SLAPPEY v. United States Army Corps of Engineers et al, No. 1:2011cv00093 - Document 39 (M.D. Ga. 2013)
Court Description: ORDER granting 10 Motion to Dismiss. Plaintiffs' complaint is dismissed. It is hereby ordered and adjudged that judgment shall be entered in favor of the United States. Ordered by Judge W. Louis Sands on 9/25/13 (wks)
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SLAPPEY v. United States Army Corps of Engineers et al Doc. 39 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E MID D LE D ISTRICT OF GEORGIA ALBAN Y D IVISION AMANDA DELOACH SLAPPEY, Individually , as Adm inistrator of the Estate of J ohn Mark Slappey, and as Mother and N ext Friend of SAS, a m inor child Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. : : : : : : : : : : : : : : CASE NO.: 1:11-cv-93 (WLS) ORD ER Before the Court is Defendant United States of Am erica’s Motion to Dism iss. (Doc. 10 .) For the reasons that follow, the United States’ m otion is GRAN TED . I. Pro ce d u ral Backgro u n d J ohn Mark Slappey drowned while duck hunting near the J im Woodruff Lock and Dam in Lake Sem inole, a reservoir owned and operated by the United States Arm y Corps of Engineers (the Corps). His survivors brought suit against the United States under the Federal Tort Claim s Act (FTCA) and the Suits in Adm iralty Act (SIAA). (Docs. 3, 37.) They claim the Corps was negligent for failing to warn Slappey of the hazards of hunting near the dam ; for failing to keep the lake adjacent to the dam reasonably safe for visitors; and for failing to inspect, m aintain, and repair a warning sign, buoys, an d a life ring. After answering the com plaint, the United States filed a m otion to dism iss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject m atter jurisdiction. (Doc. 10 .) 1 Dockets.Justia.com The United States argues it is im m une from suit under the FTCA and the SIAA because the m aintenance and placem ent of safety features near J im Woodruff Dam involved an exercise of discretion. The Parties m utually agreed to proceed to discovery on the lim ited question of whether the com plained-of actions or om issions were discretionary. The discovery period and the briefing stage have now concluded. The following facts have em erged from discovery. Lake Sem inole is a “run of the river lake,” m eaning that upstream water flowing into the lake is eventually released downstream . (Doc. 10 -60 ¶ 13.) It is part of the Apalachicola-Chattahoochee-Flint Rivers System . The Corps m aintains the lake’s water level, which often varies a few feet, by opening and lowering the spillway gates of J im Woodruff Dam . The dam also generates electricity through a powerhouse situated next to the dam . The dam itself is about 766 feet long, and a walkway atop the dam is about thirty feet from the lake surface. The dam and upstream pool are m arked with several safety features. First, on top of the dam , the Corps erected a large sign with three-foot red letters, which read, “DANGER STAY 80 0 FEET FROM DAM,” facing upstream . This sign does not com ply with the Corps’ m ost recent sign standards, but the Mobile District, the local division in charge of the project, had received perm ission to deviate from the standards. Additionally, the Corps drove a num ber of dolphins into the lakebed. On the front of the dolphins are signs reading, “BOATS KEEP OUT.” Between the dolphins, the Corps strung red-orange buoys with cable. Prior to Slappey’s death, the area around Lake Sem inole had experienced heavy rain and flooding. (Doc. 10 -60 ¶ 15; Doc. 35-5 at 6– 7.) As a result, the Corps had raised the spillway gates to release extra water. (Doc. 35-5 at 6– 7.) The rain and elevated gates 2 caused a strong current. Around Decem ber 10 , 20 0 9, the current carried debris into the buoy line and separated a segm ent of the line. The Corps ordered the buoy line’s repair (Doc. 34-10 ), but, because of the danger of boating near the buoy line, the Corps has a policy of repairing buoy lines only when the spillway gates are closed (Doc. 10 -60 ¶ 15). By Decem ber 20 , 20 0 9, the line had not been repaired. According to dam superintendent J ason Barrentine, the dolphin-secured buoy line is the best feasible safety device to secure the area. (Doc. 