Opinion
Case No. 5:22-cv-620-LCB
2023-03-24
Schrade JONES and Carter Gilliam, Plaintiffs, v. UNITED STATES of America and Tennessee Valley Authority, Defendants.
Franklin Taylor Rouse, Conchin Cloud & Cloud, LLC, Huntsville, AL, for Plaintiffs. Michelle Delemarre, DOJ-Civ, Poc Agostinho, Jean, Washington, DC, Don B. Long, III, United States Attorney's Office, Birmingham, AL, for Defendant United States of America. David D. Ayliffe, Office of the General Counsel, Knoxville, TN, Ibrahim Mohamad Berro, James S. Chase, Tennessee Valley Authority, Knoxville, TN, for Defendant Tennessee Valley Authority.
Franklin Taylor Rouse, Conchin Cloud & Cloud, LLC, Huntsville, AL, for Plaintiffs. Michelle Delemarre, DOJ-Civ, Poc Agostinho, Jean, Washington, DC, Don B. Long, III, United States Attorney's Office, Birmingham, AL, for Defendant United States of America. David D. Ayliffe, Office of the General Counsel, Knoxville, TN, Ibrahim Mohamad Berro, James S. Chase, Tennessee Valley Authority, Knoxville, TN, for Defendant Tennessee Valley Authority. OPINION & ORDER LILES C. BURKE, UNITED STATES DISTRICT JUDGE
On a summer night in 2020, Schrade Jones and Carter Gilliam were traversing Lake Guntersville in a small aluminum boat when they collided with an unlit, partially-submerged duck blind at approximately 30 MPH. Both men were left severely injured, but alive. They now sue the United States Government and the Tennessee Valley Authority (TVA) for negligence and wantonness under the Suits in Admiralty Act, 46 U.S.C. § 30901 et seq. In response, Defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks subject matter jurisdiction over Plaintiffs' claims. For the reasons below, the Court grants the motions, dismisses Plaintiffs' claims without prejudice, and provides Plaintiffs leave to amend their complaint.
Defendants alternatively argue that Plaintiffs' claims are not facially plausible and therefore subject to dismissal under Federal Rule of Civil Procedure 12(b)(6). (Doc. 11 at 2); (Doc. 13 at 1). Because Plaintiffs' claims are subject to dismissal for lack of subject matter jurisdiction, see infra Part III, the Court declines to consider the facial plausibility of Plaintiffs' claims.
I. BACKGROUND
Guntersville Lake—an impoundment of the Tennessee River and part of the Tennessee River System—is the largest lake in the State of Alabama. Spanning approximately 75 miles from the Nickajack Dam in Marion County, Tennessee, to Guntersville Dam in Marshall County, Alabama, the lake serves a variety of commercial and recreational purposes for the region. Commercial barges filled with grain, petroleum, and wood products regularly cross the lake as they make their way up and down the Tennessee River. Additionally, thousands of individuals visit the lake every year to boat, swim, fish, hunt, and eagle watch. The Department of the Army Corps of Engineers maintains the lake's commercial navigation channel, while the TVA maintains channels and harbors primarily used for recreational purposes. (Doc. 12-1 at 1).
Guntersville Lake, ENCYCLOPEDIA OF ALA., http://encyclopediaofalabama.org/article/m-3680 (last visited Mar. 17, 2023).
Lake Guntersville, OUTDOOR ALA., https://www.outdooralabama.com/reservoirs/lake-guntersville (last visited Mar. 17, 2023).
TVA Guntersville Dam and Reservoir, TENN. RIVER VALLEY, https://tennesseerivervalleygeotourism.org/entries/tva-guntersville-dam-and-reservoir/130623c5-b868-4122-8d2a-a68664a45259 (last visited Mar. 17, 2023).
Lake Guntersville, TENN. RIVER VALLEY, https://tennesseerivervalleygeotourism.org/entries/lake-guntersville/e7ee147c-7ff4-467c-9906-37d2a7ae6e46 (last visited Mar. 17, 2023). Between 1985 and 1991, the Alabama Wildlife and Freshwater Fisheries' Nongame Wildlife Program released 91 bald eagles into the wild as part of a broader effort to save the species from extinction. Id. Researchers now estimate that Alabama is home to more than seventy-seven bald eagle nests, with about eighteen of them being in or near Guntersville. Id.
