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Heilich v. United States

United States District Court, D. South Carolina, Columbia Division

December 21, 2018

Judith Heilich, Scott Weyant, and Fort Jackson Masonic Lodge No. 374, AFM, Plaintiffs,
v.
United States of America, Defendant. Sun Suk d/b/a Saky Japanese Restaurant, LLC, Jannette Fisher Spires, Tommie A. Spires, Jr., Ramone M. Jackson d/b/a Professional Cuts, LLC, and Olga Mazyck d/b/a Natural Beauty Salon, Plaintiffs,
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 Heilich v. United States, C/A No. 3:16-cv-03054-JMC, ECF No. 1 (D.S.C. Sept. 8, 2016) (“Heilich”); Sun Suk v. United States, C/A No. 3:17-cv-02674-JMC, ECF No. 1 (D.S.C. Oct. 4, 2017) (“Sun Suk”).

         This matter is before the court by way of the Government's Motions to Dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. (ECF No. 82 (Heilich); ECF No. 59 (Sun Suk).[1]) Specifically, the Government seeks dismissal of the instant actions based on the court's Order entered in related cases on September 27, 2018 (the “September Order”), which held that the discretionary function exception precluded the exercise of subject matter jurisdiction under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, and resulted in the dismissal of Plaintiffs' Complaints for lack of jurisdiction. See Cohen v. United States, C/A No. 3:16-cv-01489-JMC, ECF No. 186 (D.S.C. Sept. 27, 2018) (“Cohen”); Brown v. United States, C/A No. 3:16-cv-03053-JMC, ECF No. 131 (D.S.C. Sept. 27, 2018) (“Brown”); and Kings Grant Owners Ass'n, Inc. v. United States, C/A No. 3:17-cv-00289-JMC, ECF No. 117 (D.S.C. Sept. 27, 2018) (“KGOAI”).[2] Plaintiffs oppose the Government's Motions arguing that the testimony of its Rule 30(b)(6) designated representative, Lieutenant Colonel (“LtCol”) Richard T. Childers of the United States Army Corps of Engineers, demonstrates the inapplicability of the discretionary function exception. (ECF No. 86 at 2-9.) For the reasons set forth below, the court GRANTS the Government's Motions to Dismiss.

         I. RELEVANT BACKGROUND TO PENDING MOTIONS

         In the September Order, the court provided a thorough recitation of the relevant factual and procedural background of the related above-referenced matters. The portions of that background which are relevant to the instant actions are included as follows:

Fort Jackson spans 52, 000 acres and serves “as the U.S. Army's main production center for Basic Combat Training.” U.S. Army Training Center, Fort Jackson, http://jackson.armylive. dodlive.mil/about/ (last visited Sept. 18, 2018). . . . Semmes Lake and Lower Legion Lake are bodies of water “located completely within the boundaries of Fort Jackson's Military Reservation and, as such, are owned by the Federal Government.” Environmental 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. 19, 2018); Environmental Assessment: Upper and Lower Legion Lakes Repairs, http://www.sac.usace.army.mil/Portals/43/docs/milcon/Final%20 Legion%20Lakes%20EA.pdf?ver=2017-08-31-145359-603 (last visited Sept. 25, 2018).
The Semmes Lake Dam is an earthen dam that impounds the waters from the Semmes Lake. Id.; (see also ECF No. 114 at 21). “The Semmes Lake Dam was reportedly constructed in the 1930s by National Guard personnel to provide recreation for the installation.” (ECF No. 114 at 11.) “Semmes Lake Dam is located near the southern boundary of the Fort Jackson Reservation limits on Wildcat Creek.” (ECF No. 103-11 at 4.) “The structural height [of the Semmes Lake Dam] ¶ 27 f[ee]t, [] the crest length is 970 f[ee]t[, . . . and] [t]he normal reservoir capacity is 329 acre-f[ee]t.” (ECF No. 103-15 at 6.)
The Lower Legion Dam is an earthen dam that impounds the waters from the Lower Legion Lake. (ECF No. 114-1 at 5); see also Environmental Assessment: Upper and Lower Legion Lakes Repairs, http://www.sac.usace.army.mil/Portals /43/docs/milcon/Final%20Legion%20Lakes%20EA.pdf?ver=2017-08-31-145359 -603 (last visited Sept. 25, 2018). “The Lower Legion Lake Dam . . . was constructed in the late 1950s to supply water to the Fort Jackson golf course.” (ECF No. 114 at 11.) The “Lower Legion Lake Dam is located on a tributary to Wildcat Creek within Fort Jackson.” (ECF No. 114-1 at 5.) However, Fort Jackson generally does not consider the Lower Legion Lake Dam to be an actual dam.[3] (Id. at 15.) The structural height of the Lower Legion Lake Dam is 12 feet, the crest length is 500 feet, and the normal reservoir capacity is 37 acre-feet. (ECF No. 114-1 at 8-9.)
In September 1997, the Savannah District Army Corps of Engineers drafted an Emergency Action Plan (“EAP”) for the Semmes Lake Dam. (ECF No. 103-11.) The EAP was deemed necessary because the Semmes Lake Dam had a hazard classification of “significant, meaning the failure of the dam would likely not cause loss of life but could cause appreciable economic loss.” (Id. at 4 (“State and federal guidelines . . . dictate that dams with high hazard classifications should have Emergency Action Plans.”).) In the EAP, the Corps of Engineers observed:
The Phase I inspection report of Semmes Lake concluded that Semmes Lake Dam was ‘small' size, based on dam height and storage volume, and ‘high hazard, based on downstream development in the flood plain. However, the Phase II inspection conducted by the U.S. Army Corps of Engineers, Savannah District, resulted in the hazard classification being changed to significant because the threat of loss of life is low. The significant hazard classification is supported by the flood hazard analysis performed for this plan. The appropriate Spillway Design Flood[4] (SDF) was determined to be ½ the PMF.[5]