10 -60 ¶ 8.) A larger barrier would accum ulate debris, which m ust be allowed to pass through the dam . The Corps does not have the equipm ent to rem ove debris. The dolphins, on the other hand, allow debris to pass through the dam but prevent the entire line from becom ing detached. As for the sign, the Corps likely could not accom m odate a larger, higher sign than the one atop the dam , except by elaborate construction, because cranes that raise and lower the dam take up usable space. On Sunday, Decem ber 20 , 20 0 9, Slappey went duck hunting in Lake Sem inole near the dam with his half-brother Andrew Dism uke. Slappey and Dism uke’s duckhunting strategy involved a Gunnison Float Tube, a cam ouflaged one-m an inflatable chair. (Doc. 34-1 at 14.) Slappey, who was not wearing a life jacket, floated in the Gunnison in the lake while Dism uke, in a m otor boat, drove upstream to flush ducks toward him . (Id. at 25– 26.) At som e point, a current carried Slappey through the dam ’s buoy line. It happen ed that Anderson Construction, a contractor, was working overtim e that Sunday repairing the dam ’s walkway. One of the contractors threw Slappey a life ring. The life ring or its rope broke as Slappey hung to it. He eventually passed through the spillway gates and drowned. 3 Barrentine testified that Sundays are not ordinary workdays and that, on a typical Sunday, it would have been unlikely for anyone to have even seen Slappey approaching the dam to attem pt a rescue. Moreover, the life rings are not designed for turbulent waters like the kind that caught Slappey. Rather, they are used for calm waters, and these particular life rings com plied with U.S. Coast Guard standards. Because the rings are m ade of synthetic m aterials and coated in a type of vinyl, they do not decay or deteriorate. The Corps did not have any other safety features in place at the dam to rescue som eone like Slappey. II. D is cu s s io n a. Mo tio n to D is m is s Stan d ard s A party m ay assert by m otion the defense of lack of subject m atter jurisdiction, and the Court m ust dism iss an action if the Court finds that subject m atter jurisdiction is lacking at any tim e. Fed. R. Civ. P. 12(b)(1) & 12(h)(3). Therefore, a federal court has not only the power but the obligation “to inquire into jurisdiction whenever the possibility that jurisdiction does not exist arises.” Beavers v. A.O. Sm ith Elec. Products Co., 265 F. App’x 772, 777 (11th Cir. 20 0 8) (citing Johansen v. Com bustion Eng’g, Inc., 170 F.3d 1320 , 1328 n.4 (11th Cir.1999)). Subject m atter jurisdiction over an action m ay be attacked facially or factually. Stalley ex rel. U.S. v. Orlando Reg’l Healthcare Sy s., Inc., 524 F.3d 1229, 1232 (11th Cir. 20 0 8 ). “A ‘facial attack’ on the com plaint ‘require[s] the court m erely to look and see if [the] plaintiff has sufficiently alleged a basis of subject m atter jurisdiction, and the allegations in his com plaint are taken as true for the purposes of the m otion.’ ” McElm urray v. Consol. Gov’t of Augusta-Richm ond County , 50 1 F.3d 1244, 1251 (11th Cir. 20 0 7) (quoting Law rence v. Dunbar, 919 F.3d 1525, 1529 (11th Cir. 1990 )); see also 4 Carm ichael v. Kellogg, Brow n & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 20 0 9) (citing Morrison v. Am w ay Corp., 323 F.3d 920 , 925 n.5 (11th Cir. 20 0 3)) (“[T]he court m ust, as with a Rule 12(b)(6) m otion, take the com plaint’s allegations as true.”). “Factual attacks,” on the other han d, serve to “challenge ‘the existence of subject m atter jurisdiction in fact, irrespective of the pleadin gs, and m atters outside the pleadings, such as testim ony and affidavits are considered.’” McElm urray , 50 1 F.3d at 1251. The United States brings a factual and a facial attack to the Court’s subject m atter jurisdiction. Because the facial attack arguably was m ooted with the am ended com plaint, the Court addresses only the factual attack. “In the face of a factual challenge to subject m atter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists.” OSI, In c. v. United States, 285 F.3d 947, 951 (11th Cir. 20 0 2) (citations om itted). 1 B. An alys is “The United States, as a sovereign entity, is im m une from suit unless it consents to be sued.” Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1188 (11th Cir. 20 11). The FTCA waives that im m unity for the torts of governm ent em ployees “under circum stances where the United States, if a private person, would be liable to the claim ant in accordance with the law of the place where the act or om ission occurred.” 28 U.S.C § 1346(b)(1); Turner ex rel. Turner v. United States, 514 F.3d 1194, 120 0 (11th Cir. 20 0 8). But suits prem ised on a governm ent em ployee’s exercise of discretion are excepted from the FTCA’s waiver of im m unity. 28 U.S.C. § 2680 (a). The statute provides: 1 Because the relevant policy m anuals are undisputed, the Court holds that the United States would prevail regardless of the burden. 5 The provisions [of the FTCA] shall not apply to . . . [a]ny claim based upon an act or om ission of an em ployee of the Governm ent, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or perform ance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an em ployee of the Governm ent, whether or not the discretion involved be abused. (Id.) “The discretionary function exception . . . m arks the boundary between Congress' willingness to im pose tort liability upon the United States and its desire to protect certain governm ental activities from exposure to suit by private individuals.” United States v. S.A. Em presa de Viacao Rio Grandense (Varig Airlines), 467 U.S. 797, 80 8 (198 4). The Eleventh Circuit has held that the discretionary function exception also applies to the SIAA. Cranford v. United States, 466 F.3d 955, 958 (11th Cir. 20 0 6) (citing Mid-South Holdings Co., Inc. v. United States, 225 F.3d 120 1, 120 3 (11th Cir. 20 0 0 )). The Suprem e Court has articulated a two-part test to determ ine whether a governm ent em ployee’s actions fall within the discretionary function exception. Berkovitz v. United States, 486 U.S. 531, 536 (1988). First, a court asks “whether the challenged conduct is a m atter of choice for the acting em ployee.” Id. “The requirem ent of judgm ent or choice is not satisfied if a ‘federal statute, regulation, or policy specifically prescribes a course of action for an em ployee to follow,’ because ‘the em ployee has no rightful option but to adhere to the directive.’” United States v. Gaubert, 499 U.S. 315, 321 (1991) (quoting Berkovitz, 486 U.S. at 536.) Sim ply stated, a court m ust ask whether the governm ent’s conduct violated a m andatory derivative that allowed no judgm ent or choice. Autery v. United States, 992 F.2d 1523, 1526 (11th Cir. 1993) (citing Gaubert, 499 U.S. at 323). 6 Second, “assum ing the challenged conduct involves an elem ent of judgm ent, a court m ust determ ine whether that judgm ent is of the kind that the discretionary function exception was designed to shield.” Berkovitz, 486 U.S. at 536. “The exception is intended ‘to prevent judicial second-guessing of legislative and adm inistrative decisions grounded in social, econom ic, and political policy through the m edium of an action in tort.’ ” OSI, 285 F.3d at 950 (quoting Gaubert, 499 U.S. at 322– 23). In addressing this question, the Suprem e Court directs courts to “look to the nature of the challenged decision in an objective, or general sense, and ask whether that decision is one we would expect inherently to be grounded in considerations of policy.” Autery , 992 F.2d at 1530 – 31 (quoting Baum v. United States, 986 F.2d 716, 720 – 21 (4th Cir. 1993)). If a governm ent policy or guideline allows a governm ent agent to exercise discretion, “it m ust be presum ed that the agent's acts are grounded in policy when exercising that discretion.” Gaubert, 499 U.S. at 324. 1. Co n d u ct at Is s u e Before addressing whether the governm ent’s actions violated a m andatory directive, a court m ust define the conduct at issue. Autry , 992 F.2d at 1527. Plaintiffs assert that the conduct at issue is the following: 1. Defendants failed to warn of known hidden hazards and dangerous conditions in front of the dam which they created, thereby exposing visitors to unreasonable risk of injury or death, at a tim e when they knew the safety features and warning system in and around the dam were not com pliant with their own regulations standards or policies, not functioning, and/ or nonexistent. 