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