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Fisher v. United States

United States District Court, E.D. Louisiana

August 31, 2019

AMANDA FISHER, ET AL.
v.
UNITED STATES OF AMERICA, ET AL.

         SECTION M (2)

          ORDER & REASONS

          BARRY W. ASHE UNITED STATES DISTRICT JUDGE.

         Before the Court is the motion of the United States of America (“the USA”) to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, [1] to which plaintiffs Amanda and Christopher Fisher (“the Fishers”) respond in opposition, [2] and in further support of which the USA replies.[3] Having considered the applicable law and the parties' memoranda, the Court issues this Order & Reasons granting the motion because the discretionary function exception of the Federal Tort Claims Act (“FTCA”) applies, thus the USA has not waived sovereign immunity, and this Court lacks subject-matter jurisdiction over the action.

         I. BACKGROUND

         This case involves a personal injury. On March 18 2017, the Fishers were hiking the Plantation Trail in the Barataria Preserve of Jean Lafitte National Historical Park and Preserve in Marrero, Louisiana.[4] The Fishers allege that they encountered muddy trail conditions and Amanda Fisher (“Mrs. Fisher”) began to sink in the mud up to her calves.[5] To avoid the mud, Mrs. Fisher walked onto a raised wooden boardwalk, slipped, and fell causing injury.[6] The Fishers allege that after the accident, a park ranger who made his way to the scene stated that the trail should have been closed due to damage caused by feral hogs.[7] The Fishers contend that the park rangers knew of dangerous trail conditions but did not communicate the dangers to the Fishers, or close the trail, and that park rangers constructed the wooden boardwalks from materials known to be defective.[8]

         The Park and Plantation Trail are managed by the National Park Service (“NPS”) - a government agency under the Department of the Interior (“the DOI”). “The Barataria Preserve is a natural and historical resource … that consists of 25, 000 acres of Louisiana wetlands … [and] is open to the public for recreational use, without fee.”[9] Created by the NPS Organic Act, the NPS's stated “purpose is to conserve the scenery, natural and historic objects, and wild life in the [National Park] System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 54 U.S.C. § 100101. The NPS manages its mission under a hierarchy of authority: the Organic Act is the primary federal statute governing the NPS and its management of national parks; codified regulations govern at the next level (36 C.F.R. § 1.1, et seq.); followed by policy documents issued by the NPS under a three-tier directive system - tier 1 includes the NPS's Management Policies; tier 2 includes director's orders (e.g., Director's Order #50C - NPS Public Risk Management Program); and tier 3 includes reference manuals, handbooks, and other guidance (e.g., the NPS Sign Manual).[10]

         On October 26, 2017, pursuant to 28 U.S.C. § 2675(a), Mrs. Fisher provided notice of her injury claims to the DOI.[11] On February 8, 2018, the DOI denied Mrs. Fisher's claim and notified her of a six-month statute of limitations to file suit in federal court.[12] Christopher Fisher (“Mr. Fisher”) did not present to the DOI any administrative claim concerning the accident.[13]

         On June 11, 2018, within the prescriptive period, the Fishers filed suit in this Court, civil action no. 18-05801 (the “first action”).[14] On December 28, 2018, the United States Magistrate Judge found that this Court lacked subject-matter jurisdiction over the Fishers' claims due to sovereign immunity and that a proposed amendment to their complaint was futile to remedy the jurisdictional defects.[15] Consequently, this Court dismissed the first action for lack of subject-matter jurisdiction.[16]

         On March 18, 2019, the Fishers filed the instant action.[17] The Fishers allege that the USA is liable under the FTCA for Mrs. Fisher's injuries and damages for (1) failure to warn of known dangers, (2) failure to properly maintain the trail at issue, (3) failure to close the trail, (4) use of known defective materials in the construction of trail boardwalks, (5) failure to provide safety training for park staff, and (6) failure to “establish, implement, or enforce policies and procedure to warn” of dangerous conditions.[18] The Fishers also seek damages for Mr. Fisher's loss of consortium.