2. Defendants failed to keep the prem ises reasonably safe for the uses intended, an d failed to correct dangerous conditions on the property. 3. Defendants failed to inspect, m aintain and repair or replace the safety features in and around the dam , including the dam sign, the buoy line, and the life ring. 7 (D0 c. 34 at 6– 7.) This description collapses the discretionary function inquiry into the question of whether the Corps was negligent. Cf. Autry , 992 F.2d at 1527– 28. The Corps’ purported negligence is irrelevant to whether its actions were discretionary. Id. In Autry v. United States, the Eleventh Circuit reversed a district court for engaging in a sim ilar inquiry. 992 F.2d at 1527– 28. In that case, Plaintiff Roy Autry was killed and Charlotte Schreiner injured after a decaying tree fell on their car in the Great Sm okey Mountain National Park. Id. at 1524. The plaintiffs contended that “the con duct at issue [is] the park's failure to carry out the m andates of its then existing policy of identifying and elim in ating known hazardous trees.” Id. at 1527. The district court, on the other hand, defin ed the inquiry as “whether the Park Service officials had discretion under their Tree Hazard Managem ent Plan to rem ove ‘hazardous' trees.” Id. Both descriptions were “too narrow.” Id. In particular, the Eleventh Circuit explained that the district court “collapse[d] the question of whether the Park Service was negligent into the discretionary function inquiry. That is, after finding that the Park Service had knowledge of the danger of black locust trees, the district court im posed a ‘reasonableness’ requirem ent on the governm ent's conduct.” Id. at 1528. Under the FTCA, however, “[i]t is the governing adm in istrative policy, not the [agency’s] knowledge of danger . . . that determ ines whether certain conduct is m andatory for purposes of the discretionary function exception.” Id. Therefore, the proper inquiry in Autry was “whether controlling statutes, regulations and adm inistrative policies m andated that the Park Service in spect for hazardous trees in a specific m anner.” Id. In the absence of a clear m andate, the Park officials’ procedure in identifying and rem oving decaying trees fell within the discretionary function exception. Id. 8 Likewise, the conduct at issue in this case is whether any controlling statute, regulation, or policy m andated that the Corps warn of hazards and m aintain the area adjacent to the dam in a particular fashion. 2 . W h e th e r th e Co rps ’ actio n s o r o m is s io n s in vo lve d a m atte r o f ju d gm e n t o r ch o ice Having identified the relevant conduct, the Court turns to the first step of the Berkovitz-Gaubert test. The Court m ust determ ine whether the Corps violated a specific nondiscretionary m andate. Autry , 992 F.2d at 1528. Plaintiffs have failed to m ake that showing. Congress authorized the Corps to construct the J im Woodruff Dam in the Rivers and Harbors Act of 1946. See Pub. L. No. 79– 525, 60 Stat. 634, 635 (1946). It provides that “the following works of im provem ent of rivers, harbors, and other waterways,” including the J im Woodruff Dam , “are hereby adopted and authorized to be prosecuted under the direction of the Secretary of War and the supervision of the Chief of Engineers, in accordance with the plans and subject to the conditions by the Chief of Engineers in the respective reports hereinafter designated.” Id. at 634. Outside of this broad authorization, the Parties have not identified, and the Court is unaware of, any relevant statute requiring particular upkeep or safety features at Lake Sem inole or the J im Woodruff Dam . In the absen ce of a congressional directive, the Parties point to a num ber of m anuals and engineering regulations and pam phlets. The Court agrees with the United States that these docum ents provided general objectives and guidelines and did not m andate any particular safety features or signs at the dam . And because “an agency m anual which provides only objectives and principles for a governm ent agent to follow 9 does not create a m andatory directive,” OSI, Inc. v. United States, 28 5 F.3d 947, 952 (11th Cir. 20 0 2), Plaintiffs have failed to establish the Court’s subject m atter jurisdiction. Both parties claim the Corps’ Sign Standards Manual (SSM) support their respective positions. The SSM standardizes sign legends and typography. The SSM, however, is clear that it provides guidance rather than m andates. See Bailey v. United States, 623 F.3d 8 55, 8 58 , 861 (9th Cir. 20 10 ) (applying discretionary function exception because “no regulation or guideline,” including the 1987 SSM, “required the Corps to replace m issing signs before a busy weekend or within a specific period of tim e”). The Introduction explain s: [a]lthough every effort has been m ade to standardize sign legends, individual sign conditions vary from project to project so that the appropriaten ess of an individual sign to a given setting must be determ ined on a case-by-case basis as part of the sign plan. The project Sign Program Manager is responsible for m aking a sign plan for each specific site based on: geography, hazards, audience, traffic, an d the uses for each site. (SSM 2 at 1-8.) This provision gave local districts broad discretion in which signs to place and where to put them. Additionally, while certain sign standards—such as, “color, type face/ fonts, form ats, proportions, and Danger, Warning, and Caution legends”—are m andatory, the HQ Sign Program Proponent m ay grant deviations. (Id. at 2-1.) There is no dispute that, though the dam ’s warning sign did not com ply with these standards, the HQ Sign Program Proponent granted a variation well before Slappey’s death. It is therefore of no m om ent that the Corps chose to warn visitors of the dam generally rather than of specific hazards such as currents and undertow. 2 Available at http://corpslakes.usace.army.mil/employees/sign/manual.cfm. 10 Plaintiffs seek to establish an absence of discretion from the Corps’ Engineering Regulations (ERs) and Engineering Pam phlets (EPs). But they have failed to show that the Corps violated any provision of these docum ents. For exam ple, ER 1130 -2-50 0 and EP 1130 -2-50 0 both require the Corps to use the SSM for Civil Works Projects. (Doc. 10 54 at 18 ; Doc. 10 -55 at 14.) Like the SSM, ER 1130 -2-50 0 and EP 1130 -250 0 m an date certain standards for signs absent perm ission to deviate. As already explained, there is no dispute the Corps obtained authorization to deviate from those standards. EP 1130 -2-520 also provides general guidance. (See Doc. 34-15.) It notes that the Corps shall address the use of buoys and other safety m easures in an Operational Managem ent Plan (OMP). (Id. at 7.) It also notes that “[p]hysical barriers to pedestrian and boater access will be erected w here practicable.” (Id. (em phasis added).) Additionally, “[s]igns, buoys, and other m arks or physical m easures shall be m aintained in as good condition as practicable.” (Id. (em phasis added).) Plaintiffs hope to prevail by em phasizing the various uses of “shall” in EP 1130 -2-520 . But, as directed, the Corps’ OPM does addresses the use of buoys and other safety features. As to requirem ents for m aintenance, the Eleventh Circuit has held that the word “shall” is not dispositive where, like here, a regulation contains other discretionary language. Ochran v. United States, 117 F.3d 495, 50 0 (11th Cir. 1997) (noting that word “shall” in U.S. Attorney General Guidelines did not rem ove discretion because it did not specify how to take a particular course of action); Pow ers v. United States, 996 F.2d 1121, 1125 (11th Cir. 1993) (applying discretionary function exception when statute provided that director of FEMA “shall from tim e to tim e take such action as m ay be necessary ”). In other words, EP 1130 -2-520 did not rem ove the Corps’ discretion in determ ining how or when to m aintain buoys and signs. 