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Walen v. United States

United States District Court, District of Columbia

March 31, 2017

MARY LOU WALEN, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.



         The 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.[1] 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.


         On 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, 9.[2] 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.

         After 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.[3]


         To 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).

         When 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).

         Moreover, 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 facts.”).


         The 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.[4]


         The 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.”).

         As 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.[5] 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.”).

         To this 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).

         Since 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. 1995) (same).

         With 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 omitted)).

         The 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 ...

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