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Cohen v. United States
United States District Court, D. South Carolina, Columbia Division
December 21, 2018
Helga Cohen, Steven Cohen, Lisa Echols, Robert Echols, Jr., Melissa Fritz, Wayne Fritz, Alexander Giles, Carolyn Giles, Aimee Gondi, Gokul Gondi, Denise Hubbard, Charles Hubbard, Christopher Long, Leslie Long, Jane Marshall, Christopher Marshall, Joseph Park, Sohee Park, John Parrott, Krista Parrott, Jesse Myers, Jacqueline Myers, Kim Rich, Smythe Rich, and Donna Strom, Plaintiffs,
United States of America, Defendant. Martha Brown, Frank Brown, Jennifer Feldman, Barry Feldman, John Babson, Steve Cloud, Laura Cloud, and Elizabeth Brogdon, Plaintiffs,
United States of America, Defendant. Kings Grant Owners' Association, Inc., Plaintiff,
United States of America, Defendant.
ORDER AND OPINION
above-named collectively filed these related actions seeking
money damages from Defendant United States of America (the
“Government”) for the destruction caused to their
homes by flood water freed when it breached the Semmes Lake
and Lower Legion Lake Dams at Fort Jackson (South Carolina)
army installation in October 2015. See Cohen v. United
States, C/A No. 3:16-cv-01489-JMC, ECF No. 1 (D.S.C. May
9, 2016) (“Cohen”); Brown v. United
States, C/A No. 3:16-cv-03053-JMC, ECF No. 1 (D.S.C.
Sept. 8, 2016) (“Brown”); and Kings
Grant Owners Ass'n, Inc. v. United States, C/A No.
3:17-cv-00289-JMC, ECF No. 1 (D.S.C. Jan. 31, 2017)
matter is before the court by way of Plaintiffs' Motions
to Alter or Amend Judgment pursuant to Rules 59(e) and 60(b)
of the Federal Rules of Civil Procedure. (ECF No. 191
(Cohen); ECF No. 134 (Brown); ECF No. 120
(KGOAI).) Specifically, Plaintiffs seek to alter or
amend the court's Order entered on September 27, 2018
(ECF No. 186) (the “September Order”), and the
subsequent Judgment entered on September 28, 2018 (ECF No.
187), which resulted in the dismissal of Plaintiffs'
Complaints for lack of jurisdiction. The Government opposes
Plaintiffs' Motions arguing that “none of the
grounds for granting such motion[s] exist.” (ECF No.
193 at 2.) For the reasons set forth below, the court
DENIES Plaintiffs' Motions to Alter or
RELEVANT BACKGROUND TO PENDING MOTIONS
a four day period from October 2-5, 2015, a historic storm
event occurred across South Carolina causing “rainfall
totals in the Columbia area [to] exceed the 1, 000-year
recurrence intervals as referenced to the point precipitation
frequency estimates in NOAA Atlas 14 (CISA, 2015).”
Environment Assessment: Replacement of Semmes Lake
(last visited Sept. 17, 2018). This historic storm event
caused floodwaters which breached both the Semmes Lake Dam
and the Lower Legion Lake Dam located on Fort Jackson. (ECF
No. 114 at 11-12.) Because they believed damage to their real
and personal property occurred as a result of the
Government's breach of specified duties owed to them that
resulted in “the failure of the Semmes Lake dam and
Lower Legion Lake dike” (see ECF No. 48 at 11
¶ 77, 12-13 ¶ 90), Plaintiffs filed Complaints
against the Government for negligence. (ECF No. 1 at 10
¶ 65-12 ¶ 76.) After the court entered an Order
granting a Motion to Amend the Complaint (ECF Nos. 40, 47),
Plaintiffs filed an Amended Complaint alleging claims for
negligence, trespass, and nuisance. (ECF No. 48 at 11 ¶
82-16 ¶ 113.) After the parties conducted extensive
discovery, Plaintiffs filed Motions for Partial Summary
Judgment and the Government filed a Motion to Dismiss or, in
the alternative, for Partial Summary Judgment. (ECF Nos. 103,
140.) After the parties were given the opportunity to fully
brief (ECF Nos. 126, 152) and provide oral argument in
support of their Motions (ECF No. 182) on September 21, 2018,
the court entered the September Order finding that the
conduct challenged by Plaintiffs fell under the discretionary
function exception of the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671-2680. (ECF
No. 186 at 22 (referencing 28 U.S.C. § 2680(a)).) As a
result, the court granted the Government's Motion to
Dismiss, dismissed Plaintiffs' Complaints, and found that
it was “without jurisdiction to review the merits of
Plaintiffs' Motion for Summary Judgment and the
Government's Motion for Summary Judgment.”
(Id. at 22-23.) In reaching this determination, the
court made the following observations:
“The FTCA excludes discretionary functions from its
waiver of sovereign immunity.” Johnson v. United
States, C/A No. 5:17-cv-00012, 2018 WL 4169141, at *3
(W.D. Va. Aug. 30, 2018) (citing 28 U.S.C. § 2680(a)).