         II. PENDING MOTION

         The USA filed the instant motion to dismiss arguing that this Court lacks subject-matter jurisdiction over the Fishers' claims because they fall within the discretionary function exception of the FTCA, and therefore, the federal government has not waived its sovereign immunity.[19]The USA argues that no specific course of conduct was prescribed for the circumstances giving rise to this action and, further, that trail management and maintenance, including warning signage and boardwalk materials, are left to the discretion of NPS park managers who must balance “the competing interests of resource-conservation and visitor enjoyment both now and in the future.”[20] The USA also states that because Mr. Fisher failed to file an FTCA administrative claim, this Court does not have subject-matter jurisdiction over Mr. Fisher's claims due to his failure to exhaust administrative remedies.[21]

         In opposition, the Fishers contend that the USA is liable for Mrs. Fisher's injuries because NPS employees violated non-discretionary NPS policy when they failed to “eliminate, reduce or warn of [a trail] hazard” and that managing trail hazards does not implicate public policy but is rather a “garden-variety” slip-and-fall case based on property management and is thus outside the discretionary function exception to the waiver of sovereign immunity.[22] The Fishers conclude, then, that the park employees' decisions at issue are not the kind of decision-making Congress intended to shield under the exception.[23]

         III. ANALYSIS

         A. Rule 12(b)(1) Standard

         Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a party to challenge a court's subject-matter jurisdiction. “[A] claim is ‘properly dismissed for lack of subject-matter jurisdiction when the court lacks the statutory authority or constitutional power to adjudicate' the claim.” Griener v. United States, 900 F.3d 700, 703 (5th Cir. 2018) (quoting In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012)). The party asserting jurisdiction bears the burden of proving that subject-matter jurisdiction exists. Id. “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). “A motion to dismiss for lack of subject-matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claims entitling him to relief.” Sureshot Golf Ventures, Inc. v. Topgolf Int'l, Inc., 754 Fed.Appx. 235, 235 (5th Cir. 2018) (citing Wagstaff v. U.S. Dep't of Educ., 509 F.3d 661, 663 (5th Cir. 2007)).

         B. The FTCA's Discretionary Function Exception

         The FTCA is a limited waiver of the United States government's sovereign immunity. Coleman v. United States, 912 F.3d 824, 835 (5th Cir. 2019) (citing 28 U.S.C. § 1346(b)(1)). Specifically, the FTCA provides a waiver of sovereign immunity for “civil actions on claims against the United States, for money damages, ... for injury or loss of property, or 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).

         Under the discretionary function exception, however, the federal government's waiver of immunity does not apply to “[a]ny 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). “[T]he discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.” Berkovitz v. United States, 486 U.S. 531, 537 (1988).

         The Supreme Court established a two-part test to determine whether an agency or employee's conduct falls within the discretionary function exception, thereby restoring immunity for the federal government. See Id. at 536-37. First, a court must inquire whether the challenged conduct “involves an element of judgment or choice” regardless of the actor's intent. Id. at 536. “Thus, the discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Id. Second, “a court must determine whether [the] judgment is of the kind that the discretionary function exception was designed to shield” - namely, “decisions grounded in social, economic, and political policy.” Id. at 536-37. Where a statute, regulation, or policy provides agency discretion, there exists “a strong presumption” that the government “agent's acts are grounded in [the same] policy when exercising that discretion.” United States v. Gaubert, 499 U.S. 315, 324 (1991).

         C. Discretionary Function Analysis

         As alleged by the Fishers, the conduct at issue is the NPS employees' (1) failure to warn of dangerous trail conditions, (2) failure to properly maintain the trail, (3) failure to close the trail, (4) use of defective materials in the construction of trail boardwalks, (5) failure to provide safety training for park staff, and (6) failure to establish, implement, or enforce policies and procedures to warn of dangerous conditions. The USA contends that the conduct at issue was discretionary in nature and that NPS employees must balance the agency's mission of preservation and conservation with public ...


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