Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

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,
v.
United States of America, Defendant. Martha Brown, Frank Brown, Jennifer Feldman, Barry Feldman, John Babson, Steve Cloud, Laura Cloud, and Elizabeth Brogdon, Plaintiffs,
v.
United States of America, Defendant. Kings Grant Owners' Association, Inc., Plaintiff,
v.
United States of America, Defendant.

          ORDER AND OPINION

         Plaintiffs 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) (“KGOAI”).

         This 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).[1]) 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 Amend.

         I. RELEVANT BACKGROUND TO PENDING MOTIONS[2]

         During 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[3] (CISA, 2015).” Environment Assessment: Replacement of Semmes Lake Dam, http://www .sac.usace.army.mil/Portals/43/docs/milcon/Semmes%20Lake%20Draft%20EA.pdf?ver=2017-08-11-152050-713 (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 § 2680(a)).
. . .
“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 function exception:
“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 PMF[4]and 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.” Id.
. . .
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.[5] 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. 29, 2018).
. . .
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.)

         Based on the foregoing, the court entered Judgment for the Government on September 28, 2018. (ECF No. 187.)

         On 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.[6] (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.)

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.