“This discretionary function exception provides that
the sovereign immunity waiver does not apply to: any claim
based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a
statute or regulation, whether or not such statute or
regulation be valid, or based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of the federal
agency or an employee of the Government, whether or not the
discretion involved be abused.” Id. (quoting
. . .
“To state a claim under the FTCA, a plaintiff has the
burden of stating a claim for a state-law tort and
establishing that the discretionary function exception does
not apply.” Spotts v. United States, 613 F.3d
559, 569 (5th Cir. 2010) (citation omitted). If the exception
does apply, the court “must dismiss the affected claims
for lack of subject matter jurisdiction.” Indem.
Ins. Co. of N. Am. v. United States, 569 F.3d 175, 180
(4th Cir. 2009) (citing Williams v. United States,
50 F.3d 299, 304-05 (4th Cir. 1995)). In Indemnity
Insurance, the United States Court of Appeals for the
Fourth Circuit provided the following summary of the test
used to determine the applicability of the discretionary
“To determine whether conduct by a federal agency or
employee fits within the discretionary function exception, we
must first decide whether the challenged conduct
‘involves an element of judgment or choice.'”
Suter v. United States, 441 F.3d 306, 310 (4th Cir.
2006) (quoting Berkovitz v. United States, 486 U.S.
531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)).
“[T]he discretionary function exception will not apply
when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to
follow” because “the employee has no rightful
option but to adhere to the directive.”
Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954.
If we determine that the challenged “conduct does
involve such discretionary judgment, then we must determine
‘whether that judgment is of the kind that the
discretionary function exception was designed to shield,'
i.e., whether the challenged action is ‘based
on considerations of public policy.'”
Suter, 441 F.3d at 311 (quoting Berkovitz,
486 U.S. at 536-37, 108 S.Ct. 1954). Critical to proper
analysis, this inquiry focuses “not on the agent's
subjective intent in exercising the discretion . . ., but on
the nature of the actions taken and on whether they are
susceptible to policy analysis.” United States v.
Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d
335 (1991). Thus, “in the usual case” a court
should “look to the nature of the challenged decision
in an objective, or general sense, and ask whether that
decision is one which we would expect inherently to be
grounded in considerations of policy.” Baum v.
United States, 986 F.2d 716, 721 (4th Cir. 1993).
“Moreover, when a statute, regulation, or agency
guideline permits a government agent to exercise discretion,
‘it must be presumed that the agent's acts are
grounded in policy when exercising that
discretion.'” Suter, 441 F.3d at 311
(quoting Gaubert, 499 U.S. at 324, 111 S.Ct. 1267).
Indem. Ins. Co., 569 F.3d at 180.
In these cases, Plaintiffs assert that the Government is
liable for their damages because it negligently failed to
operate the Semmes Lake Dam with a ½ PMFand failed to
conduct required maintenance on both dams at issue in this
litigation. “[A] safety or engineering standard
operates to remove discretion under the FTCA when it is
embodied in a specific and mandatory regulation or statute
which creates clear duties incumbent upon the governmental
actors.” Kennewick Irr. Dist. v. United
States, 880 F.2d 1018, 1026 (9th Cir. 1989). “A
general statutory duty to promote safety . . . would not be
sufficient.” Id. (citing Allen v. United
States, 816 F.2d 1417, 1421 (10th Cir. 1987) (broad and
general duty imposed by statute on Atomic Energy Commission
to promote safety in atomic testing left room for exercise of
discretion)). “[D]iscretion [also] may be removed by a
specific mandatory governmental policy duly adopted under
authority delegated by statute or regulation.”
. . .
In considering the applicability of the mandatory standard
element of the discretionary function exception as to the
failure to operate the Semmes Lake Dam at ½ PMF,
Plaintiffs assert that the Government's conduct could not
have involved an element of choice because action was
mandated by Army Regulations. (ECF No. 152 at 8.) Moreover,
Plaintiffs contend that, due to the language in the Army
Regulations that suggests an adherence to state regulations,
the Government was also mandated to follow DHEC regulations.
(Id. at 11.) The relevant language contained in Army
Regulation (“AR”) 420-72 specifies that Army dams
“must be maintained at or above the minimum
condition levels of [the] host State . . .” (emphasis
added). (ECF No. 103-4 at 5 § 5-5.) While the court
agrees that AR 420-72 instructs the garrison commander to
reference state law requirements, the addition of “at
or above” in the regulation implies that the garrison
commander has a level of discretion. Semmes Lake Dam, at the
time of the flood, was classified as a significant hazard
dam. (ECF Nos. 103-12 at 11, 140-1 at 13.) Under South
Carolina Regulations, a dam owner must maintain their
spillway-capacity design inside the applicable Table 1 range.
