The opinion of the court was delivered by: Susan Oki Mollway United States District Judge
ORDER DENYING DEFENDANT UNITED STATES' MOTION TO DISMISS
ORDER DENYING DEFENDANT UNITED STATES' MOTION TO DISMISS
On December 7, 2003, massive rainfall on the island of Oahu, State of Hawaii, caused mud and debris from the hillside of Tripler Army Medical Center ("Tripler") to slide to the residential neighborhood below. Plaintiffs Paul H. Hieda and Lauren F. Hieda (collectively, "the Hiedas"), whose property was damaged by the flooding, now sue Defendant United States of America ("the Government") under the Federal Tort Claims Act ("FTCA") for negligence. The City and County of Honolulu is also named as a Defendant.
The Government has moved to dismiss the First Amended Complaint ("FAC") for lack of subject matter jurisdiction under the "discretionary function" exception to the FTCA. Given the Government's failure to identify any particular social, economic, or political policy relevant to its actions, or any decision arising from any of those policies, the court denies the motion with respect to the Hiedas' claims that the Government was negligent in planning for or designing Tripler. The court further denies the Government's motion as to the Hiedas' claims based on negligent implementation, construction, repair, or maintenance of Tripler, because such acts are not discretionary functions.
The underlying facts surrounding this case are largely
undisputed. On December 7, 2003, the Hiedas' home was one of many damaged when torrential rainfall caused flooding and a landslide in the Moanalua Valley area of Honolulu, Hawaii. A mudslide from Moanalua Ridge, where Tripler is located, into the valley below damaged the Hiedas' real and personal property. The Hiedas subsequently brought suit against the Government and the City and County of Honolulu. The Hiedas allege in the FAC that the mudslide was the result of the Government's negligence in connection with its activities on the property where Tripler is located:
On or about December 7, 2003, Defendant USA negligently maintained certain conditions and negligently engaged in activities on the hillside above Plaintiffs' property, including, without limitation, improvements that were being made to the grounds of the Center and the failure to properly design, landscape, engineer, repair, and/or maintain the improvements, property, and/or drainage facilities.
The Government moves to dismiss for lack of subject matter jurisdiction.
When the Government moves to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that the actions complained about involve discretionary functions, the court may consider the challenged pleadings, as well as jurisdictional facts supplied by affidavit, declaration, or other evidence properly before the court. Green v. United States, 630 F.3d 1245, 1248 n.3 (9th Cir. 2011). The party asserting subject matter jurisdiction usually bears the burden of establishing proper jurisdiction. See Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir. 1979). However, when the discretionary function exception is invoked, the Government bears the burden of establishing that the exception applies. See Whisnant v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005); Bear Medicine v. United States ex rel. Sec'y of the Dep't of the Interior, 241 F.3d 1208, 1213 (9th Cir. 2001); Def. United States' Mot. to Dismiss at 7, Aug. 31, 2011, ECF No. 67 ("Motion").
A. The "Discretionary Function" Exception.
The Government's sole argument for dismissal of the FAC is that the discretionary function exception to the FTCA bars the Hiedas' claims. Normally, "[a] party may bring an action against the United States only to the extent the Government waives its sovereign immunity." Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995). The FTCA operates to waive the Government's sovereign immunity for claims "arising out of the negligent conduct of government employees acting within the scope of their employment." Soldano v. United States, 453 F.3d 1140, 1145 (9th Cir. 2006) (citing Valdez, 56 F.3d at 1179). Thus, the Government can be sued "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) (2011).
However, the FTCA's waiver of immunity is limited by the discretionary function exception, which "restores the government's immunity in situations where its employees are carrying out governmental or 'regulatory' duties." Faber v. United States, 56 F.3d 1122, 1124 (9th Cir. 1995). The United States is not liable for
[a]ny 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 a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a) (2001). The purpose of the statutory exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. See United States v. Gaubert, 499 U.S. 315, 323 (1991). "Where the exception applies, no federal subject matter jurisdiction exists." In re Glacier Bay, 71 F.3d 1447, 1450 (9th Cir. 1995) (citing Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir. 1994)).
The discretionary function exception bars a tort claim when a two-part test is satisfied. See Gaubert, 499 U.S. at 322-25; Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). As stated by the Ninth Circuit,
First, we determine whether the challenged actions involve "'an element of judgment or choice.'" Valdez, 56 F.3d at 1179 (quoting United States v. Gaubert, 499 U.S. 315, 322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991)). Our inquiry looks to the "nature of the conduct, rather than the status of the actor," and the discretionary element is not met where "a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Berkovitz, 486 U.S. at 536, 108 S. Ct. 1954 (internal quotation marks and citation omitted). In such event, our inquiry is at an end, and the discretionary function exception does not apply because "the employee has no rightful option but to adhere to the directive." Id.
However, if an element of choice or judgment is involved, we move to the second step of the analysis and determine "'whether that judgment is of the kind that the discretionary function exception was designed to shield.'" Gaubert, 499 U.S. at 322-23, 111 S. Ct. 1267 (quoting Berkovitz, 486 U.S. at 537, 108 S. Ct. 1954). The exception "protects only governmental actions and decisions based on considerations of public policy.'" Id. at 323, 111 S. Ct. 1267 (quoting Berkovitz, 486 U.S. at 537, 108 S. Ct. 1954). In other words, only those decisions "grounded in social, economic, and political policy" will be protected by the discretionary function exception. Childers v. United States, 40 F.3d 973, 974 (9th Cir. 1994). The exception "will apply ...