"Congress created the TVA—a 'wholly owned public corporation of the United States'—in the throes of the Great Depression to promote the Tennessee Valley's economic development." Thacker v. Tenn. Valley Auth., — U.S. —, 139 S. Ct. 1435, 1439, 203 L.Ed.2d 668 (2019) (quoting Tenn. Valley Auth. v. Hill, 437 U.S. 153, 157, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978)).
On the night of June 5, 2020, Schrade Jones and Carter Gilliam were bowfishing in a sixteen-foot aluminum-hull jon boat on the western side of Lake Guntersville near an area known as Pleasant Hill. (Doc. 19-3 at 5). The boat, which belonged to Jones, was equipped with a navigational running light. Id. At approximately 9:15 p.m., the men departed for a fishing spot on the opposite side of the lake. Id. Gilliam drove, while Jones sat in the front of the boat. Id.
Bowfishing, as Plaintiffs explain, "is a method of fishing where fish are shot with a barbed arrow that is attached with special line to a reel mounted on the bow." (Doc. 1 at 14). The activity "is most often done at night using spotlights that shine down into the water to see the fish." Id.
As they crossed the lake at approximately 30 MPH, the men crashed into a privately-owned, partially-submerged duck blind. Id. at 27.
A duck blind is "[a] shelter, often camouflaged with reeds and grasses, for concealing duck hunters." Duck Blind Definition, YOURDICTIONARY.COM, https://www.yourdictionary.com/duck-blind (last visited Mar. 17, 2023).
Image materials not available for display. The duck blind (pictured left) was unmarked, unlit, and painted olive green; it sat just outside the commercial navigation channel of Lake Guntersville (pictured right). (Doc. 19-1 at 5); (Doc. 19-3 at 8, 27); (Doc. 14-2 at 4). The impact threw Gilliam forward into Jones and knocked both men completely unconscious. (Doc. 19-3 at 27). Sometime later, the men awoke to find themselves still in the boat, but seriously injured. (Doc. 1 at 15). They managed to drive to a nearby boathouse and call for assistance. (Doc. 19-3 at 27). An ambulance later transported them to the Huntsville Hospital where they received treatment for their injuries. (Doc. 19-1 at 13); (Doc. 19-3 at 27).
An Alabama Boating Accident Report reflects that Gilliam's injuries included a fractured skull, a broken shoulder, and lacerations to the head; Jones's injuries included lacerations to the head, a broken jaw, broken ribs, and a punctured lung. (Doc. 19-3 at 29). Jones was hospitalized for his injuries. Id.
Gilliam and Jones now sue the Government and the TVA for negligence and wantonness under the Suits in Admiralty Act, 46 U.S.C. § 30901 et seq. (Doc. 1 at 2, 15-21). In their complaint, Plaintiffs allege that the duck blind "was a hazardous obstruction to navigation" and that "general maritime law" imposed a duty on the Government and the TVA to mark, warn of, or remove such obstructions in Lake Guntersville. Id. at 15, 19. Defendants move to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). (Doc. 11 at 1); (Doc. 13 at 1). They argue that the doctrine of sovereign immunity bars Plaintiffs' claims. (Doc. 11 at 2); (Doc. 13 at 1).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) provides that a party may move to dismiss a claim for lack of subject matter jurisdiction. Such motions come in two forms: factual attacks and facial attacks. Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1230 (11th Cir. 2021). A factual attack challenges the very facts giving rise to subject matter jurisdiction, whereas a facial attack alleges that the facts as pleaded do not establish subject matter jurisdiction. Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237 (11th Cir. 2002). When reviewing a facial attack, a court must consider only the facts contained in the complaint and presume they are true. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). A court makes no such presumption and may consider and weigh extrinsic evidence when reviewing a factual attack, so long as the attack does not implicate the merits of the plaintiff's claims. Gardner v. Mutz, 962 F.3d 1329, 1340 (11th Cir. 2020); Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam).
Simply put, subject matter jurisdiction is a court's power to consider the merits of a claim. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999).