See S.C. Code Ann. Regs. 72, Table I. However, if
the owner can justify the design to DHEC's satisfaction,
the spillway-capacity can fall outside of the applicable
table range. Id. Therefore, the South Carolina
Regulations, similar to AR 420-72, contain an implied element
of discretion. The ability to choose any level contained in
the applicable Table 1 range offers dam owners, and in this
situation the garrison commander, a level of discretion.
In addition to the aforementioned, there is not a federal
statute, regulation, or policy that specifically prescribes a
PMF of ½ for the Semmes Lake Dam. E.g.,
Baum, 986 F.2d at 720 (“The inquiry boils down
to whether the government conduct is the subject of any
mandatory federal statute, regulation, or policy prescribing
a specific course of action.”). ARs 420-1 and 420-72 do
not impose a course of conduct so specific as to require the
½ PMF asserted by Plaintiffs. E.g.,
Fanoele v. United States, 975 F.Supp. 1394, 1398-99
(D. Kan. 1997) (“[O]nly if a ‘specific and
mandatory regulation, statute or policy requires a particular
course of action' will a government employee's
conduct not fall within the discretionary function
exception.”) (citation omitted). These Army Regulations
leave the final decision responsibility for any flood and
risk analysis to the discretion of the garrison commander.
(See, e.g., ECF No. 103-3 at 5 § 7-47(c).) In
actuality, the only “federal” documents in the
record that reference ½ PMF are the 1997 and 2010
EAPs. However, after consideration of the
entirety of the record and after review of additional online
sources, the court cannot conclude that an EAP constrains the
dam owner's actions “in such a way that he had no
discretion but to act only a certain way.” PNC
Nat'l Ass'n v. U.S. Army Corps of Eng'rs,
No. 2:13-CV-374 JVB, 2018 WL 1531790, at *3 (N.D. Ind. Mar.
. . .
Upon the court's review, EAPs appear to provide general
directives for the purpose of dealing with dam safety
emergencies “to prevent the loss of life and/or
property” (see, e.g., ECF No. 103-11 at 5(e)),
but allow the dam's owner to maintain his or her broad
discretion. Therefore, the court finds that neither the EAPs
nor any other “federal” statute, regulation, or
policy in the record mandate a ½ PMF. Accordingly, the
decision to operate and/or maintain the Semmes Lake Dam at a
specified PMF involved an element of judgment or choice.
. . .
Plaintiffs claim that the Government failed to conduct
required maintenance on the Semmes Lake Dam and the Lower
Legion Lake Dam. In their filings, Plaintiffs rely heavily on
DA Pamphlet 420-1-3 to support their position regarding the
existence of mandatory federal law regarding dam maintenance.
However, based on the law cited by the Government, it is
clear to the court that DA Pamphlet 420-1-3 cannot serve as
mandatory federal law specifically prescribing a course of
action as it relates to dam maintenance. In this regard,
without DA Pamphlet 420-1-3, Plaintiffs fail to carry their
burden of persuading the court that there are federal
statutes, regulations, or policies that specifically govern
dam maintenance thereby removing the element of judgment or
choice from the Government's actions.
. . .
As to the public policy analysis element of the discretionary
function exception, the court observes that Plaintiffs'
arguments do not demonstrate that the Government's
failure to either operate the Semmes Lake Dam with a ½
PMF or conduct specified maintenance on the Semmes Lake Dam
and/or the Lower Legion Lake Dam was a decision made outside
of the scope of policy-driven duties. See A.O. Smith
Corp. v. United States, 774 F.3d 359, 365 (6th Cir.
2014) (“There is a ‘strong presumption' that
the second part of this Gaubert test is satisfied if
a court concludes that the employee was exercising
discretion.” (citing Gaubert, 499 U.S. at
324)). “Judicial intervention in such decisionmaking
through private tort suits would require the courts to
‘secondguess' the political, social, and economic
judgments of an agency exercising its regulatory
function.” Hawes v. United States, 322
F.Supp.2d 638, 645 (E.D. Va. 2004) (citation omitted).
“It was precisely this sort of judicial intervention in
policy-making that the discretionary function exception was
designed to prevent.” Id. at 645-46.
Therefore, upon consideration of the foregoing, the court
finds that the Government's alleged negligent conduct
falls within the discretionary function exception and does
not form a proper basis for a lawsuit under the FTCA.
Accordingly, the court finds that it lacks subject matter
jurisdiction over these actions and must dismiss them.
(ECF No. 186 at 15-22.)
on the foregoing, the court entered Judgment for the
Government on September 28, 2018. (ECF No. 187.)
September 25, 2018, Plaintiffs took the deposition of the
Government's Rule 30(b)(6) designated representative,
Lieutenant Colonel (“LtCol”) Richard T. Childers
of the United States Army Corps of Engineers. (See ECF
No. 191-1 at 2.) Based on LtCol Childers' testimony,
Plaintiffs filed the instant Motions on October 26, 2018,
seeking to alter or amend the September Order and resulting
Judgment. (ECF No. 191.)