United States District Court, D. Colorado
EUGENE H. MATHISON, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 33]. The magistrate judge recommends that the Court deny the United States' Motion to Dismiss [Docket No. 21] filed by defendant United States of America ("United States"). On November 12, 2013, defendant filed timely objections [Docket No. 38] to the Recommendation. Therefore, the Court will "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3).
Underlying facts are set forth in the Recommendation and will not be restated here. See Docket No. 33 at 2-4. Defendant objects to the magistrate judge's finding that the "discretionary function" exception to the Federal Tort Claims Act ("FTCA"), see 28 U.S.C. § 1346(b), does not apply to the conduct alleged by plaintiff Eugene H. Mathison. Docket No. 38.
The FTCA waives the United States' sovereign immunity for "personal injury... 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." 28 U.S.C. § 1346(b). The waiver of immunity does not cover 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). A government employee's decision falls within this exception if it (1) "involv[es] an element of judgment or choice" and (2) is "based on considerations of public policy." United States v. Gaubert, 499 U.S. 315, 322-23 (1991) (quoting Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536-37 (1988)). This exception is "designed to protect policymaking by the executive and legislative branches of government from judicial second-guessing." Garcia v. United States Air Force, 533 F.3d 1170, 1176 (10th Cir. 2008) (internal citations omitted).
In determining whether a decision implicates public policy and is therefore the "kind that the discretionary function exception was designed to shield, " see Kiehn v. United States, 984 F.2d 1100, 1103 (10th Cir. 1993), courts "do not consider the employee's subjective intent in exercising the discretion conferred by statute or regulation, but [focus] on the nature of the actions taken and on whether they are susceptible to policy analysis." Garcia, 533 F.3d at 1176 (internal citations omitted). "Discretionary conduct is not confined to the policy or planning level." Gaubert, 499 U.S. at 325. Rather, day-to-day management of an agency or institution "regularly requires judgment as to which of a range of permissible courses is the wisest." Id. However, "[ n ] ot all choices come within the exception." Figueroa v. United States, 64 F.Supp.2d 1125, 1131-32 (D. Utah 1999) (emphasis in original). At times, the "facts of the specific case may overcome the presumption to which the government is entitled under Gaubert " where it is "obvious that a decision implicates none of the public policies that ordinarily inform an agency's decisionmaking." Elder v. United States, 312 F.3d 1172, 1182 (10th Cir. 2002).
For example, in Duke v. Dept. of Agriculture, 131 F.3d 1407, 1410-11 (10th Cir. 1997), the court found that "permit[ting] the government to argue... that decisions-or nondecisions-that involve choice and any hint of policy concerns are discretionary" would "allow the exception to swallow the FTCA's sweeping waiver of sovereign immunity." (quoting Cope v. Scott, 45 F.3d 445, 448-49 (D.C. Cir. 1995)) ("One of the problems... is that nearly every governmental action is, to some extent, subject to policy analysis-to some argument that it was influenced by economics or the like."). In Duke, plaintiff challenged the Department of Agriculture's failure to post signs warning of falling rocks at a campsite, despite the government's knowledge that the rocks posed a threat to campers. Id. at 1410, 1412. The court found that a "warning sign or a sign prohibiting camping at the site because of the danger would cost little" and that the record contained "no evidence... of any social or political justification." Id. at 1412. Accordingly, the court held that the discretionary function exception did not apply. See also Boyd v. United States ex rel. U.S. Army, Corps of Eng'rs, 881 F.2d 895, 898 (10th Cir. 1989) (the government's "alleged failure to warn swimmers of dangerous conditions in a popular swimming area does not implicate any social, economic, or political policy judgments with which the discretionary function exception properly is concerned").
The Bureau of Prisons' October 2007 Program Statement on occupational safety provides that:
Noise assessments and hearing conservation programs are per the OSHA Occupational Noise Exposure regulation, 29 C.F.R. 1910 Subpart G. The Safety Manager conducts an institution-wide survey to determine high-noise areas and operations, as defined in the regulation. HSD's Patient Care Program Statement outlines baseline and annual audiometric testing, per 29 C.F.R. 1910 Subpart G.
Workers conducting operations that exhibit greater than 90 decibels (A scale), for an 8-hour time-weighted average use hearing protection....
A noise level survey is conducted per ACA standards to ensure that housing areas do not have excessive noise sources (e.g., noisy pipes, fans, ice machines, or mechanical rooms) close to inmate sleeping areas.
Docket No. 22 at 13, available at http://www.bop.gov/DataSource/execute/dsPolicyLoc. A separate Program Statement provides that:
Whenever individual occupational noise exposure equals or exceeds the eight-hour time weighted average (TWA) sound level of 85 decibels (and above) measured on the "A" scale (dBA), the institution will initiate a hearing conservation program. At a minimum, the program will meet the requirements of paragraphs (c) through (o) of 29 C.F.R. Part 1910.95.
Docket No. 22-1 at 2.
The parties do not dispute that these Program Statements apply only to occupational noise levels and thus that prison officials had discretion to set the volume level of the speakers placed "[a]long the walkways leading to both sides of the Food Service chow hall, in front of the law library, Multipurpose room and gym on one side and in front of the Commissary, laundry, barber shop, phone room and medical." Docket No. 1 at 10; see Docket No. 39 at 2. The resolution of the United States' motion to dismiss ...