United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on Defendant's renewed motion
to dismiss for lack of subject matter jurisdiction based on
the discretionary function exception to the Federal Tort
Claims Act ("FTCA"). (Dkt No. 61.) For the reasons
set forth below, the Court denies Defendant's renewed
motion to dismiss.
an agent with the South Carolina Law Enforcement Division,
participated in a maritime tactical operations training
program ("MTOTP") conducted at the Federal Law
Enforcement Training Center ("FLETC") in North
Charleston, South Carolina in August 2012. The purpose of the
MTOTP was to train students on tactical boarding procedures
for "High Interest/High Threat Vessels." (Dkt. No,
21 at 2.)
August 22, 2012, the third day of the four and one half day
program, the program called for students to climb the
exterior of a 29-foot high structure using a lightweight flexible
ladder used to board ships. (Id.) Participants were
to complete three climbs, the first solo without tactical
gear, the second solo in full tactical gear, and the third in
full tactical gear with multiple students on the ladder.
(Dkt. No. 21-3 at 9.) Plaintiff was attempting his second
climb in full tactical gear when, at about 22 feet high, he
struggled, lost his grip, and fell.
safety strap used in the program did not have an automatic
fall arrest mechanism; participants had to manually clip the
safety strap to the ladder when they needed to rest.
Plaintiff had clipped his safety strap to the ladder twice
during the climb when he became fatigued but did not clip in
prior to losing his grip and falling. (Dkt. No. 21 at 2-3.)
Although the program designers had positioned a high jump mat
at the base of the building to catch participants who might
fall, when Plaintiff fell, his body landed on only a portion
of the mat and rolled off and onto the ground. Plaintiff was
initially unconscious for 3-5 minutes following the fall and
was tended to by emergency medical personnel. He was then
transferred to MUSC Hospital for treatment. (Dkt. No. 21-3 at
8, 13, 18, 19, 20).
this incident, the Site Director of the FLETC facility
requested a Training Accident Investigation Team
("TAIT") initiate a formal investigation into the
circumstances leading to Plaintiff s fall and the
effectiveness of the safety methods that had been utilized in
the MTOTP. The report found that the program's hazard
avoidance procedures and measures were deficient for their
failure to include "an automatic fall arrest mechanism .
. . that required no student deployment" and a high jump
mat system that was "suitable to handle a fall."
The report concluded that "[t]here was limited and
inadequate testing and evaluation done when determining the
... safety mitigation for this area of training." (Dkt.
No. 21-3 at 4, 5, 17, 18, 20, 23).
Subject Matter Jurisdiction
Defendant may challenge subject matter jurisdiction by
contending 1) that the complaint fails to allege facts
sufficient to establish subject matter jurisdiction or 2)
"that the jurisdictional allegations of the complaint
[are] not true." Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982). If the Defendant challenges the
sufficiency of the jurisdictional allegations on the face of
the complaint, Plaintiff receives the same procedural
protections afforded under Rule 12(b)(6): "the facts
alleged in the complaint are taken as true, and the motion
must be denied if the complaint alleges sufficient facts to
invoke subject matter jurisdiction." Kerns v. United
States, 585 F.3d 187, 192 (2009). If, however "the
defendant challenges the factual predicate of subject matter
jurisdiction, " a district court may hold an evidentiary
hearing to consider the relevant facts. Id. In that
case, Plaintiffs allegations are not presumed to be truthful,
and the district court may "decide disputed issues of
fact with respect to subject matter jurisdiction."
upon considering a motion to dismiss, a Court finds that
"the jurisdictional facts and the facts central to a
tort claim are inextricably intertwined, " Defendant has
indirectly challenged Plaintiffs claims on the merits.
Id. at 193. When that is the case, "the trial
court should ordinarily assume jurisdiction and proceed to
the intertwined merits issues." Id. This
procedure promotes judicial economy, ensures that Plaintiffs
allegations benefit from the presumption of truthfulness, and
grants Plaintiff the "procedural safeguards - such as
discovery -that would apply" if Plaintiff faced a direct
challenge on the merits. Id.
Discretionary Function Exception to the Federal Tort Claims
FTCA authorizes lawsuits against the United States for
wrongful acts or omissions of federal employees acting within
the scope of their office in circumstances where a private
person would be liable for similar claims in the jurisdiction
where the claim arose. 28 U.S.C. § 1346(b). Under the
FTCA, the Government cannot be held liable for actions that
fall within its discretionary function, an exception based on
the premise that the judiciary should not "second
guess" policy choices of the ...