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."
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.
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.
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."
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.
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).
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.
“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)).
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.
"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."