Davallou v. United States, No. 20-1523 (1st Cir. 2021)
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The First Circuit affirmed the judgment of the district court dismissing Plaintiff's suit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680, holding that the district court properly found that the United States was entitled to sovereign immunity pursuant to the FTCA's "discretionary function exception."
As part of an annual "Change of Command" ceremony, the Ancient and Honorable Artillery Company of Massachusetts, a historic military organization with no present-day military functions, arranged for military artillery to be fired within Boston Common by the Massachusetts Army National Guard (MANG). The noise produced from howitzers firing blank rounds cased Plaintiff to suffer permanent hearing damage. The district court dismissed the case for lack of subject matter jurisdiction. The First Circuit affirmed, holding (1) Plaintiff did not meet his burden of alleging facts that would support a finding that MANG's exercise of discretion was not susceptible to policy analysis; and (2) the challenged actions taken in this case did not fall outside the realm of possible policy decisions.
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