III. DISCUSSION
The Court must address two threshold issues before considering the sovereign immunity issue presented by Defendants' motions. First, the motions constitute factual attacks on subject matter jurisdiction. An attack is factual when it relies on extrinsic evidence and does not assert a lack of subject matter jurisdiction "solely on the basis of the pleadings." Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). Here, the parties provide and rely on extrinsic evidence in making their arguments regarding subject matter jurisdiction. (Doc. 12-1 at 1); (Doc. 14-1 at 1); (Doc. 14-2 at 1); (Doc. 19-1 at 1); (Doc. 19-2 at 1); (Doc. 19-3 at 1). Accordingly, the motions constitute factual attacks, and the Court reviews them as such.
For the sake of clarity, the Court notes that Defendants' factual attacks on jurisdiction do not implicate the merits of Plaintiffs' claims. Such intertwinement occurs when "a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief." Garcia v. Copenhaver, Bell & Assocs., M.D.'s, P.A., 104 F.3d 1256, 1262 (11th Cir. 1997). As explained further below, Plaintiffs bring their claims under the Suits in Admiralty Act, which provides only a basis for jurisdiction, not a cause of action. Accordingly, the Court may consider and weigh extrinsic evidence when ruling on Defendants' motions.
Second, Plaintiffs' claims fall within the scope of the Court's maritime jurisdiction. A federal court has subject matter jurisdiction only over cases that fall within the Constitution's limits and a jurisdictional statute. Patel v. Hamilton Med. Ctr., Inc., 967 F.3d 1190, 1193 (11th Cir. 2020). Article III, Section 2, Clause 1 of the Constitution provides in relevant part that "[t]he judicial power shall extend . . . to all cases of admiralty and maritime jurisdiction." Under 28 U.S.C. § 1333(1), federal district courts have original jurisdiction of "[a]ny civil case of admiralty or maritime jurisdiction."
The parties are in accord on this point. (Doc. 1 at 2, 15, 18); (Doc. 12 at 13-16); (Doc. 14 at 14-15).
A tort claim sounds in maritime—and is thus within the scope of Article III and § 1331—when: (1) "the incident occurred on navigable water, or the injury was caused by a vessel on navigable water"; and (2) "the incident is connected with maritime activity." Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359, 1365 (11th Cir. 2018). Under the first requirement, a waterway is "navigable" if it "is capable of being used in commerce." Aqua Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d 1055, 1062 (11th Cir. 2013) (quoting Richardson v. Foremost Ins. Co., 641 F.2d 314, 316 (5th Cir. 1981), aff'd, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982)). To satisfy the second requirement, an incident must bear "a substantial relationship to traditional maritime activity" and have "a potentially disruptive impact on maritime commerce." Buland v. NCL (Bahamas) Ltd., 992 F.3d 1143, 1149 (11th Cir. 2021) (quoting Caron, 910 F.3d at 1365).
In this case, Plaintiffs were injured on Lake Guntersville, which is capable of being used in commerce and therefore a "navigable waterway" for purposes of the Court's maritime jurisdiction. Additionally, the accident occurred while Plaintiffs were navigating a boat, which is "the very paradigm of traditional maritime activity." Also worth mentioning is that, throughout their complaint, Plaintiffs emphasize that "[t]his is a case of admiralty and maritime jurisdiction" and that their claims arise under "general maritime law." (Doc. 1 at 2, 15, 18). Accordingly, the Court has no trouble concluding that Plaintiffs' claims are maritime in nature and fall within the scope of the Court's maritime jurisdiction.
(Doc. 19-3 at 4).
See, e.g., Vinson v. Cobb, 501 F. Supp. 2d 1125, 1127 (E.D. Tenn. 2007) (finding that the Tennessee River is "a navigable waterway of the United States"); Vanderpool v. Edmondson, 2002 WL 32059024, at *2 (E.D. Tenn. July 31, 2002) (finding that a lake system of the Tennessee River is a navigable waterway).
(Doc. 19-3 at 27).
Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1546 (11th Cir. 1994); see also Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982) (holding that navigating a private vessel "on navigable waters has a significant relationship with maritime commerce").
