Aragon v. United States

100 Citing cases

  1. Garcia v. U.S.

    Nos. CIV 04-0498 RB/LCS, CIV 04-0499 RB/LCS (D.N.M. Jun. 30, 2005)

    The applicability of an exception to the FTCA's waiver of immunity presents a jurisdictional issue. Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998). Rule 12(b)(1)of the Federal Rules of Civil Procedure allows dismissal of a complaint for "lack of jurisdiction over the subject matter."

  2. City of Lincoln v. United States

    283 F. Supp. 3d 891 (E.D. Cal. 2017)   Cited 2 times

    Keller v. United States , 771 F.3d 1021, 1023 (7th Cir. 2014) ; S.R.P. ex rel. Abunabba v. United States , 676 F.3d 329, 333 (3d Cir. 2012). At least as many Circuits go the other way, however, and place the burden on the plaintiff to prove the exception does not apply. SeeSpotts v. United States , 613 F.3d 559, 567 (5th Cir. 2010) ; Welch v. United States , 409 F.3d 646, 651 (4th Cir. 2005) ; Aragon v. United States , 146 F.3d 819, 823 (10th Cir. 1998). Others have declined to resolve the issue altogether.

  3. Shea Homes Ltd. Partnership v. United States

    397 F. Supp. 2d 1194 (N.D. Cal. 2005)   Cited 10 times
    Finding that regulation requiring operator to "[t]ake all immediate steps necessary to protect public health and safety, and the environment" does not mandate a specific course of action but "calls for discretionary judgments as to the immediacy and nature of the risk—i.e. what, if any, 'immediate' steps are 'necessary' to 'protect public health and safety, and the environment'—and, if so, judgments as to the substance and timing of those specific steps"

    It "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." Aragon v. United States, 146 F.3d 819, 822 (10th Cir. 1998). In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court established a two-tier analysis for identifying which governmental functions are discretionary for purposes of the exception.

  4. Shanta v. U.S.

    No. CIV 03-0537 RB/RHS (D.N.M. Nov. 24, 2004)

    The applicability of an exception to the FTCA's waiver of immunity presents a jurisdictional issue. Aragon v. United States, 146 F. 3d 819, 823 (10th Cir. 1998). Rule 12(b)(1)of the Federal Rules of Civil Procedure allows dismissal of a complaint for "lack of jurisdiction over the subject matter."

  5. Gould Electronics Inc. v. U.S.

    CIVIL ACTION NO. 99-1130 (E.D. Pa. Jan. 10, 2002)   Cited 1 times

    In Aragon v. United States, 146 F.3d 819, 824 (10th Cir. 1998), the Court examined whether Executive Order 10014 sufficiently prescribed the government's conduct to render the discretionary function exception unavailable. The plaintiffs in Aragon contended that Order 10014 did not permit the Air Force to allow contaminated waste water to run into open ditches around an Air Force base.

  6. GLJ, Inc. v. United States

    505 F. Supp. 3d 863 (S.D. Iowa 2020)   Cited 2 times

    And, other Circuit Courts of Appeal have rejected the Air Force Manual as a source for mandatory directives as to TCE disposal and found the Air Force's TCE disposal during the 1950s and 1960s was discretionary. SeeOSI, Inc. v. United States , 285 F.3d 947, 951–52 (11th Cir. 2002) ; Aragon v. United States , 146 F.3d 819, 823–26 (10th Cir. 1998).

  7. Elder v. U.S.

    312 F.3d 1172 (10th Cir. 2002)   Cited 86 times
    Holding language removing discretion must be specific and mandatory

    They must also first prove that their claims are not based upon actions immunized from liability under the FTCA's discretionary function exception, 28 U.S.C. § 2680(a). See Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998) ("The discretionary function exception poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.") (internal quotation marks omitted). This exception excludes from the FTCA's waiver of immunity those claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty" by a federal agency or government employee.

  8. Taylor v. United States

    Civ. 21-613 GJF/JFR (D.N.M. Dec. 27, 2021)

    “The exception applies even if the governmental employees were negligent.” Aragon v. United States, 146 F.3d 819, 822-23 (10th Cir. 1998) (citing Allen v. United States, 816 F.2d 1417, 1421 (10th Cir. 1987)).

  9. Scarborough v. United States

    Civil Action No. 15-cv-00242-KLM (D. Colo. Mar. 17, 2017)   Cited 3 times

    Thus, a plaintiff must show that the alleged offending conduct did not involve discretionary functions in order to avoid dismissal under Rule 12(b)(1). Aragon v. United States, 146 F.3d 819, 823 (10th Cir. 1998). Courts employ the two-pronged test set forth in Berkovitz v. United States in order to determine whether the discretionary function exception applies: (1) whether there was a prescribed course of action; and (2) whether the action was of the kind that the discretionary function exception was designed to shield.

  10. Clark v. United States

    Civ. No. 12-1160 MV/KBM (D.N.M. Sep. 25, 2014)

    "The exception applies even if the governmental employees were negligent." Aragon v. United States, 146 F.3d 819, 822 (10th Cir. 1998). Further, the exception "poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his [or her] overall burden to establish subject matter jurisdiction."