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Harmon v. United States

United States District Court, D. Idaho

June 12, 2017



          B. Lynn Winmill Chief Judge United States District Court.


         The Court has before it the United States' Motion to Dismiss (Dkt. 25). The motion is fully briefed and at issue. For the reasons explained below, the Court will grant the motion.


         The facts of this case were recited in the Court's March 24 Memorandum Decision and Order (Dkt. 27) (“Summary Judgment Order”) and will be repeated here only as necessary for resolving the present motion.

         The United States Bureau of Indian Affairs (“BIA”) is responsible for managing and operating the Fort Hall Irrigation Project (“FHIP”), an agricultural irrigation system designed to deliver water to the Fort Hall Reservation in southeastern Idaho. On May 21, 2015, Plaintiff Doug Harmon filed this negligence action against the United States of America, acting by and through BIA, alleging that the Bureau's negligence in overseeing the FHIP resulted in multiple flooding events in 2012 that damaged his farm crops.

         On March 24, 2017, this Court issued a Memorandum Decision and Order granting in part and denying in part the government's Motion for Summary Judgment. The Motion was granted as to Harmon's theories of negligence premised on a voluntary assumption of duty to maintain private farm ditches and those premised on a duty imposed by BIA regulation. The motion was also granted as to Harmon's negligence claim stemming from the September 25, 2012 flooding incident. The Court denied summary judgment as to all remaining issues and claims.

         On April 28, 2017, the United States filed the present Motion to Dismiss, asserting that this Court lacks subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The government argues that the alleged negligent actions are shielded by the “discretionary function exception” to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2660(a), and seeks to dismiss this action in its entirety. Harmon responds that the exception does not apply to the conduct raised in this lawsuit and that the matter should proceed to trial on the disputed facts.


         1. Rule 12(b)(1) - Motion to Dismiss for Lack of Subject Matter Jurisdiction

         A defendant may move to dismiss a complaint for lack of subject matter jurisdiction under Rule 12(b)(1) in one of two ways. See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). The first is known as a “facial” attack, and it accepts the truth of the plaintiff's allegations but asserts that they are insufficient on their face to invoke federal jurisdiction. Id. The second method is known as a “factual” attack, and it does not assume the truth of plaintiff's allegations but instead challenges them by introducing extrinsic evidence, requiring the plaintiff to support his jurisdictional allegations with “competent proof.” Id.

         Here, the government has launched a factual attack. When considering such an attack, the Court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). “Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (internal quotations omitted). Where no evidentiary hearing is held, conflicts in the submissions by the parties must be resolved in the plaintiffs' favor. Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1160 (9th Cir. 2007).

         2. FTCA and Discretionary Function Exception

          “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 474 (1994). The Federal Tort Claims Act represents an unequivocal, but limited, waiver of the government's sovereign immunity. By statute, federal jurisdiction is established over civil suits for money damages against the United States:

for injury or loss property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in ...

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