HITE v. UNITED STATES DEPARTMENT OF THE INTERIOR (2024)

ORDER

AND NOW, this 29th day of May 2024, upon considering defendants’ motion to dismiss (DI 4) and plaintiff's letter in opposition (DI 17), it is ORDERED that defendants’ motion to dismiss (DI 4) is GRANTED for the reasons that follow. The case is DISMISSED with prejudice.

1. On June 22, 2021, plaintiff Gale Hite (“Ms. Hite”) tripped, fell, and sustained serious injuries on “uneven and unleveled bricks in the sidewalk” near the corner of 7th and Market streets in Philadelphia, Pennsylvania (across the street from this courthouse). DI ¶¶ 9, 10. Ms. Hite fell next to a historical site known as the “Declaration House.” Id. It is undisputed that the offending sidewalk is part of Independence National Historic Park, which is managed, “promote[d], and regulate[d]” by the United States Department of the Interior under Congressional mandate. DI 4 at 4, 5, 8 (ECF).¹ In fact, Ms. Hite alleges that the sidewalk belongs to the United States Department of the Interior, DI 1 ¶ 8, which she sued together with the United States of America (the “defendants”) under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (the “FTCA”) to recover for her injuries. See generally DI 1.

2. Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), arguing that the Department of the Interior is not a proper defendant in this action, and further, that the “discretionary function exception” to the FTCA precludes subject-matter jurisdiction here. DI 4 at 5, 13 (ECF). We agree.

3. A federal court must grant a motion to dismiss any claim over which it lacks subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1); D'Antonio v. Borough of Allendale, 2022 WL 10965674, at *2 (3d Cir. Oct. 19, 2022). Subject-matter jurisdiction is at issue here because Ms. Hite has sued the United States government, which is immune from suit except where Congress has waived its immunity by statute. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980) (citing United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). Where Congress has not made such a waiver, we do not have subject-matter jurisdiction. Id.

4. Ms. Hite sues under the FTCA. DI 1 ¶ 1. Federal agencies may not be sued under the FTCA. Priovolos v. FBI, 632 F. App'x 58, 60 (3d Cir. 2015) (a district court lacks subject-matter jurisdiction over federal agencies under the FTCA because “the only proper defendant in a suit pursuant to the FTCA is the United States”). Thus we must dismiss the Department of the Interior.

5. This leaves the United States. While the FTCA effects a limited waiver of the United States’ immunity and allows it to be subject to suit on some types of claims, there are exceptions to the exception. Mohn v. United States, 2023 WL 4311609, at *2 (3d Cir. July 3, 2023). One is the “discretionary function exception,” which means that the FTCA “does not apply to” and thus does not confer subject-matter jurisdiction over “any claim 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 [g]overnment.” Green v. United States, 1995 WL 574495, at *1 (E.D. Pa. Sept. 22, 1995) (citing 28 U.S.C. § 2680(a) to dismiss FTCA claim for lack of subject-matter jurisdiction under the discretionary function exception). Its purpose 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.” United States v. S. A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). It is the United States’ burden to prove this exception applies here. Merando v. United States, 517 F.3d 160, 164 (3d Cir. 2008).

6. To determine if the discretionary function exception applies, we must conduct a two-part inquiry. Id. First, we must determine whether the conduct giving rise to Ms. Hite's injuries involved an “element of judgment or choice.” Id. (quoting United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). Where the conduct at issue is statutorily directed such that a government employee has “no rightful option but to adhere to the directive,” it does not involve an element of judgement or choice. Id. (cleaned up). In contrast, conduct does involve an element of judgment or choice where it includes “day-to-day management” that “requires judgment as to which range of permissible courses is the wisest.” Gaubert, 499 U.S. at 325, 111 S.Ct. 1267.

7. Second, we must decide whether the element of judgment or choice identified during step one “is of the kind that the discretionary function was designed to shield.” Merando, 517 F.3d at 165 (quoting Gaubert, 499 U.S. at 322-23, 111 S.Ct. 1267). “The touchstone of the second step of the discretionary function test is susceptibility to policy analysis.” Cestonaro v. United States, 211 F.3d 749, 753 (3d Cir. 2000).

