sledge v. Fed. Bureau Prisons, 2013 U.S. App. LEXIS
25940 (D.C. Cir. Jan. 15, 2013) (noting that the D.C. Circuit
“treat[s] the exception as jurisdictional.”).
recounted by the Supreme Court, the legislative history of
the FTCA indicates that this law “was the offspring of
a feeling that the Government should assume the obligation to
pay damages for the misfeasance of employees in carrying out
its work, ” and to simplify the alternative method of
“the private bill device, ” which spawned
thousands of such bills prior to the FTCA's enactment.
Dalehite v. United States, 346 U.S. 15, 24-25
(1953); see also American Stevedores, Inc. v.
Porello, 330 U.S. 446, 453 (1947) (observing that
passage of FTCA “attests to the growing feeling of
Congress that the United States should put aside its
sovereign armor in cases where federal employees have
tortiously caused personal injury or property
damage.”). “Uppermost in the collective mind of
Congress were the ordinary common-law torts.”
Dalehite, at 28. At the same time, Congress wished to
avoid authorizing tort lawsuits for money damages against the
United States arising from “legally authorized
activity” as a means to test “‘the
constitutionality of legislation, the legality of
regulations, or the propriety of a discretionary
administrative act.'” Id. at 27 (quoting
Assistant Attorney General appearing before House Committee
on the Judiciary, 77th Cong., 2d Sess., on H. R. 5373 and H.
R. 6463, pp. 25, 33); see also id. at 27-28
(“The legislative history indicates that while Congress
desired to waive the Government's immunity from actions
for injuries to person and property occasioned by the
tortious conduct of its agents acting within their scope of
business, it was not contemplated that the Government should
be subject to liability arising from acts of a governmental
nature or function.”).
end, the FTCA included the discretionary function exception,
which excludes from the sovereign immunity waiver 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.” 28 U.S.C. § 2680(a). Thus, the
discretionary function exception “marks the boundary
between Congress' willingness to impose tort liability
upon the United States and its desire to protect certain
governmental activities from exposure to suit by private
individuals, ” United States v. Varig
Airlines, 467 U.S. 797, 808 (1984), thereby serving to
“‘prevent judicial second-guessing of legislative
and administrative decisions grounded in social, economic,
and political policy through the medium of an action in tort,
'” Loumiet, 828 F.3d at 941 (quoting
Varig Airlines, 467 U.S. at 814).
the FTCA was passed in 1946, the Supreme Court has
articulated and refined a two-part test to determine whether
a claim falls within the discretionary function exception.
See United States v. Gaubert, 499 U.S. 315 (1991);
Berkovitz v. United States, 486 U.S. 531 (1988);
Varig Airlines, 467 U.S. at 797. Under this
well-established framework for determining the applicability
of the discretionary function exception, a court asks, first,
whether the challenged actions “are discretionary in
nature” and “involve an element of judgment or
choice, ” Gaubert, 499 U.S. at 322 (quoting
Berkovitz, 486 U.S. at 536; citing Dalehite
346 U.S. at 34); and, if so, second, “whether that
[conduct] is of the kind that the discretionary function
exception was designed to shield, ” Gaubert,
499 U.S. at 322-23 (quoting Berkovitz, 486 U.S. at
536; citing Varig Airlines, 467 U.S. at 813);
see also Loumiet, 828 F.3d at 942 (“[I]f the
conduct does involve some element of judgment or choice, we
must ask . . . whether the actions or decisions ‘were
within the range of choice accorded by federal policy and law
and were the results of policy determinations'”)
(quoting Berkovitz, 486 U.S. at 538); Loughlin
v. United States, 393 F.3d 155, 163 (D.C. Cir. 2004)
(same); Cope v. Scott, 45 F.3d 445, 448 (D.C. Cir.
respect to the first prong of the test, challenged conduct is
not discretionary if a “federal statute, regulation, or
policy specifically prescribes a course of action for an
employee to follow.” Berkovitz, 486 U.S. at
536. In that instance, “the employee has no rightful
option but to adhere to the directive, ” barring any
claim of an exercise of discretion. Id..
Consequently, “there will be no shelter from liability
because there is no room for choice and the action will be
contrary to policy.” Banneker Ventures, LLC v.
Graham, 798 F.3d 1119, 1143 (D.C. Cir. 2015) (citing
Gaubert, 499 U.S. at 324); see also
Loumiet, 828 F.3d at 941-42 (noting that discretionary
function exception “does not apply to a claim that an
agency failed to “perform its clear duty” or to
“act in accord with a specific mandatory
directive” (quoting Berkovitz, 486 U.S. at
545)); Loughlin, 393 F.3d at 163 (instructing that
if “a binding directive exists, then the employee has
no rightful option but to adhere” (internal quotations
D.C. Circuit has described a “discretionary”
function shielded by sovereign immunity as “involv[ing]
judgment, planning, or policy decisions, ” as
distinguished from “ministerial functions, ”
which are “not discretionary” and
“involve enforcement or administration of a mandatory
duty at the operational level, even if professional expert
evaluation is required.'" KiSKA Constr. Corp.,
U.S.A. v. Wash. Metro. Area Transit Auth., 321 F.3d
1151, 1159, n.9 (D.C. Cir. 2003) (evaluating tort liability
of quasi-governmental entity using “two-part test
culled from the FTCA's ‘discretionary function'
jurisprudence”) (quoting Beatty v. Washington
Metropolitan Area Transit Authority, 860 F.2d 1117, 1127
(D.C. Cir. 1988) (quoting Jackson v. Kelly, 557 F.2d
735, 737-38 (10th Cir. 1977)); see also Beebe v.
Washington Metro. Area Transit ...