(Id. at 9.) The Corps of Engineers further determined that “[t]he existing spillway is adequate to pass only about 25 percent of the PMF (10.8 inches of rain in 24 hours) and should be upgraded.” (Id. at 11.)

On May 1, 2000, the Department of the Army (“DA”) published AR 420-72 (effective June 1, 2000), which established among other things that: (1) Army dams are classified “according to their size and hazard potential”; (2) “Army dams at all CONUS[6] installations will be maintained at or above the minimum condition levels of host State and as specified herein and in the above referenced FEMA[7] documents”; (3) “[a]ll dams must be maintained to allow passage of the design flows (flood) without major deterioration of dam components or damaging erosive or undermining action, nor loss of stability”; (4) “[f]inal decision responsibility on the design flood/risk analysis shall be the decision of the dam owner, the installation commander”; and (5) an EAP “shall be prepared for each high and significant hazard installation dam.” (ECF No. 103-4 at 4 § 5-3; 5 §§ 5-5, 5-6; 7 § 5-15.)
Between October 16, 2006, and March 31, 2008, the “Semmes Lake Dam and its spillway underwent major repairs and alterations.” (ECF Nos. 113 at 16, 114-6 at 19.) The following safety modifications were made to the dam: “Remove existing primary spillway (outlet works) inlet structure, 24-inch diameter conduit, and dissipation basin[;] Construct a new primary spillway (outlet works) inlet structure, 48-inch diameter conduit, and dissipation basin; Excavate approximately 1/5 of the dam embankment to replace the primary spillway and reconstruct embankment[][;] Armor the upstream slope of the dam embankment with riprap stone[][; and] Remove the emergency spillway chute, and construct a new concrete spillway chute and plunge pool.” (ECF No. 114-6 at 19.)
On February 12, 2008, the Department of the Army published AR 420-1 (effective February 19, 2008), which established among other things that: (1) “[c]lassification of each installation's dams shall be reviewed and validated every 2 years by the garrison commander”; (2) “Army dams will be maintained at or above the minimum condition levels of host state or host nation and as specified herein”; (3) “[a]ll dams must be maintained to allow passage of the design flows (flood) without major deterioration of dam components or damaging erosive or undermining action, nor loss of stability”; (4) “[f]inal decision responsibility on the design flood and risk analysis shall be the decision of the dam owner, the garrison commander”; (5) “[t]he garrison commander shall ensure that an EAP is prepared for each high and significant hazard installation dam”; and (6) “[i]In providing . . . dam safety services, Army garrisons will comply with all applicable Federal laws and regulations.” (ECF No. 103-3 at 5 §§ 7-46, 7-47; 6 § 7-54; ECF No. 126-2 at 9 § 7-5(a).)