Now, the Court turns to the pressing issue: whether sovereign immunity bars Plaintiffs' claims. The doctrine of sovereign immunity represents the long-standing principle of law that the Government, as sovereign, is immune from suit unless it consents to be sued. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 281 (2011) (explaining that we are "heirs to a system in which the sovereign, the king, was not amenable to suit"). The doctrine acts as a complete bar to subject matter jurisdiction, meaning that a reviewing court must dismiss a claim for lack of jurisdiction if sovereign immunity applies. Foster Logging, Inc. v. United States, 973 F.3d 1152, 1157 n.3 (11th Cir. 2020).
The Suits in Admiralty Act, 46 U.S.C. § 30903(a), provides a limited waiver of sovereign immunity: "In a case in which, . . . if a private person or property were involved, a civil action in admiralty could be maintained, a civil action in admiralty in personam may be brought against the United States or a federally-owned corporation" (one "in which the United States owns all the outstanding capital stock"). 46 U.S.C. §§ 30902, 30903. The Act does not provide a cause of action against the Government, but rather constitutes the sole jurisdictional basis for maritime claims, not involving a public vessel, brought against the Government or a federally owned corporation. Cranford v. United States, 466 F.3d 955, 958 (11th Cir. 2006); Kasprik v. United States, 87 F.3d 462, 465 (11th Cir. 1996).
Public Vessels Act, 46 U.S.C. § 31101 et seq., provides a waiver of sovereign immunity for maritime claims that are brought against the Government and involve a public vessel. Cranford, 466 F.3d at 958.
Plaintiffs sue the United States Government and the TVA—a federally owned corporation—for negligence and wantonness. (Doc. 1 at 2, 15, 18). As explained above, Plaintiffs' claims sound in maritime and fall within the Court's maritime jurisdiction. Additionally, this case involves only a private vessel, not a public one. (Doc. 19-3 at 5). Plaintiffs' claims, therefore, must proceed, if at all, pursuant to the SAA's waiver of immunity.
Springer v. Bryant, 897 F.2d 1085, 1089 (11th Cir. 1990) ("The TVA is a federally owned corporation that acts as an agency or instrumentality of the United States."). The Court pauses to recognize that, although the TVA technically has no capital stock, courts routinely treat the TVA and similar governmental entities as "federally owned corporations." E.g., Gov't Nat. Mortg. Ass'n v. Terry, 608 F.2d 614, 621 (5th Cir. 1979) ("The fact that Congress in creating an entity like Ginnie Mae did not engage in the mechanical and formal process of issuing stock and then purchasing it does not detract from the conclusion that the Government controls Ginnie Mae" for purposes of 28 U.S.C. § 1349 (providing federal district courts with jurisdiction over any civil action against a corporation in which the United States owns more than half of the capital stock)); Monsanto Co. v. Tenn. Valley Auth., 448 F. Supp. 648, 652 (N.D. Ala. 1978) (finding that the TVA is a federally owned corporation for purposes of 28 U.S.C. § 1349 despite the fact "that technically TVA has no capital stock and thus neither the government nor anyone else owns any such stock"); Latch v. Tenn. Valley Auth., 312 F. Supp. 1069, 1073 (N.D. Miss. 1970) (explaining that federal courts "have original jurisdiction of all cases involving federally-created corporations where the United States owns more than half the capital stock, as is the case with TVA"). The Court relies on these decisions, which are both persuasive and practical, in concluding that the TVA is a "federally owned corporation" for purposes of the SAA, despite the fact that it has no capital stock and therefore neither the Government nor anyone else owns any such stock.
The law in this Circuit is that the SAA's waiver of sovereign immunity is subject to the discretionary-function exception found in the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a). Cranford, 466 F.3d at 958. That exception "preserves the United States' sovereign immunity against '[a]ny claim . . . 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 [United States], whether or not the discretion involved be abused.' " Mid-South Holding Co. v. United States, 225 F.3d 1201, 1205 (11th Cir. 2000) (alterations in original) (quoting 28 U.S.C. § 2680(c)). A plaintiff bears the burden to prove that the exception does not apply when it is raised as part of a factual attack on jurisdiction. Slappey v. U.S. Army Corps of Eng'rs, 571 F. App'x 855, 856 (11th Cir. 2014) (per curiam).
As the Supreme Court has explained, the discretionary-function exception "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." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).
Plaintiffs maintain that the Court is not bound to follow Eleventh Circuit precedent holding that the discretionary-function exception found in the FTCA is applicable to claims brought pursuant to the SAA. Their reasoning is twofold. First, they contend that such precedent is no longer good law following the Supreme Court's decision in Thacker v. Tennessee Valley Authority, — U.S. —, 139 S. Ct. 1435, 203 L.Ed.2d 668 (2019). (Doc. 19 at 25-29). In Thacker, the Supreme Court held that the discretionary-function exception does not apply to tort claims brought against the TVA under its sue-and-be-sued clause, 16 U.S.C. § 831c(b). Thacker, 139 S. Ct. at 1442-43. The Court did not consider whether the discretionary-function exception applies to maritime claims brought pursuant to the SAA. Thus, Thacker is inapplicable to this case.
Second, Plaintiffs assert that the Eleventh Circuit lacked the constitutional authority to incorporate the FTCA's discretionary-function exception into the SAA. (Doc. 19 at 33-37). They reason that the judiciary lacks the power to carve out exceptions to a statutory waiver of sovereign immunity. Id. at 37. Evening assuming, arguendo, that Plaintiffs are correct, the Court must follow binding precedent "unless and until" it is overruled by the Eleventh Circuit sitting en banc or the Supreme Court. And neither the en banc Eleventh Circuit nor the Supreme Court has overruled the binding precedent in this Circuit that the SAA's waiver of sovereign immunity is subject to the discretionary-function exception. The Court therefore must reject Plaintiffs' argument and apply that precedent.
United States v. Vega-Castillo, 540 F.3d 1235, 1237 (11th Cir. 2008) (per curiam); accord United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003).
To determine whether the discretionary-function exception applies in any given case, courts employ a two-part test. Foster Logging, Inc., 973 F.3d at 1157. First, a court asks whether the challenged conduct involves "an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (quoting Berkovitz ex rel. v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988)). Second, if the answer is yes, the court asks "whether that judgment is of the kind that the discretionary function exception was designed to shield." OSI, Inc. v. United States, 285 F.3d 947, 950 (11th Cir. 2002) (quoting Gaubert, 499 U.S. at 322, 111 S.Ct. 1267). Here, the crux of Defendants' motion to dismiss is that the discretionary-function exception bars Plaintiffs' claims. The Court considers that issue below.
A. Whether Defendants' conduct involved an element of judgment.
Defendants' challenged conduct involved an element of judgment or choice. To determine whether the discretionary-function exception applies, a reviewing court must first "ascertain the nature of the challenged conduct and assess whether it involved an element of judgment or choice." Mid-South Holding Co., 225 F.3d at 1205. Conduct involves an element of judgment or choice unless "a federal statute, regulation, or policy specifically prescribes a course of action embodying a fixed or readily ascertainable standard." Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997) (per curiam) (emphasis omitted) (quoting Autery v. United States, 992 F.2d 1523, 1529 (11th Cir. 1993)).
In this case, the challenged conduct is Defendants' failure to mark, warn of, and remove the duck blind. (Doc. 1 at 13-15, 19); (Doc. 19 at 44-45). Plaintiffs identify no statute, regulation, or policy—and the Court is aware of none—that specifically requires the Government or the TVA to mark, warn of, or remove a privately-owned structure located outside the commercial navigation channel of Lake Guntersville. Tellingly, perhaps, Plaintiffs do not respond to Defendants' arguments that the challenged conduct was discretionary in nature. (Doc. 19 at 44-47); (Doc. 32 at 15-16). Thus, the Court concludes that Defendants' challenged conduct involved an element of judgment or choice.
B. Whether Defendants' judgment is of the kind that the discretionary-function exception is designed to shield.
Defendants' decision not to mark, warn of, or remove the duck blind is the kind of judgment that the discretionary-function exception is designed to shield. The purpose of the discretionary-function exception is "to prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). To determine whether the exception is designed to shield against a particular judgment or choice, a reviewing court must "ask whether the judgment or choice is grounded in considerations of public policy." Cranford, 466 F.3d at 958. The inquiry is an objective one that focuses exclusively "on the nature of the actions taken and on whether they are susceptible to policy analysis." Gaubert, 499 U.S. at 322, 111 S.Ct. 1267. Neither the subjective intent of any government agent nor the actual weighing of policy considerations is relevant to the analysis. OSI, Inc., 285 F.3d at 950.
Courts routinely find that governmental decisions regarding whether to mark, warn of, or remove obstructions in navigable waterways involve social, political, and economic policy considerations and are therefore the type of decisions that the discretionary-function exception is designed to shield. E.g., Cranford, 466 F.3d at 960 (holding that the discretionary-function exception "applies to decisions of federal officials in marking and choosing not to remove a submerged wreck" because such decisions "involve social, political, and economic policy considerations"); Bearce v. United States, 614 F.2d 556, 560 (7th Cir. 1980) (holding that the United States Coast Guard's decision not to erect a light at the end of a breakwater on the Chicago Harbor fell within the discretionary-function exception because governmental decisions to construct aids to navigation require "policy judgments concerning the public interest" and "budgetary restraints"); ARGUSEA LDC v. United States, 622 F. Supp. 2d 1322, 1330 (S.D. Fla. 2008) ("[I]t is clear that the establishment, maintenance, and operation of aids to navigation are precisely the types of conduct and judgments that the discretionary function exception is designed to shield.").
The Tenth Circuit's decision in Tew v. United States, 86 F.3d 1003 (10th Cir. 1996) is particularly instructive. There, Robert Tew drowned in the Illinois River when his raft capsized after passing over an underwater roadway and low-water dam constructed by a private citizen without governmental approval. Id. at 1004. The Department of the Army Corps of Engineers was aware of the structure at the time of the accident, but neither the Corps nor the United States Coast Guard "had placed any signs or markers on the river warning of the danger." Id. Tew's mother and the representatives of his estate brought suit against the Government under the Federal Tort Claims Act and the SAA, alleging that the Corps and Coast Guard negligently failed to mark or remove the structure from the river. Id. The district court dismissed the plaintiffs' claims on the grounds that the alleged negligence fell within the discretionary-function exception. Id.
The Tenth Circuit affirmed. Id. In doing so, the court found that the plaintiffs had pointed to no authority imposing a specific duty on the Corps or the Coast Guard to mark or remove underwater structures. Id. at 1005-07. The court then found that the decision not to mark or remove the structure was "properly based on public policy considerations," such as economic and personnel limitations of the Corps and Coast Guard. Id. at 1006-07. For these reasons, the Tenth Circuit held that the Government's alleged negligence fell within the discretionary-function exception and that, as a result, the doctrine of sovereign immunity barred the plaintiffs' claims. Id. at 1007.
Like the alleged negligence in Tew, Defendants' decision not to mark, warn of, or remove the duck blind necessarily involves social, political, and economic policy considerations. For example, when determining whether to mark or remove an obstruction to navigable waters, Defendants might have to weigh the needs and interests of commercial mariners against those of recreational boaters. Defendants might also be required to calculate political and environmental risks, while keeping in mind that they are finite entities with limited resources. Finally, Defendants might need to balance risks to boater safety with recreational-use opportunities. In sum, Defendants' decision not to mark, warn of, or remove the duck blind is the type of decision that the discretionary-function exception is designed to shield. The Court therefore finds that the exception applies to Plaintiffs' claims.
IV. CONCLUSION
The doctrine of sovereign immunity bars Plaintiffs' "general maritime" claims against the Government and the TVA. The Court thus grants Defendants' motions (Docs. 12 & 14) and dismisses Plaintiffs' claims without prejudice under Federal Rule of Civil Procedure 12(b)(1).
One final thing. The Court believes that the core facts of this suit might give rise to a cognizable claim if Plaintiffs make certain amendments to their complaint. Such amendments, for example, could include proceeding under a different jurisdictional statute; alleging non-maritime claims; or dropping or adding parties. The Court therefore grants Plaintiffs leave to amend their complaint. Should Plaintiffs fail to file an amended complaint by April 14, 2023, the Court will enter a final judgment in accordance with this opinion and direct the Clerk of Court to close this case.
DONE and ORDERED March 24, 2023.