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GATX/AIRLOG CO. v. EVERGREEN INTERN. AIRLINES

November 10, 1999

GATX/AIRLOG CO., ET. AL., PLAINTIFFS,
v.
EVERGREEN INT'L AIRLINES, INC., DEFENDANT. PEMCO AEROPLEX, INC., THIRD-PARTY PLAINTIFF, V. UNITED STATES OF AMERICA, ET. AL., THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Orrick, District Judge.

MEMORANDUM DECISION AND ORDER

In this third-party complaint for indemnity/contribution brought by third-party plaintiff Pemco Aeroplex, Inc. ("Pemco") against defendant the United States of America ("government"), the government now moves to dismiss the case for lack of subject matter jurisdiction. For the reasons set forth hereinafter, the Court grants the motion.

I.

Because the parties are intimately familiar with the facts of the underlying consolidated litigation, the Court will not repeat them here.

Pemco filed its complaint against the United States on August 18, 1999. The complaint alleges three causes of action: 1) negligence; 2) negligent supervision of Steven Fox (a senior aerospace engineer for the Federal Aviation Administration ("FAA")); and 3) negligent retention of Steven Fox.*fn1

II.

The government advances four rationales for dismissing the complaint, three under Rule 12(b)(1) of the Federal Rules of Civil Procedure and one under Rule 12(b)(6). Because the Court has determined that the United States has not waived sovereign immunity for discretionary functions, the Court lacks subject matter jurisdiction over this action and therefore does not reach the other three proffered grounds for dismissal.*fn2

A.

The Court will first address whether the government may avail itself of the discretionary function exception in this case, and accordingly who has the burden of proving whether the discretionary function exception applies.*fn3 The plaintiff bears the burden of persuading the Court that it has subject matter jurisdiction, but in this Circuit the government bears the burden of proving the applicability of the discretionary function exception under the FTCA. Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992); Laurence v. United States, 851 F. Supp. 1445, 1450 (N.D.Cal. 1994).

The Federal Tort Claims Act ("FTCA") authorizes suits against the United States for damages

  "for injury or loss of 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
  accordance with the law of the place where the act or
  omission occurred."

28 U.S.C. § 1346(b).

Congress excepted several important classes of tort claims from the Act's broad waiver. Section 2680(a) of Title 28 of the United States Code, provides that the FTCA shall not apply to

  "[a]ny claim based upon an act or omission of an
  employee of the Government . . . based upon the
  exercise or performance or 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) (emphasis added).

"The discretionary function exception, embodied in the second clause of ยง 2680(a), 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." Varig Airlines, 467 U.S. at 808, 104 S.Ct. 2755 (holding that discretionary function exception precluded tort actions based on FAA's ...


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