         On April 9, 2009, the DA published DA Pamphlet 420-1-3 to provide “guidance for project planning and execution, maintenance, repair, minor construction, and control of . . . dams.” (ECF No. 103-9.) Regarding dam maintenance, Pamphlet 420-1-3 advised that:

A good maintenance program will protect a dam against deterioration and prolong its life. A poorly maintained dam will deteriorate and can fail. Nearly all the components of a dam and the materials used for dam construction are susceptible to damaging deterioration if not properly maintained. A good maintenance program provides not only protection for the owner, but for the general public as well. Furthermore, the cost of a proper maintenance program is small compared to the cost of major repairs or the loss of life and property or potential liability for such losses. A garrison commander should develop a basic maintenance program based primarily on systematic and frequent inspections. . . . Safety deficiencies must be addressed immediately by either lowering the pool or correcting the deficiency. Garrison commanders may be held personally liable for the safety of the dams under their authority and must fund projects to correct the deficiencies . . . . Earthen dams will have vegetation properly controlled and mowed, seepage will be constantly observed and controlled, and erosion repaired. Spillways will be properly maintained and erosion repaired. Outlets will be maintained and controls tested annually.

(ECF No. 103-9 at 7 § 6-4.)

         On November 16, 2009, Corps of Engineers personnel inspected the Semmes Lake Dam and determined that the dam was in fair condition, but recommended the removal of specified shrubbery, vegetation, trees, and stumps. (ECF No. 103-15 at 6.)

         In June of 2010, the Corps of Engineers prepared another EAP for the Semmes Lake Dam. Because it determined that the dam's hazard classification was again “significant, ” the Corp of Engineers made the following observations in the EAP:

One half of the Probable Maximum Precipitation (PMP) is the required design storm under the South Carolina Rules for Dam Safety for Semmes Lake Dam. This is based on the significant hazard classification of the dam. Significant hazard dams are described as any dam where there is no probable loss of human life, but a possible economic loss, environmental change, or disruption of lifeline facilities. There is potential hazard to the commercial offices along Marion Ave as well as several houses along N. Kings Grant Dr. Semmes Lake Dam is classified as a small dam, with 329 acre-feet of normal pool storage, 970 feet long, and 27 feet in height.

(ECF No. 103-12 at 8.)

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[8] (CISA, 2015).” Environment Assessment: Replacement of Semmes Lake Dam, http://www .sac.usace.army.mil/Portals/43/docs/milcon/Semmes%20Lake%20Draft%20EA.p df?ver=2017-08-11-152050-713 (last visited Sept. 17, 2018). “Two rainfall gauges on the Fort . . . recorded a maximum 24-hour rainfall of 13.4 inches from 8 pm on 3 October 2015 to 8 pm on 4 October 2015 from the storm event.” (ECF No. 114 at 13.) The flooding caused by the historic storm event breached both the Semmes Lake Dam and the Lower Legion Lake Dam. (Id. at 11-12.)
On October 21, 2015, Fort Jackson contacted the Corps of Engineers Risk Management Center (“RMC”) seeking an independent assessment “regarding the failure of Semmes Lake Dam, Lower Legion Dam, . . . following the extreme storm event that occurred on 4 October 2015.” (ECF No. 114 at 17.) On August 26, 2016, the RMC produced a document titled October 2015 Storm Event Independent Technical Review (“ITR”). (ECF Nos. 114-114-20.) In the ITR, the RMC expressly observed that the maximum rainfall record was 13.4 inches in 24-hours and both the Semmes Lake Dam and Lower Legion Lake Dam failed because of overtopping.[9] (ECF No. 114 at 13, 15.) In addition, the RMC observed that (1) “Semmes Lake Dam was not managed in accordance with Army regulation and guidance for dams (including AR 420-1 and DA Pam 420-1-3) that address inspection, maintenance, safety, and performance”; (2) “DHEC[10]regulations expressly exempt dams owned or operated by an agency of the Federal government”; (3) “the dam could not pass 50% of the PMF without overtopping”; and (4) “Lower Legion Lake Dam likely would have overtopped for the 4 October 2015 storm event regardless if it met the hydrologic requirements for its size and hazard category.” (ECF No. 114 at 13-15.)

(See ECF No. 186 at 3-9 (Cohen).)

         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. 1 at 8-9 ¶ 60), Plaintiffs filed Complaints against the Government for negligence. (Id. at 8 ¶ 54-10 ¶ 65.) After amending the Complaint to add additional parties (ECF No. 10), the parties conducted extensive discovery, including the Rule 30(b)(6) deposition of LtCol Childers on September 25, 2018. (See ECF Nos. 86-2.)

         While the litigation in the instant actions was ongoing, the court entered the September Order in Cohen, Brown, and KGOAI, finding that the conduct challenged by Plaintiffs fell under the discretionary function exception of the FTCA. (ECF No. 186 at 22 (Cohen) (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 (Cohen).) In reaching this determination, the court made the following observations in the September Order:

“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, ...

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