United States District Court, D. Idaho
DOUGLAS G. HARMON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge United States District Court.
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.
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.
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
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.
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.
Rule 12(b)(1) - Motion to Dismiss for Lack of Subject Matter
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.
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).
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 ...