8. Here, the conduct at issue is the United States’ alleged failure to: safely maintain the sidewalk, inspect and barricade the sidewalk, hire, train, or instruct its agents or employees with respect to the sidewalk, and warn Ms. Hite of the sidewalk's dangerous condition. DI 1 ¶¶ 20, 22. The majority of this “challenged conduct is the [United States’] judgment regarding whether and how to maintain and inspect its brick walkways and whether to warn visitors of the risks associated with travelling over such walkways.” Levitt v. United States, No. 2022 WL 523738, at *3 (E.D. Pa. Feb. 22, 2022). Such conduct is discretionary because various statutes, regulations, and internal policies give the Department of the Interior “discretion on how to best maintain and inspect its parks and on whether and how to warn visitors of potential risks” associated with sidewalks therein. Id. at *3-4; DI 4 at 15-17 (summarizing statutory, regulatory, and policy sources of the Department of the Interior's discretion to maintain and warn pedestrians of sidewalk conditions within Independence National Historic Park). “Nowhere do [these] relevant statutes, regulations, or policies ‘specifically dictate’ how [Independence National Historic Park's] personnel are to inspect and maintain the Park's walkways or post signage warning of the dangers of walking on brick. This is exactly the kind of guidance that the Third Circuit and other district courts within this Circuit have found ‘involved an element of judgment or choice.’ ” Levitt, 2022 WL 523738, at *4 (E.D. Pa. Feb. 22, 2022); see, e.g., Merando, 517 F.3d at 172 (discretionary function exception applied where “controlling statutes, regulations, [or] policies that lead to the creation of the Park Service's [ ] plan did not mandate any particular methods of hazardous tree management”); Whitaker v. United States, 2020 WL 6504551, *2 (E.D. Pa. Nov. 5, 2020) (discretionary function exception barred claims alleging the United States’ “failure to identify and mitigate against the risk of harm to park visitors posed by a crack in a trail” because policies pertaining to the maintenance of national parks did not “dictate a specific manner in which park officials should identify or respond to any safety concerns”).

9. Ms. Hite's allegations that the United States failed to properly hire, train, and instruct its employees also concern discretionary conduct involving elements of judgment and choice. “Federal appellate courts stand in agreement that decisions relating to the hiring, training, and supervision of employees are inherently a discretionary function” because “employment and termination decisions are, as a class, the kind of matters requiring consideration of a wide range of policy factors, including budgetary constraints, public perception, economic conditions, individual backgrounds, office diversity, experience and employer intuition.” Brown v. United States, 2018 WL 741731, at *4 (E.D. Pa. Feb. 7, 2018), aff'd, 823 F. App'x 97 (3d Cir. 2020); see, e.g., Coen v. United States, 2022 WL 1291503, *4 (E.D. Pa. Apr. 29, 2022); Amberg-Blyskal v. Transp. Sec. Admin., 2011 WL 4470883, at *2 n.2 (E.D. Pa. Sept. 26, 2011); Woods v. United States, 2007 WL 3243852, at *5 (D.N.J. Nov. 1, 2007).

10. The final question, then, is whether the above elements of judgement and choice are of the kind that the discretionary function exception was designed to shield. To answer that question, we must decide whether the nature of the conduct at issue is “susceptible to policy analysis.” Merando, 517 F.3d at 165 (cleaned up). We think that it is, because the United States “had to consider how best to use its limited financial and human resources in a manner that balanced visitor safety with visitor enjoyment and conservation of the Park.” Id. at 172. This represents a series of “policy choice[s] this court should not second-guess,” satisfying the second prong of the discretionary function exception test. Id. at 174 (quoting Mitchell v. United States, 225 F.3d 361, 364 (3d Cir. 2000)).

11. Therefore, the United States’ alleged tortious conduct is shielded by the discretionary function exception to the FTCA, and Ms. Hite's claims are not actionable. Lacking subject-matter jurisdiction, we must dismiss her case ² with prejudice. Kissell v. Dep't of Corr., 634 F. App'x 876, 879 (3d Cir. 2015) (dismissal with prejudice proper where amendment would be futile).

FOOTNOTES

1.   In considering a motion to dismiss based on a factual challenge to jurisdiction under Federal Rule of Civil Procedure 12(b)(1), as is the case here, we may consider evidence beyond the pleadings. Hartig Drug Co. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016); S.R.P. v. United States, 676 F.3d 329, 332 (3d Cir. 2012) (same).

2.   As Ms. Hite pointed out in court (DI 11) and in her opposition letter (DI 17), there is a specter of unfairness in today's result because she had the bad luck of falling on a physically unsafe but legally unactionable sidewalk (a type of sidewalk that does not exist on most other blocks in Philadelphia). To this point, we note that the discretionary function exception is a creature of the legislative branch that “marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals” to prevent the “propriety of a discretionary administrative act” from being “tested through the medium of a damage suit for tort.” Varig Airlines, 467 U.S. at 808-10, 104 S.Ct. 2755 (quoting and summarizing Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., 28, 33 (1942) (statement of Assistant Attorney General Francis M. Shea)). That means we must follow it here. See, e.g., In re Elias, 98 B.R. 332, 336 (N.D. Ill. 1989) (“A court has no legitimate authority to revise legislative acts. Therefore, when the legislative branch speaks, as it has done here, we must obey its orders.”).

MURPHY, J.