The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
The survivors of Joseph Bailey initiated this action alleging that the United States' failure to properly warn Mr. Bailey of the existence of a submerged dam in the Yuba River directly resulted in his death. Presently before the Court is the United States' Motion for Summary Judgment, or, in the alternative, Motion to Dismiss for Lack of Jurisdiction. According to Defendant, though the Government has partially waived its sovereign immunity under the Federal Tort Claims Act ("FTCA"), that waiver is inapplicable here. For the following reasons, Defendant's Motion is granted and this action is dismissed.
The relevant facts are undisputed. On May 29, 2005, Mr. Bailey took his two sons rafting down the Yuba River near Marysville, California. During that trip, the Baileys floated over a submerged dam at Daguerre Point. When the family unknowingly went over the dam, the two boys were rescued by bystanders, but Mr. Bailey was sucked under the dam's spill water and drowned.
In April 2005, approximately one month prior to the accident, the United States Army Corps of Engineers ("Army Corps") placed a warning sign 1,500 feet upstream from the submerged dam. Additional signs posted between that warning and the dam stated, inter alia, "Danger-Submerged Dam Ahead Take Out Now," "Raft Portage," and "Danger-Submerged Dam Ahead-Take Out This Side." The Army Corps also installed a buoy equipped with a sign further warning individuals to "Take Out." Because of the size and weight of these signs, their installation required the labor of two to three individuals. Additionally, installation could necessitate that employees "drive through a portion of the river to place the signs on the sand/gravel bar."
Heavy water flows on the Yuba River subsequently resulted in the loss of those recently installed signs, and, by May 19, 2005, Army Corps employees had actual knowledge that the signs were missing. Thus, on May 25, Army Corps personnel attempted to assess the situation near Daguerre Point, but were unable to reach the signs due to the then-existing dangerous water conditions.
The Army Corps finally replaced the missing signs on May 30, the day after Mr. Bailey's death.
Relevant to the determination of when and where these signs were placed was the Army Corps' previously promulgated Sign Standards Manual ("SSM"), which explained the responsibilities and obligations of the Government with respect to sign maintenance. The SSM was a self-proclaimed "guide to good sign maintenance practices" and stated that "[t]he establishment of simple management procedures as described in this section, will help insure that broken damaged or missing signs are identified, repaired or replaced in a timely manner and that preventative maintenance is performed on a regular basis." Supplemental Declaration of Lynn Trinka Ernce ("Supp. Ernce Decl."), Exh. H, C.1. An included worksheet intended to be utilized by maintenance personnel also stated, "It is imperative that damaged signs be reported as soon as the problem is noticed so that the necessary maintenance work can be scheduled and completed in a timely manner." Declaration of Gregory D. Rueb, Exh. A, C.3. Finally, the SSM further advised, "It is also critical that missing or damaged signs be replaced or repaired in a timely manner." Id., C.1.*fn1
Nonetheless, the drafters also acknowledged, "The actual plan for sign placement will be developed for each project site on a site by site basis," and "[i]t is impossible for these guidelines to anticipate all conditions...[T]o effectively sign many locations will be a difficult design and engineering challenge that may require considerable field work and the assistance of District and Division specialists before the most effective approach is developed and refined." Declaration of Jonathan Friedman, Exh. B, 14.45. The SSM also advised that "[p]ersonnel safety is a prime concern in performing sign maintenance. Crew supervisors and members must be familiar with standard health and safety procedures to insure that field tasks are accomplished safely and efficiently." Supp. Ernce Decl., Exh. H, C.3.
In light of the above facts, Plaintiffs contend that the Army Corps was aware that critical warning signs were missing from the Yuba River at the time of Mr. Bailey's death and that, nevertheless, the Government negligently failed to replace those signs prior to the busy Memorial Day weekend. Accordingly, it is Plaintiffs' position that the United States is liable for negligence, negligent infliction of emotional distress, and wrongful death. However, the Government asserts that its decision as to when to replace the signs was protected by the discretionary function exception to its general waiver of immunity under the FTCA. This Court agrees with Defendant and now dismisses for a lack of subject matter jurisdiction.
"When a court determines that the United States is immune from suit under the FTCA, the proper disposition is a dismissal for lack of subject matter jurisdiction." LeCrone v. U.S. Navy, 958 F. Supp. 469, 472 n.1 (S.D. Cal. 1997). In moving to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the challenging party may either make a "facial attack" on the allegations of jurisdiction contained in the complaint or can instead take issue with subject matter jurisdiction on a factual basis ("factual attack"). Thornhill Publishing Co. v. General Tel. & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). If the motion constitutes a facial attack, the Court must consider the factual allegations of the complaint to be true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981); Mortensen, 549 F.2d at 891. If, as here, the motion constitutes a factual attack, however, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Thornhill, 594 F.2d at 733 (quoting Mortensen, 549 F.2d at 891).
Under the FTCA, the federal government waives its sovereign immunity for those claims arising out of "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). However, this general waiver is limited by various exceptions. Terbush v. United States, 516 F.3d 1125, 1128-29 (9th Cir. 2008).
The exception at issue in the instant case, referred to as the "discretionary function exception," exempts the Government from liability that would otherwise result from "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). The purpose of the exception is to prevent "judicial 'second guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium ...