UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATALIE T. HSIEH, et al.,
Plaintiffs,
Civil Action No. 06–1218 (CKK)
v.
CONSOLIDATED ENGINEERING
SERVICES, INC., et al.,
Defendants.
MEMORANDUM OPINION
(March 26, 2010)
Plaintiff Matthew M. Hsieh brings this suit on behalf of himself and his minor daughter,
Natalie T. Hsieh, against Defendants the United States of America and the General Services
Administration (“GSA”) (collectively the “Federal Defendants”) and Consolidated Engineering
Services, Inc. (“CESI”) (together with the Federal Defendants, “Defendants”), a contractor that
contracted with GSA to perform maintenance and repairs on the Heating Operation and
Transmission District (“HOTD”) Steam Distribution Complex (“SDC”) located in Washington,
D.C. and owned by the United States. Plaintiffs allege that they sustained severe burns when
they were struck by a vapor emitted from a sidewalk grate as Mr. Hsieh pushed his daughter over
the grate in a stroller and that their injuries were caused by Defendants’ joint and several
negligence.
Defendant CESI has brought a cross-claim against the Federal Defendants seeking
indemnification and/or contribution in the event that any damages are imposed upon CESI based
on Plaintiffs’ claims. CESI has also asserted a counterclaim against Mr. Hsieh, alleging
contributory negligence and seeking contribution from Mr. Hsieh in the event that damages are
imposed upon CESI. The Federal Defendants have likewise asserted a cross-claim against CESI,
seeking contractual and/or common law indemnity and/or contribution from CESI in the event
that any damages are imposed upon the Federal Defendants.
Presently pending before the Court is the Federal Defendants’ [87] Supplemental Motion
for Summary Judgment, which focuses on the applicability of the discretionary function
exception to the Federal Tort Claims Act (“FTCA”) 28 U.S.C. § 2671, et seq. The Federal
Defendants argue that Plaintiffs’ and CESI’s remaining claims against the United States and
GSA are barred by the discretionary function exception to the FTCA. CESI and Plaintiffs both
oppose the Federal Defendants’ motion. In addition, Plaintiffs have filed a [91] Motion to Strike
Exhibits 7, 8 and 9 attached to the Federal Defendants’ Supplemental Motion for Summary
Judgment, which is opposed by the Federal Defendants. Plaintiffs contend that the exhibits
should be stricken from the record because they contain new, previously undisclosed information
that is beyond the scope of discovery in this case.
The Court has thoroughly reviewed the pending motions, the parties’ responsive briefing
as well as the attachments thereto, the relevant statutes and case law, and the entire record herein.
For the reasons set forth below, Plaintiffs’ [91] Motion to Strike Exhibits 7, 8 and 9 is DENIED.
The Court, however, shall provide Plaintiffs and CESI an opportunity to conduct discovery with
respect to the newly submitted exhibits to the extent the material contained therein is relevant to
the Court’s determination of whether the discretionary function exception applies.
In addition, with respect to the Federal Defendants’ [87] Supplemental Motion for
Summary Judgment, the Court finds that the Federal Defendants’ decisions regarding the
2
frequency of inspections and whether to warn the public of a hazardous condition at Manhole 42
are not exempt under the FTCA’s discretionary function exception, and the Court therefore has
jurisdiction to entertain Plaintiffs’ claims and CESI’s cross-claim to the extent both are based on
such allegations. Accordingly, the Federal Defendants’ [87] Supplemental Motion for Summary
Judgment is DENIED with prejudice to the extent they argue that decisions regarding the
frequency of inspections and whether to warn of a specific hazard present at Manhole 42 are
subject to the discretionary function exception. The Court is inclined on the present record,
however, to find that the Federal Defendants’ decisions regarding the design of the SDC —
including both decisions relating to physical alterations and the addition of new equipment — are
exempt under the FTCA’s discretionary function exception as well as decisions regarding the use
of non-destructive examinations. Nevertheless, because this determination rests, at least in part,
on the newly-submitted material objected to by Plaintiffs, the Court shall withhold making a final
determination until Plaintiffs and CESI have had an opportunity to take discovery on the new
material. Accordingly, the Federal Defendants’ [87] Supplemental Motion for Summary
Judgment is DENIED WITHOUT PREJUDICE to the extent they argue that the discretionary
function exception applies to decisions relating to the SDC design and whether to use non-
destructive examinations. The Federal Defendants may file a renewed motion on only this issue
once the parties have had an opportunity to conduct discovery on the newly-submitted
declarations.
I. BACKGROUND
The Court assumes familiarity with, and shall not repeat herein, the entire factual and
procedural background of this case, which has been extensively discussed by this Court in its
3
prior decision issued on August 7, 2008, see Hsieh v. Consolidated Eng’g Servs., Inc., 569 F.
Supp. 2d 159 (D.D.C. 2008). The Court shall instead briefly summarize only those key facts
necessary to provide the proper context for resolution of the parties’ present motions. As the
parties themselves have largely relied on the Court’s previous factual findings in setting forth the
general background facts relevant to this case, the Court shall do the same and shall cite to its
August 7, 2008 Memorandum Opinion where appropriate.
In addition, the Court notes once again that it strictly adheres to the text of Local Civil
Rule 7(h)(1). As such, in resolving the pending summary judgment motion, this Court “assumes
that facts identified by the moving party in its statement of material facts are admitted, unless
such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”
LCvR 7(h)(1). In the instant case, the Federal Defendants have submitted a statement of material
facts in support of their Supplemental Motion for Summary Judgment, and both Plaintiffs and
CESI have responded with an opposing statement of material facts. Given the nature of the
present inquiry, the parties’ statements focus almost exclusively on the various conclusions
reached by the parties’ respective experts as to the likely causes of Plaintiffs’ alleged injuries.
Accordingly, while the parties continue to dispute the underlying merits of the various expert
opinions regarding the potential cause(s) of the system failure that led to Plaintiffs’ injuries, the
Federal Defendants have — for the purposes of their present motion — refrained from
challenging the validity of the conclusions reached by the Plaintiffs’ and CESI’s experts. As
required, the Federal Defendants instead focus on the alleged causes and remedies identified by
Plaintiffs’ and CESI’s experts and address whether the alleged theories of recovery in this case
are barred by the discretionary function exception to the FTCA. As such, while the Court has
4
relied on the parties’ statements to identify the relevant portions of the experts’ deposition
testimony and reports, for clarity’s sake, the Court shall cite directly to the record rather than to
the parties’ statements when setting forth the relevant expert opinions.
A. Factual Background
The instant lawsuit arises from alleged injuries sustained by Mr. Hsieh and his then three-
and-a-half year old daughter, Natalie, on September 11, 2004, when Plaintiffs were walking near
10th Street and Pennsylvania Avenue, NW, in downtown Washington, D.C. Plaintiff noticed a
vapor emanating from a grate in the sidewalk near where he was standing, which grate was
located over a manhole — specifically, Manhole 42 — but “didn’t think much of it.” He
subsequently walked over the grate while pushing his daughter in her stroller. Plaintiffs allege
that they both suffered severe burns when they were struck by vapors1 emitted from the grate
over Manhole 42. Hseih, 569 F. Supp. 2d at 165-66.
Manhole 42 is part of the Steam Distribution Complex, referred to herein as the SDC,
which consists of approximately seven miles of tunnels and five miles of direct-buried pipelines
that supply 250-psi saturated (406 degrees F) steam to approximately 100 government buildings
and monuments in downtown Washington, D.C. Id. at 167. At the time of the incident in
question, CESI had assumed contractual responsibility for maintenance and repair services for
the SDC. Id. at 167-68. Specifically, the SDC Contract delegated to CESI the responsibility for
1
One of Plaintiffs’ two expert witnesses, William H. Bishop, has concluded that hot
water — not steam or vapor — splashed out of Manhole 42, directly causing Plaintiffs’ injuries.
See Fed. Defs.’ MSJ, Ex. 5 (Deposition of William H. Bishop at 29:16-30:23). This dispute,
however, is not material to the instant Memorandum Opinion, and the Court, for convenience
and consistent with the parties’ briefing, therefore refers to the substance that was allegedly
emitted from the grate over Manhole 42 on September 11, 2004 as “vapor.”
5
inspecting the SDC and performing preventative maintenance and repairs under $1,000, but
provided that GSA retained responsibility for capital improvements and repairs over $1,000. Id.
at 163, 168-69.
As this Court previously explained in its August 7, 2008 Memorandum Opinion, the
parties appear to agree that Plaintiffs’ injuries were likely caused by water getting into the vault
in Manhole 42, reaching the level of the steam pipes, boiling, and creating vapor that escaped
through the grate above Manhole 42. Id. at 170. A significant factual dispute exists, however, as
to what initially caused the water to get into the vault in Manhole 42. See id. In particular, a
genuine issue exists as to whether that water came from (a) a leaking or malfunctioning valve, (b)
a larger systemic problem of water leaking from an external source into the SDC, or (c) both. Id.
at 163. As the Court observed,
this factual question is fundamental because identifying and repairing a leaking valve
weld was arguably within the scope of responsibility delegated to CESI under the
SDC, which included inspection, preventative maintenance, and minor repairs for all
portions of the SDC. In contrast, identifying the source of recurrent water leaks into
the SDC and preventing future leaks would undoubtably have been within the scope
GSA’s retained responsibility for and discretion over capital improvements and
major repairs.
Id. at 175-76.
Despite further briefing by the parties, it is clear that a material dispute remains as to this
key causal inquiry. Plaintiffs have retained two expert witnesses, William H. Bishop and Larry
D. Smith, to opine on the possible causes of Plaintiffs’ injuries and the actions that, if taken, may
have prevented the emission of hot vapor from Manhole 42. CESI has also retained an expert
6
witness, Joseph R. Reynolds.2 Although the exact cause of the system failure may ultimately
prove impossible to confirm given the lack of physical evidence in this case,3 the parties’ experts
have each provided their conclusions on the likely causes of Plaintiffs’ injuries. The Court shall
briefly summarize each expert’s testimony in turn below.
1. Mr. Bishop
Mr. Bishop opines that Plaintiffs were injured when a steam line in Manhole 42 failed —
either from corrosion or from malfunction of a pressure valve — thereby causing hot water to
issue forth and splash out of the grate. See Fed. Defs.’ MSJ, Ex. 5 (Feb. 2, 2007 Bishop Report
at p. 1).4 He concludes that in order to prevent leaks, such as that at issue, that appear to have
occurred as the result of corrosion and which are unpredictable in nature, the SDC system
2
In addition, the Court notes that the Federal Defendants have retained an expert, Edwin
P. Zucker, to opine as to the possible causes of the vapor emission at issue. See Fed. Defs.’ MSJ,
Ex. 1 (Zucker Rep.). As this Memorandum Opinion focuses solely on whether Plaintiffs’ and
CESI’s remaining claims against the Federal Defendants are barred by the discretionary function
exception, Mr. Zucker’s opinions are not at issue.
3
As the Court has previously explained, when the repair on Manhole 42 was conducted
after the September 11, 2004 incident, the decision was made to replace both the valve and the
piping to ensure that the problem was corrected; the original pipe/valve assembly that was
removed was subsequently discarded or lost. Hsieh, 569 F. Supp. 2d at 170. Consequently, both
Plaintiffs’ and CESI’s experts agree that the lack of physical evidence in this case makes it
impossible to confirm the exact cause of the system failure. See, e.g., Fed. Defs.’ MSJ at Ex. 5
(Bishop Dep. at 83:6-7 (“I haven’t come to any conclusions as to what caused the damn thing.”)
& at 87:1 (testifying that “[t]here are hundreds of different scenarios” that may have led to
Plaintiffs’ injuries)); id., Ex. 6 (Mar. 29, 2007 Smith Rep. at p. 4, ¶ 8 (stating that he “was unable
to determine the root cause of the failure of the weld since the valve with the failed weld was not
retained”); id., Ex. 4 (Reynolds Rep. at p. 36, ¶ 3 (“Due to the unavailability of physical evidence
to examine and test, the possible cause of the alleged weld and/or pipe failure may never be
known . . . .”).
4
Unlike Mr. Smith and Mr. Reynolds, Mr. Bishop does not believe that the vapor
emission was caused — either in whole or in part — by groundwater leaking into Manhole 42.
See Fed. Defs.’ MSJ, Ex. 5 (Bishop Dep. at 83:15-17, 100:7-22).
7
“should have been designed so that escaping steam or hot liquids would be vented or directed to
a safe location where persons such as the Hsiehs . . . would not be harmed.” Id. For example, he
suggests that the manhole should have been designed so that excess water was piped to an
outside source, such as a storm drain or, if an outside source was not readily available, into the
corner of a manhole. Fed. Defs.’ MSJ, Ex. 5 (Bishop Dep. at 35:17-36:2). At deposition, Mr.
Bishop further opined that the system should have been designed to prevent possible pipe
breaches by placing the smaller pipes underneath the larger pipes. Id. at 56:23-57:4. Finally, Mr.
Bishop suggests that: (a) the water that accumulated in the manhole from the failed steam line
should have been “drained,” either by a “passive” or “active” drain, see id. (Bishop Dep. at
29:21-23); and (b) pressure sensors should have been installed inside each connection or
building, although he acknowledges that he is not aware whether such sensors were or were not
installed at the time of the incident, id. at 30:3-15.
2. Mr. Smith
Mr. Smith, Plaintiffs’ second expert, concludes that the emissions from Manhole 42 were
likely caused either: (a) when a steam line/drip line failed as a result of corrosion and/or a failed
weld, see Fed. Defs.’ MSJ, Ex. 6 (Feb. 2, 2007 Smith Rep. at p. 2, ¶ 2); id. (Mar. 29, 2007 Smith
Rep. at p. 4, ¶ 7); or (b) when water entered the manhole from an outside source and came into
contact with the steam pipes, causing steam to emit out of the manhole, see id. (Mar. 29, 2007
Smith Rep. at p. 4, ¶ 7); id. (Apr. 23, 2007 Smith Rep. at p. 11, ¶ 12). Mr. Smith opines that the
“steam system should have been designed and constructed so that the potential failure of a weld
or valve would not result in the release of steam through a grate.” Id. (Feb. 2, 2007 Smith Rep. at
p. 3, ¶ 4). Specifically, he suggests that steel plates could have been used to cover the manholes
8
or steam enclosures should have been employed around areas that were deemed most susceptible
to failure. See id. (Smith Dep. at 33:20-34:8). In addition, he suggests that the following
measures, if taken, may have prevented the steam line/drip line from failing and/or the
accumulation of outside water in the manhole: (a) requiring increased inspections on the affected
valves and piping, see id. (Mar. 29, 2007 Smith Rep. at p.4, ¶ 9); (b) requiring non-destructive
(NDE) examinations each time a pipe in the SDC became surrounded by water, see id. (Smith
Dep. at 23:4-12, 26:4-28:15); and (c) making certain “long-term repairs/design changes,” such as
the installation of water level alarms and/or sump pumps or water proofing the vaults, see id.
(Apr. 23, 2007 Smith Rep. at p. 10); see also id. (Smith Dep. at 60:10-14).
3. Mr. Reynolds
CESI’s expert, Mr. Reynolds, initially opined that the steam emissions could have been
caused by either: (a) a weld and/or pipe failure, which could have resulted from water hammer,
corrosion, or fatigue, see Fed. Defs.’ MSJ, Ex. 4 (Reynolds Rep. at p. 36, ¶¶ 3, 4, 6 & 7); or (b)
water accumulating in the manhole and reaching the level of the steam pipes, causing the water
to boil and produce the emitted steam, see id. at p. 36, ¶ 5. Mr. Reynolds later clarified at
deposition, however, that he believes the vapor emissions in this case were primarily caused by
water from an external source entering into the vault and coming into contact with the steam
pipes. Id., Ex. 4 (Reynolds Dep. at 39:19-40:7, 66:1-5). According to Mr. Reynolds, “[w]ater
intrusion into tunnels and manholes [in the SDC] is endemic,” and “[m]ost, if not all, manholes
generally have water in them at any given time.” Id., Ex. 4 (Reynolds Rep. at p. 4). Mr.
Reynolds further concludes that in this instance the water accumulation was caused by an
“unpredictable and fortuitous event.” Id., Ex. 4 (Reynolds Dep. at 142:4-14). He suggests that
9
the water accumulation could have been prevented by sealing the vault and/or by installing a
water pump in the vault. Id. at 104:11-23. In addition, he suggests that cathodic protection may
have been used in certain circumstances to reduce corrosion. Id. at 109:15-11:23. Mr. Reynolds
acknowledges that the “[r]epairs and replacements that are needed in this system are extensive,
very expensive, and would markedly interrupt service.” Id., Ex. 4 (Reynolds Rep. at p. 4).
B. Procedural Background
Mr. Hsieh initially filed a complaint on behalf of his daughter based on the allegations at
issue in this action in the Superior Court for the District of Columbia in May 2006. See Notice of
Removal, Docket No. [1], ¶ 1. CESI filed its answer to that complaint in June 2006, and also
filed a third-party complaint against the Federal Defendants. Id. ¶¶ 2-3. In July 2006, the
Federal Defendants removed that action from Superior Court to this Court. See generally id.
Following removal, Mr. Hsieh, by consent of the parties, filed an Amended Complaint in this
case on behalf of his daughter, in which he named both CESI and the Federal Defendants as
defendants. See Amended Compl., Docket No. [4]. All Defendants filed answers to Natalie
Hsieh’s Amended Complaint. Thereafter, in September 2006, Mr. Hsieh commenced a separate
action, based on the same factual allegations asserted in his daughter’s Amended Complaint and
naming the identical Defendants, asserting a claim for damages for his own alleged injuries. See
Hsieh v. Consolidated Engineering Services, Inc., Civil Action No. 06-1626. The parties
subsequently agreed to the dismissal of Mr. Hsieh’s later-filed action and the consolidation of his
claims into the above-captioned action. Plaintiffs then filed, again with the consent of the
parties, their Second Amended Complaint.
In December 2006, CESI filed a cross-claim against the Federal Defendants for
10
indemnification and contribution, and a counterclaim against Mr. Hsieh alleging contributory
negligence and seeking contribution. See Docket No. [21].5 The Federal Defendants likewise
filed a cross-claim against CESI for indemnification and contribution. See Docket No. [25]. Mr.
Hsieh subsequently filed a motion to dismiss CESI’s counterclaim as untimely, which the Court
denied by Order dated March 23, 2007. See Docket No. [41]. The parties then proceeded
directly to engage in fact and expert discovery.
At the close of discovery, the parties filed a series of dispositive motions. As indicated
above, the Court issued a memorandum opinion on August 7, 2008, that, inter alia, granted in
part the Federal Defendants’ motion to dismiss or, in the alternative, motion for summary
judgment. See Hsieh v. CESI, 569 F. Supp.2d 159 (D.D.C. 2008). Specifically, as is relevant to
the instant Memorandum Opinion, the Court granted the Federal Defendants’ motion with
respect to both Plaintiffs’ claims and CESI’s cross-claim to the extent the claims were premised
on activities delegated to CESI under the SDC contract. Id. at 176-78. The Court held that such
allegations fall under the independent contractor exception to the FTCA, and that the Court
therefore lacked subject matter jurisdiction to entertain those claims. See id.
In so doing, however, the Court observed that a key factual dispute exists as to the cause
of Plaintiffs’ alleged injuries. Id. at 175-76. Although the Federal Defendants had assumed that
Plaintiffs’ alleged injuries were caused by actions (or inactions) delegated to CESI under the
SDC Contract — such that application of the independent contractor exception would have acted
as a complete bar to suit against the Federal Defendants — the Court determined that a
5
In addition, CESI filed a third-party complaint against D&Z, see Docket No. [31];
however, that third-party claim has since been dismissed without prejudice by a stipulation of all
parties, see Docket No. [75].
11
possibility remained that Plaintiffs were injured as the result of decisions made by GSA
regarding responsibilities for which it retained authority under the SDC contract. Id. at 178-79.
This possibility in turn raised a question as to whether the Federal Defendants’ decisions under
the SDC contract are covered by the discretionary function exception to the FTCA. See id. at
179-80. Unfortunately, as the Federal Defendants had assumed that Plaintiffs’ alleged injuries
were caused by actions delegated to CESI, the issued was not addressed in the parties’ initial
motions for summary judgment. It is well settled, however, that “[t]he discretionary function
exception is a barrier to subject matter jurisdiction.” Loughlin v. United States, 393 F.3d 155,
162 (D.C. Cir. 2004). “A district court thus has no authority to address the merits of claims
allegedly arising under the FTCA in cases in which the plaintiff is unable to overcome this
jurisdictional barrier.” Id. As with all questions relating to the Court’s jurisdiction, the Court
was therefore obligated to raise sua sponte the issue of the discretionary function exception to the
FTCA and its application in the case at hand. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,
230-31 (1990) (“federal courts are under an independent obligation to examine their
jurisdiction,” regardless of whether any party has raised it); cf. Burkhart v. Wash. Metro. Area
Transit Auth., 112 F.3d 1207, 1216 (D.C. Cir. 1997) (“sovereign immunity claims are
jurisdictional and thus cannot be waived”). Accordingly, emphasizing that application of the
discretionary function exception implicates the Court’s jurisdiction to entertain Plaintiffs’ claims
and CESI’s cross-claim against the Federal Defendants and therefore could not be waived, the
Court required the parties to provide supplemental briefing on this issue. See Hsieh, 569 F.
Supp.2d at 179-80.
Pursuant to that order, Federal Defendants initially filed a supplemental motion to dismiss
12
or in the alternative for summary judgment, and CESI filed a supplemental cross-motion for
partial summary judgment as well. See Docket Nos. [80] & [81]. Upon review of the parties’
supplemental filings, however, the Court found that the parties had failed to sufficiently develop
the factual record as was necessary to determine the applicability of the discretionary function
exception to the allegations at issue. Consequently, the Court remained unable to determine
whether and how the FTCA’s discretionary function exception applies in the instant case. The
Court therefore struck the parties’ briefing from the record and required the parties to file
renewed supplemental briefing that contained a case-specific discussion of how the relevant legal
principles apply to the particular facts of this case. See Apr. 29, 2009 Order, Docket No. [85].
As required, the Federal Defendants have now filed their renewed [87] Supplemental
Motion for Summary Judgment, which focuses on the application of the discretionary function
exception to this case. The Federal Defendants contend that both Plaintiff’s and CESI’s claims
are barred by the discretionary function exception to the FTCA. CESI and Plaintiff both oppose
the Federal Defendants’ motion. In addition, Plaintiffs have filed a [91] Motion to Strike
Exhibits 7, 8 and 9 attached to the Federal Defendants’ Supplemental Motion for Summary
Judgment. Plaintiffs contend that the exhibits should be stricken from the record because they
contain new information beyond the scope of discovery in this case. Federal Defendants oppose
Plaintiffs’ motion. Briefing on the parties’ motions is now complete, and the issues are therefore
ripe for the Court’s review and resolution.
II. LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment
“if the pleadings, the discovery and disclosure materials on file, and any affidavits show that
13
there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c); see also Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
Under the summary judgment standard, the moving party bears the “initial responsibility of
informing the district court of the basis for [its] motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must “go
beyond the pleadings and by [its] own affidavits, or depositions, answers to interrogatories, and
admissions on file, ‘designate’ specific facts showing that there is a genuine issue for trial.” Id.
at 324 (internal citations omitted).
Although a court should draw all inferences from the supporting records submitted by the
nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary
judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the
factual assertion must be capable of affecting the substantive outcome of the litigation; to be
genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-
fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.
Cir. 1987); Liberty Lobby, 477 U.S. at 251 (the court must determine “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not
sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50
(internal citations omitted). “Mere allegations or denials in the adverse party’s pleadings are
insufficient to defeat an otherwise proper motion for summary judgment.” Williams v.
14
Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply
“show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial
responsibility of identifying those portions of the record that demonstrate the absence of a
genuine issue of material fact, the burden shifts to the non-movant to “come forward with
‘specific facts showing that there is a genuine issue for trial.’” Id. at 587 (citing Fed. R. Civ. P.
56(e)) (emphasis in original).
III. DISCUSSION
A. Motion to Strike
The Court turns first to consider Plaintiffs’ [91] Motion to Strike Exhibits 7, 8 and 9
attached to the Federal Defendants’ Supplemental Motion for Summary Judgment. Plaintiffs
argue that these exhibits should be stricken because they contain new information beyond the
scope of discovery. See Pl.’s Opp’n/Mot. to Strike at 1. Plaintiffs emphasize that the Federal
Defendants did not plead the discretionary function exception as an affirmative defense and that
discovery in this matter is now closed. Id. Plaintiffs therefore urge that the Federal Defendants
should be precluded from relying on the newly submitted materials in support of their
supplemental motion because Plaintiffs have not had an opportunity to conduct discovery as to
the application of the discretionary function exception to GSA’s conduct in this case.
While the Court agrees that it would be unfair to make any final rulings in reliance on the
new material submitted by the Federal Defendants without first affording both Plaintiffs and
CESI an opportunity to obtain discovery on that information, the Court does not agree that
striking the Federal Defendants’ newly-added exhibits is appropriate. “[T]he application of the
15
discretionary function exception controls the Court’s jurisdiction over CESI’s cross-claim and
Plaintiffs’ claims against the Federal Defendants.” Hsieh, 569 F. Supp. 2d at 179-80. Because
the question now before the Court goes directly to its ability to entertain the claims against the
Federal Defendants, the Court simply cannot look past this threshold issue. It is therefore
inappropriate to strike material necessary to the determination of the Court’s jurisdiction over
Plaintiffs’ and CESI’s claims against the Federal Defendants. Accordingly, Plaintiffs’ [91]
Motion to Strike Exhibits 7, 8 and 9 is DENIED. To the extent, however, that the new exhibits
submitted by the Federal Defendants are material to the Court’s determination of whether the
discretionary function exception applies, the Court shall provide Plaintiffs and CESI an
opportunity to conduct discovery with respect to the newly submitted material, as is indicated
below.
B. Federal Defendants’ Supplemental Motion for Summary Judgment
It is well established that “[t]he federal government is ‘immune from suit save as it
consents to be sued.’” Kalodner v. Abraham, 310 F.3d 767, 769 (D.C. Cir. 2002) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941)). In enacting the FTCA, Congress granted
a limited waiver of the sovereign immunity of the United States in only certain circumstances,
allowing the United States to be sued for the negligent acts or omissions of its employees when
they act within the scope of their employment. 28 U.S.C. § 1346(b); see United States v.
Orleans, 425 U.S. 807, 813 (1976)); Cannon v. United States, 645 F.2d 1128, 1133 (D.C. Cir.
1981). The discretionary function exception to the FTCA bars tort claims “based upon the
exercise or performance or the failure to exercise or to perform a discretionary function or duty
on the part of a federal agency or an employee of the Government, whether or not the discretion
16
involved be abused.” 28 U.S.C. § 2680(a).
In determining whether the discretionary function exception applies, courts consider the
two-part test established in United States v. Gaubert, 499 U.S. 315, 322-23 (1991). First, as the
exception only covers “acts that involve an element of judgment or choice,” id. at 322, the court
determines whether any “federal statute, regulation, or policy specifically prescribes a course of
action for an employee to follow,” id. “If one does, ‘the employee has no rightful option but to
adhere to the directive.’” Macharia v. Untied States, 334 F.3d 61, 65 (D.C. Cir. 2003) (quoting
Berkovitz v. United States, 486 U.S. 531, 536 (1988)). If no directive exists, however, the Court
turns to Gaubert’s second step, and considers “whether the judgment is of the kind that the
discretionary function exception was designed to shield.” Gaubert, 49 U.S. at 322-23.
Specifically, the Court considers whether the judgment is “grounded in social, economic, [or]
political policy,” because “when properly construed, the exception ‘protects only governmental
actions and decisions based on considerations of public policy.” Id. at 323 (quoting United
States v. Varig Airlines, 467 U.S. 797, 814 (1984) and Berkovitz, 486 U.S. at 537).
1. Prong One of the Gaubert Test
As discussed above, the first prong of the Gaubert test evaluates whether any “federal
statute, regulation, or policy specifically prescribes a course of action for an employee to follow.”
Gaubert, 499 U.S. at 322. Plaintiffs concede that the first prong is met in this case. See Pl.’s
Opp’n, Docket No. [88], at 5 (“Plaintiffs do not dispute that there is no federal statute, policy or
regulation that specifically prescribes the Federal Defendants’ maintenance, repair and operation
of the SDC.”). CESI disagrees, arguing that a clear “directive existed that compelled GSA to
make repairs and capital improvements to the SDC.” CESI’s Opp’n, Docket No. [89], at 9.
17
Specifically, CESI asserts that GSA was obligated under (1) federal statute, (2) common law, and
(3) the provisions of the SDC contract to make all necessary repairs to the SDC. See id. at 8-10.
The relevant case law makes clear, however, that “in order to preclude the government from
availing itself of the discretionary function exception, a directive must ‘be mandatory and it must
clearly and specifically define what the employees are supposed to do.’” Loughlin v. United
States, 286 F. Supp. 2d 1, 8 (D.D.C. 2003) (quoting C.R.S. by D.B.S. v. United States, 11 F.3d
791, 799 (8th Cir. 1993)), aff’d in relevant part 393 F. Supp. 2d 1. In this case, the Court finds
that CESI has failed to show that any of the cited provisions specifically prescribe what repairs
and/or design modifications GSA was required to make to the SDC.
First, the federal statutory provisions relied upon by CESI simply authorize GSA to make
repairs to government buildings and do not “mandate” that GSA undertake any “particular
conduct.”6 See Gaubert, 499 U.S. at 324. This sort of “general directive that leaves
implementation decisions in the hands of federal officials” does not qualify as a mandatory
directive under the first prong of the Gaubert test; rather, “only those ‘regulations that give no
options to a government agency take away the exercise of discretion.’” Loughlin, 286 F. Supp.
2d at 8 (quoting Gotha v. United States, 115 F.3d 176, 1818 (3d Cir. 1997)); cf. Cope v. Scott, 45
6
Specifically, CESI directs the Court’s attention to the following three statutory
provisions: (1) 40 U.S.C. § 101, which states generally that the purpose of GSA’s enabling
statutes is to “provide the Federal Government with an economical and efficient system” for,
among other things, “repairing” government property; (2) 40 U.S.C. § 592(c)(1), which addresses
the Federal Buildings Fund and provides that “[d]eposits in the Fund are available for real
property management and related activities in the amount specified in an appropriation law may
be transferred out of the Fund and deposited as miscellaneous receipts in the Treasury;” and (3)
40 U.S.C. § 3305(b)(1)(A), which authorizes the GSA to “alter” — i.e., repair, remodel, improve,
extend or otherwise change — public buildings. See CESI’s Opp’n at 9-10.
18
F.3d 445, 450 (D.C. Cir. 1995) (“These statutes do not contain directives so precise that they
constrain the Park Service's control over the surface of Beach Drive. Absent such directives, any
action taken (or not taken) regarding the matter is an exercise of discretion.”). Second, the SDC
Contract does not obligate GSA to take any particular actions with respect to the repair and
maintenance of the SDC. While the SDC Contract specifies that GSA retains responsibility for
and must authorize certain general categories of repairs (namely, capital improvements and
repairs over $1,000), the agreement does not impose a nondiscretionary obligation on GSA to
take any specific actions. See generally Hsieh, 569 F. Supp. 2d at 167-69. Third and finally,
even assuming, as CESI asserts, that the common law obligates the government to “exercise
reasonable care as the owner and the operator of the steam system” and to “supervise and inspect
its property,” CESI Opp’n at 11, the common law certainly does not “‘specifically define what
the [GSA] employees are supposed to so.’” Loughlin, 286 F. Supp. 2d at 8 (quoting C.R.S. by
D.B.S., 11 F.3d at 799).
Accordingly, CESI has not demonstrated the existence of a mandatory directive
prescribing the specific course of action GSA was to take in this case. Indeed, CESI admits as
much, conceding that “none of these [] directives specifies the precise remedy that GSA must use
to prevent water intrusion in the GSA.” CESI’s Opp’n at 11. CESI nonetheless argues that these
directives qualify as a mandatory directive under the first prong of the Gaubert test because they
left GSA with no “choice but to repair the SDC in a manner that would prevent scalding steam
from escaping the manholes.” Id. This assertion, even if true, is insufficient as it is clear that
GSA employees retain discretion under the directives identified by CESI to determine what,
when and how such repairs should be conducted. As such, GSA’s conduct at issue “involves an
19
element of judgment or choice,” Berkovitz, 486 U.S. at 536, and the first prong of the Gaubert
test is satisfied.
2. Prong Two of the Gaubert Test
The Court turns next to consider the second prong of the Gaubert test, which considers
“whether the judgment is of the kind that the discretionary function exception was designed to
shield.” Gaubert, 49 U.S. at 322-23. As the D.C. Circuit has observed, “[d]etermining whether
a decision is ‘essentially political, social, or economic,’ is admittedly difficult, since nearly every
government action is, at least to some extent, subject to ‘policy analysis.’” Cope, 45 F.3d at 448
(quoting Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1195 (D.C. Cir.
1986)); cf. Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (“The distinction
between protected and unprotected actions and decisions has proven itself to be a particularly
vexing determination for district and appellate courts alike.”). “The mere association of a
decision with regulatory concerns is not enough; exempt decisions are those ‘fraught with . . .
public policy considerations.’” Id. (quoting Sami v. United States, 617 F.2d 755, 767 (D.C. Cir.
1979)). Accordingly, “[t]he question is not whether there is any discretion at all, but whether the
discretion is ‘grounded in the policy of the regulatory regime.’” Id. (quoting Gaubert, 499 U.S.
at 325) (emphasis added by D.C. Circuit).
In evaluating this second prong, the “Supreme Court has emphasized . . . that the issue is
not the decision as such, but whether the ‘nature’ of the decision implicates policy analysis.” Id.
“What matters is not what the decisionmaker was thinking, but whether the type of decision
being challenged is grounded in social, economic, or political policy.” Id.; see also Gaubert, 499
U.S. at 325 (“The focus of the inquiry is not on the agent’s subjective intent in exercising the
20
discretion conferred by statute or regulations, but on the nature of the actions taken and on
whether they are susceptible to policy analysis.”). The D.C. Circuit has cautioned against the
“mechanistic application of these frameworks,” emphasizing that “the focus is on the nature of
the decision, not on the semantic pigeonhole into which the action can be put.” Cope, 45 F.3d at
449; see also Terbush, 516 F.3d at 1129 (“Courts have been reluctant to create formulaic
categories or to demarcate flashpoints on this spectrum to illuminate which governmental
decisions fall within the discretionary function exception.”). Accordingly, while Plaintiffs and
CESI have each argued at various points that maintenance decisions cannot per se qualify as the
type of decision that may be exempted under the discretionary function exception, the case law
confirms that this Court cannot make categorical determinations regarding the nature of
maintenance decisions in general.7 Rather, in order to determine whether the discretionary
function applies in this case, the Court must examine the nature of the judgments at issue. That
in turn requires the Court to examine the alleged causes of Plaintiffs’ injuries and the alleged
remedies that Plaintiffs and CESI claim should have been undertaken. See Mitchell v. United
States, 225 F.3d 361, 365 (3d Cir. 2000) (“From case law, it becomes apparent that in applying
the teachings of Gaubert, the inquiry becomes fact-specific.”); cf. Terbush, 516 F.3d at 1135
(concluding that the court could not determine on the present record whether the discretionary
function applied “[b]ecause the parties and the district court to some degree lumped the question
of maintenance together with the other claims regarding design and construction” and therefore
7
Indeed, the D.C. Circuit has previously found that governmental maintenance decisions
may, in certain circumstances, be exempt under the discretionary function exception. See,
e.g., Cope, 45 F.3d at (finding that discretionary function exception applied to allegations that the
government failed to “maintain adequate skid resistence” on a public roadway).
21
remanding to the district court for further proceedings”).8
In this case, Plaintiffs have alleged that their injuries were caused by CESI’s and/or the
Federal Defendants’ negligent failure to inspect, maintain and repair the SDC, to provide
Plaintiffs with a warning of the dangerous or potentially dangerous condition present in Manhole
42, and/or to investigate the cause of and to remedy the water leakage into the SDC. See Second
Amended Complaint, (hereinafter “2d Am. Compl.”), Docket No. [19]. These allegations have
been further refined by the testimony of the parties’ expert witnesses and, as reflected by the
present record, the specific judgments now being challenged fall into three general categories: (a)
GSA’s decisions regarding the design of the SDC, including both alterations of the existing
physical structure (by, for example, modifying pipe locations) as well as adding new equipment
(such as sump pumps, water alarms, pressure sensors, etc.); (b) GSA’s decisions regarding the
type and frequency of inspections of the SDC; and (c) GSA’s decisions whether to warn the
public regarding the hazardous condition at Manhole 42.
a. Decisions relating to the design of the SDC.
As indicated above, both Plaintiffs’ and CESI’s experts conclude that the Federal
Defendants’ failure to make certain decisions relating to the design of the SDC contributed to
8
For this reason, Plaintiffs’ opposition briefing is largely unhelpful to the Court, as
Plaintiffs once again fail to address the specific decisions at issue in this case. See generally Pls.’
Opp’n. Plaintiffs have instead continued to advance a broad, categorical argument that
“decisions regarding the repair, maintenance and operation of the SDC” are not exempted by the
discretionary function exception. See id. As indicated above, this argument does little to assist
the Court in determining whether the maintenance judgments actually at issue in this case are
susceptible to policy analysis. The Court’s discussion on this point therefore focuses primarily
on those arguments advanced by CESI in its opposition briefing.
22
and/or caused Plaintiffs’ injuries.9 The parties have, in their current briefing, generally divided
the suggested actions regarding the SDC design into two categories — (1) suggested changes to
the design of the SDC and (2) suggested modifications to the SDC. They further indicate that
alterations to the current physical structure of the SDC (for example, rearranging the layout of the
steam pipes) belong to the former category, while additions of new equipment (for example,
water alarms or sump pumps) are appropriately viewed as part of the latter category. From its
own review of the present record, it appears to the Court that all such decisions may be fairly
characterized as “design judgments.” That is, the experts’ various proposals to modify the
SDC’s current structure — whether by adding new equipment or altering the material that is
already in place — are all, at heart, judgments about how the SDC should be designed and
constructed. The allegations on this point are not that the Federal Defendants negligently
installed a sump pump in Manhole 42, for example, that subsequently malfunctioned causing
injury to Plaintiffs, but that the Federal Defendants negligently failed to install the required sump
pump in the first instance. Moreover, as the Court understands the experts’ testimony, the
suggested alterations and modifications are applicable system-wide and are not necessarily
recommendations unique to Manhole 42. Accordingly, the Court views all such decisions as
relating to the design of the SDC.10
9
As the Court previously indicated in its August 7, 2008 Memorandum Opinion, capital
improvements and repairs over $1000 were in the exclusive control of GSA under the terms of
the SDC Contract. Hseih, 569 F. Supp. 2d at 169. Arguably, then, the specific actions identified
by the parties’ experts that fall within this general category of “decisions relating to the design of
the SDC” were GSA’s responsibility under the SDC Contract. The parties appear to proceed on
this assumption in the present briefing.
10
The sole possible exceptions to this statement are: (1) Mr. Bishop’s conclusion that the
water that accumulated in the manhole from the failed steam line should have been “drained,”
23
On the basis of the present record and upon review of the relevant case law, the Court is
inclined to find that the Federal Defendants’ decisions relating to the design of the SDC are
exempt under the FTCA’s discretionary function exception. The D.C. Circuit’s decision in Cope
is particularly instructive. In that case, the Court of Appeals held that the FTCA’s discretionary
function exception applied to claims that the United States negligently failed to maintain
adequate skid resistance on a public roadway located in Rock Creek Park in Washington, D.C.
Cope, 45 F.3d at 450-51. The D.C. Circuit observed that “no regular maintenance would have
prevented the road from deteriorating in the way [plaintiff] alleges;” rather, the record reflected
that the road conditions of which plaintiff complained “could have been prevented only by
reducing the traffic load, initially paving it with a different surface, resurfacing the curve entirely,
or at least milling the curve to create grooves in the surface.” Id. at 451. The court therefore
concluded that “[d]etermining the appropriate course of action would require balancing factors
such as [the road’s] overall purpose, the allocation of funds among significant project demands,
the safety of drivers and other park visitors, and the inconvenience of repairs as compared to the
risk of safety hazards.” Id. As such, the government’s decisions regarding management of the
public roadway at issue were exempt from suit under the FTCA’s discretionary function
exception. Id..
Similarly, in Baum v. United States, 986 F.2d 716, 721-22 (3d Cir. 1993), the Third
either by a “passive” or “active” drain, see Fed. Defs.’ MSJ, Ex. 5 (Bishop Dep. at 29:21-23);
and (2) Mr. Reynold’s conclusion that cathodic protection may have been used in certain
circumstances to reduce corrosion, see id., Ex 4 (Reynolds Dep. at 109:15-111:23). It is unclear
to the Court on the present record what exactly these proposed courses of action entail and
whether they are accurately characterized as proposing systemic design changes. The parties are
therefore directed to provide a more complete description of these proposals in future briefing.
24
Circuit affirmed the lower court’s finding that the FTCA’s discretionary function exception
barred the plaintiff’s claims against the National Park Service. The plaintiff in that case alleged
that the government was negligent in designing and constructing a bridge guardrail with cast iron
rather than cast steel. Id. at 721. In finding that the discretionary function exception applied to
such claims, the Third Circuit concluded that the choice of material was “fundamentally” a
“question of how to allocate limited resources among competing needs.” Id. at 722. As such, the
challenged decision by the National Park Service “was one bound up in economic and political
policy considerations.” Id.
On the present record, the Court is inclined to find that the government’s decisions
regarding the design of the SDC — like the decisions at issue in Cope and Baum — are grounded
in policy and economic concerns. The Federal Defendants have provided the declaration of Greg
Westphal, Steam Distribution Manager with GSA, National Capital Region, in which he avers
that the decision to implement each of the specific actions recommended by Plaintiffs’ and
CESI’s experts requires the balancing of, inter alia, the safety of individuals throughout
downtown Washington, D.C., the allocation of funding among competing projects, and the
inconvenience of any disruption in service to the 100-plus buildings that receive steam from the
SDC as compared to the risk of the safety hazards. See generally Fed. Defs.’ MSJ, Ex. 7
(Declaration of Greg Westphal); see also id., Ex. 8 (Declaration of Diane Stolz) (discussing the
process for undertaking major repairs and capital improvements to the SDC). This evidence, if
unrebutted, sufficiently demonstrates that the types of decisions at issue here are distinct from
and significantly more complex than the type of routine, garden-variety maintenance decisions
that are generally found to fall outside the discretionary function exception. See, e.g., Gotha, 115
25
F.3d at 181 (finding that the discretionary function exception did not apply to claims that the U.S.
Navy was negligent in failing to provide either a stairway handrail or sufficient lighting because
such decisions involved “mundane, administrative, garden-variety housekeeping problem[s]”).
Indeed, CESI’s own expert, Mr. Reynolds, agrees that the “[r]epairs and replacements that are
needed in this system are extensive, very expensive, and would markedly interrupt service.” Fed.
Defs.’ MSJ, Ex. 4 (Reynolds Rep. at p. 4).
CESI’s arguments to the contrary are largely without merit on the present record. Relying
on Maalouf v. Swiss Confederation, 208 F. Supp. 2d 31 (D.D.C. 2002), CESI argues that the
government is not entitled to discretionary function immunity for decisions, such as that at issue
here, that are made on behalf of the government as a land owner rather than as a government
entity per se. See CESI’s Opp’n at 14-16. CESI’s reliance on Maalouf, however, is misplaced.
In that case, the plaintiff alleged that he had been injured while sledding on the grounds of the
Swiss Embassy when he struck a guide wire that secured a leaning tree. 208 F. Supp. 2d at 34-
35. The district court held that the plaintiff’s claims were not barred under the analogous
discretionary function exception to the Foreign Sovereign Immunities Act because the Swiss
government, in deciding to install a guide wire on its premises, “was acting as a private
landowner.” Id. at 36. The court concluded that “the fact that the Embassy’s property is not
maintained for public use supports the results reached here [i.e., that the discretionary function
exception did not apply], because the decision regarding protection of the tree was clearly related
to defendant’s role as a landowner, and not a result of any policy-making duties of a
governmental body.” Id. The types of decisions at issue in this case, which relate to the design
and operation of the approximately seven miles of tunnels and five miles of direct-buried
26
pipelines that make up the SDC and that supply steam to approximately 100 government
buildings and monuments in downtown Washington, D.C., are simply not analogous to the
conduct of a private landowner acting in a private capacity. They certainly involve far more
complex judgments than are implicated by the decision to attach a guide wire to a tree on a
foreign government’s private embassy grounds, as was at issue in Maalouf.
CESI also contends, relying in part on the D.C. Circuit’s decision in Cope, that the type of
decisions at issue regarding the design of the SDC implicate only “technical, engineering and
professional judgments about safety which are not entitled to discretionary function immunity.”
CESI’s Opp’n at 16. To the extent CESI implies that the Court should adopt a categorical rule
that decisions involving technical, engineering, professional, and/or safety judgments cannot be
subject to the discretionary function exemption, such an argument is wholly without merit. The
relevant case law makes clear that courts may not rely on “formulaic categories” in applying the
discretionary function exception. Terbush, 516 F.3d at 1129; see also Cope, 45 F.3d at 449 (“the
focus is on the nature of the decision, not on the semantic pigeonhole into which the action can
be put”). In addition, CESI’s reliance on Cope is misplaced. CESI contends that the D.C.
Circuit’s decision in that case may be read as holding “that decisions involving engineering
judgments do not involve public policy considerations.” CESI’s Opp’n at 16. But upon review
of that decision, it is readily apparent that Cope contains no such categorical holding. To the
contrary, while the D.C. Circuit observed that judgments involving engineering concerns “are not
necessarily protected by suit,” it recognized that where such judgments “are‘fraught with public
policy considerations’ . . . they fall within the [discretionary function] exception.” Cope, 45 F.3d
at 451 (emphasis added). Similarly, although decisions that implicate only questions of safety
27
without any additional policy concerns may be outside the scope of the discretionary function
exception, the mere fact that a judgment involves balancing of public safety does not
automatically bar application of the exception. See, e.g., id. (decisions regarding management of
the public roadway immune from suit under discretionary function exception notwithstanding
that they involve judgments as to “the safety of drivers and park visitors”).11
Accordingly, the Court reiterates that it is inclined on the basis of the present record to
find that the Federal Defendants’ decisions regarding the design of the SDC fall within the
discretionary function exception. Nonetheless, because this finding is based in part on statements
contained in the Westphal and Stolz Declarations — and which, as noted above, have not yet
been subject to discovery by either Plaintiffs or CESI — the Court concludes that Plaintiffs and
CESI should, in fairness, be permitted an opportunity to test the validity of Mr. Westphal’s and
Ms. Stolz’s statements before a final decision is rendered. Accordingly, the Court shall DENY
WITHOUT PREJUDICE the Federal Defendants’ [87] Supplemental Motion for Summary
Judgment to the extent they argue that the discretionary function exception applies to GSA’s
design-related decisions. Discovery in this case shall be reopened for the limited purpose of
11
CESI’s reliance on the unpublished decision in Stotmeister v. Cherry Hill Construction,
Inc., Civ. Act. No. 05-813, 2006 WL 1933871 (D.D.C. July 11, 2006), is equally misplaced. As
CESI itself recognizes, that decision contains no discussion of the FTCA’s discretionary function
exception. See generally Stotmeister, 2006 WL 1933871; see also CESI’s Opp’n at 5, n. 3
(“Discretionary function immunity was not discussed in Stotmeister.”). CESI’s claim in its
opposition briefing that the Stotmeister court “held that the discretionary function did not protect
the Federal Government from suit for alleged actions or omissions with respect to the SDC,”
CESI’s Opp’n at 5, is therefore both puzzling and wholly inaccurate. In addition, insofar as CESI
implies that the absence of any discussion of the discretionary function exception in that case
should be read as supporting a finding that the discretionary function exception does not apply to
claims of negligence based on decisions relating to the SDC, such an argument is clearly without
merit.
28
permitting Plaintiffs and CESI to depose Mr. Westphal and/or Ms. Stolz as to the statements
contained in their declarations, pursuant to the schedule set forth below. The Federal Defendants
may then file a renewed motion on this issue once the parties have had an opportunity to conduct
discovery on these issues.
b. Decisions regarding investigations/inspections.
As indicated above, Plaintiffs’ expert Mr. Smith also suggests that GSA’s failure to
require increased inspections on the affected valves and piping and/or NDE examinations
contributed to the SDC failure and Plaintiffs’ resulting injuries. See Fed. Defs.’ MSJ, Ex 6.
(Mar. 29, 2007 Smith Rep. at p.4, ¶ 9); id. (Smith Dep. at 23:4-12, 26:4-28:15).12 Turning first to
the allegation that GSA should have required more frequent inspections of the SDC, the Court
concludes that this type of decision is not exempt under the FTCA’s discretionary function
exception. Decisions regarding the frequency of inspections do not involve the same type of
policy considerations that are associated with the more complex, systemic design changes
discussed above. Nor have the Federal Defendants identified any social, economic or political
considerations inherent in decisions regarding the frequency of inspections. The Court therefore
finds that GSA’s decisions regarding when and how frequently to inspect the SDC implicate only
issues of routine maintenance and scheduling and are therefore not exempt under the FTCA’s
12
As the Court previously found, the “SDC Contract prescribed a specific schedule for
CESI to perform inspections and preventative maintenance.” Hsieh, 569 F. Supp. 2d at 167.
Accordingly, it appears that GSA retained responsibility for setting the frequency of inspections.
In addition, although not directly addressed by the parties, the decision whether to require NDE
examinations arguably would have been within GSA’s control as well. See Fed. Defs.’ Ex. 7
(Westphal Decl.), ¶ 19 (indicating NDE examination would require steam to be shut down for
periods of time).
29
discretionary function exception. See, e.g., Gotha, 115 F.3d at 181 (finding discretionary
function exception did not bar claims regarding “mundane, administrative, garden-variety
housekeeping problem[s]”); cf. Cope, 45 F.3d at 451 (suggesting that decisions regarding
“routine maintenance” are not exempt under the FTCA’s discretionary function exception).
Accordingly, the Federal Defendants’ [87] Supplemental Motion for Summary Judgment is
DENIED to the extent it argues that decisions regarding the frequency of inspections are subject
to the discretionary function exception.
By contrast, the Court is inclined to find, based on the present record, that the decision
whether or not to require NDE examinations is exempt under the FTCA’s discretionary function
exception. As described by Mr. Westphal in his declaration, NDE examinations may require that
the affected steam lines be shut down for several days, resulting in significant service disruptions,
and, to the extent the examinations are conducted on buried steam lines, necessitates excavating
sidewalks and roads to reach the buried lines, which would in turn disrupt traffic patterns in the
affected areas in downtown Washington, D.C. See Fed. Defs.’ MSJ, Ex. 7 (Westphal Decl. ¶
19). The decision whether to employ NDE examinations therefore appears to be more complex
than and distinct from questions of routine maintenance, instead requiring GSA officials to
balance public safety concerns, the impact of any potential service disruptions against the benefit
of the examinations, and the distribution of limited resources among competing projects.
Nonetheless, because the Federal Defendants’ discussion of this issue depends upon the
Westphal Declaration, the Court shall permit Plaintiffs and CESI an opportunity to test the
validity of Mr. Westphal’s statements before a final decision is rendered. Accordingly, the
Federal Defendants’ [87] Supplemental Motion for Summary Judgment is DENIED WITHOUT
30
PREJUDICE to the extent it asserts that the discretionary function exception applies to GSA’s
decision whether to utilize NDE examinations. The Federal Defendants may re-file a renewed
motion on this issue once the parties have had an opportunity to conduct discovery on these
issues.
c. Decisions to warn the public regarding potential dangers associated
with Manhole 42.
Finally, Plaintiffs have alleged that the Federal Defendants negligently failed to warn
Plaintiffs and others in the vicinity of Manhole 42 of the dangerous or potentially dangerous
conditions then in existence. 2d Am. Compl. ¶ 15. In this instance, the Court finds that the
Federal Defendants’ alleged failure to warn of dangers specific to Manhole 42 is not subject to
the FTCA’s discretionary function exception. Indeed, the Federal Defendants themselves appear
to concede as much. While they argue that any alleged failure to provide system-wide warnings
of dangers associated with systemic water infiltration throughout the SDC would fall under the
discretionary function exception, they make no similar argument that an alleged failure to
provide warnings specific to the alleged hazardous condition at Manhole 42 is similarly barred;
instead, the Federal Defendants argue only that the latter allegation fails on its merits because
GSA had no actual notice of a problem specific to Manhole 42. See Fed. Defs.’ Reply to Pls.’
Opp’n at 11-13; see also Fed. Defs.’ Reply to CESI’s Opp’n at 19-21.
A fair reading of Plaintiffs’ Second Amended Complaint, however, indicates that
Plaintiffs have alleged only that they were injured as result of the Federal Defendants “negligent
failure to provide Matthew M. Hsieh and other persons properly in the vicinity of the grate in
question with a warning of the dangerous or potentially dangerous condition thereby presented.”
31
2d Am. Compl. ¶ 15 (emphasis added). Accordingly, while the Court is inclined to agree with
the Federal Defendants that any decision whether and how to provide system-wide warnings
regarding recurrent water infiltration into the SDC throughout the greater Washington, D.C.
downtown area would likely be subject to the discretionary function exception, Plaintiffs have
made no such claim in this case. As to the claim that GSA negligently failed to provide a
warning specific to Manhole 42, the Federal Defendants have not identified any public policy
considerations that would have affected their decision (or lack thereof) to warn of a hazardous
condition at Manhole 42 nor does it appear to the Court that such a decision is one “fraught with
public policy considerations.” See Cope, 45 F.3d at (finding failure to warn not covered by
FTCA’s discretionary function exception where no policy considerations implicated); Maalouf,
208 F. Supp. 2d at 38 (finding that discretionary function exception did not apply where
defendant “can point to no important political, social, or economic consideration involved in its
decision not to warn plaintiff about the guide wire”). Setting aside the question of whether
Plaintiffs will ultimately be able to show that the Federal Defendants negligently failed to
provide warnings of a danger at Manhole 42 — a merits-based question that is not currently at
issue in the parties’ pending briefing and on which the Court therefore reserves judgment13 — it
is apparent that such a claim is not precluded by the FTCA’s discretionary function exception.
The Federal Defendants’ [87] Supplemental Motion for Summary Judgment is therefore
DENIED insofar as it asserts that the discretionary function exception applies to GSA’s decision
13
Similarly, the Court notes that the separate question of whether the Federal Defendants
validly delegated any potential duty to warn to CESI under the terms of the SDC contract is not
currently at issue in the parties’ motions.
32
not to warn about a hazardous condition at Manhole 42.
IV. CONCLUSION
For the reasons set forth above, Plaintiffs’ [91] Motion to Strike Exhibits 7, 8 and 9 is
DENIED. In addition, with respect to the Federal Defendants’ [87] Supplemental Motion for
Summary Judgment, the Court finds that the Federal Defendants’ decisions regarding the
frequency of inspections and whether to warn the public of a hazardous condition at Manhole 42
are not exempt under the FTCA’s discretionary function exception and the Court therefore has
jurisdiction to entertain Plaintiffs’ claims and CESI’s cross-claim to the extent both are based on
such allegations. Accordingly, the Federal Defendants’ [87] Supplemental Motion for Summary
Judgment is DENIED with prejudice insofar as the government contends that decisions regarding
the frequency of inspections and whether to warn of a specific hazard in Manhole 42 are subject
to the discretionary function exception. The Court, however, is inclined on the present record to
find that the Federal Defendants’ decisions regarding the design of the SDC — including both
decisions relating to physical alterations and the addition of new equipment —as well as
decisions regarding the use of non-destructive examinations are exempt under the FTCA’s
discretionary function exception. Nevertheless, because this determination is made at least in
part on statements contained in the newly submitted Westphal and Stolz declarations, neither of
which have yet been subject to discovery, the Federal Defendants’ [87] Supplemental Motion for
Summary Judgment is DENIED WITHOUT PREJUDICE insofar as the government argues that
the discretionary function exception applies to decisions relating to the SDC design and whether
to use non-destructive examinations. Discovery in this case shall be reopened for the limited
purpose of permitting Plaintiffs and CESI to depose Mr. Westphal and/or Ms. Stolz as to the
33
statements in their respective declarations, as may be appropriate, pursuant to the schedule set
forth in the accompanying Order.14 The Federal Defendants may then file a renewed motion on
this issue once the parties have had an opportunity to conduct discovery. An appropriate Order
accompanies this Memorandum Opinion.
Date: March 26, 2010
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
14
As the Court has not relied upon or cited to Exhibit 9 to the Federal Defendants’
Supplemental Motion for Summary Judgment, which is a copy of the SDC Operations Manual,
there is no need to permit additional discovery to be taken with respect to the Manual.
34