11 Plaintiffs also argue the Corps violated its OMP, which reads, in part, “Dangerous situations that will affect visitor m ovem ent on the project (washouts, low water hazards, etc.), will be barricaded, fenced, or m arked with the appropriate navigational warning m arker as soon as the problem is known.” (Doc. 34-12 at 13.) They claim the “dangerous situation” in this case was the current and separated buoy lin e. There are several problem s with this argum ent. First, the partial break in the buoy line was not a dangerous situation affecting visitor m ovem ent. The dangerous situation was the current and undertow, not the safety feature that warned of those things. Second, OMP left the Corps with a range of choices—barricades, fences, or “appropriate” warning m arkers—as to how to respond to dangerous situations. The Corps had already m arked the dam ’s hazards and buoy line with navigational warning m arkers. Finally, a plain reading of the entire section shows that the Corps was referring to sudden hazards in areas for visitors. The sentence itself applies to dangerous situations “that will affect visitor m ovem ent” and provides washouts and low water hazards, problem s that affect launching and navigation, as exam ples. Most of the paragraph is addressed to patrolling Ranger staff, and it mentions ram p closures on several occasions. Moreover, the sam e section on visitor safety later provides: Buoy lines are placed above and below the dam and powerhouse to prevent boaters/ fisherm en from entering these potentially dangerous areas. ... Corps em ployees are responsible for buoys and sign s which m ark controlled areas, danger areas, “boats keep out” areas, and visitor inform ation. In 1986– 87, pilings were installed with the proper signs to m ark sm all boat channels, hazards, boat keep out areas, and inform ation at several strategic locations to reduce buoy m aintenance costs and im prove effectiveness. 12 It would be strange for the Corps to create a redundancy in their OMP requiring two responses to the sam e hazard. The dam is always a “potentially dangerous area,” for which the Corps had provided signs and buoys, rather than a suddenly dangerous situation to visitor m ovem ent requiring a response “as soon as the problem is known.” This construction is supported by several witnesses who testified that it is the Corps’ policy to delay repairs to the buoy line until lake waters are still and the spillway gates are lowered. (Doc. 10 -60 ¶ 15; Doc. 34-5 at 11.) Moreover, the OMP’s directive that “[i]m m ediate priority is given to correcting problem s that involve public, contractor, or em ployee safety” does not specify when or how to correct problem s and thus did not create a m andatory standard. Cf. Autry , 992 F.2d at 1528 (finding that directive that the “saving an d safeguarding of hum an life takes precedence over all other park m anagem ent activities” did not create nondiscretionary m andate). Finally, Plaintiffs claim the local district violated a Corps directive by failing to com plete a Project Managem ent Plan. They assert that the sign plan, a prerequisite to the Project Managem ent Plan, has been pending since 20 0 3 because the initial proposal did not have a Navigation Hazards Marking System (NHSM). But Plaintiffs have again failed to show how this violated any fixed m andate. Miriam Flem ing, the district recreation sign program m anager, testified that the local project likely would have had to have the NHSM com pleted if the Corps required local districts to resubm it their sign plans. There is no evidence the Corps required them to do so. Additionally, the approval for the sign plan states, “The enclosed Project Sign Plan, is in com pliance with the guidance provided by HQUSACE and is com plete, with the exception of any pending action that has been noted with the plan (see PENDING). It m ay be im plem ented on 13 J anuary 1, 20 0 3.” The pending section notes that NHSMs are often delayed by lack of appropriate conditions to determ ine the hydraulic line. In any event, a “[p]atrial update to the Lake Sem inole Sign Plan” explains that “[t]he current use of U.S. Coast Guard Aids to Navigation system buoys and signs, in addition to dolphin s, physical barriers and existing dam signage, m eet current m inim um requirem ents.” In short, Plaintiffs have not provided any eviden ce that the possible pen ding status violated a fixed m andate. To the extent Plaintiffs rely on the Guidelines for Public Safety at Hy dropow er Plants and Safety Signage at Hy dropow er Projects, these guidelines apply only to nonfederal entities. The U.S. Departm ent of Energy and the Federal Energy Regulatory Com m ission prom ulgated these guidelines under the Federal Power Act, 16 U.S.C. § 791a et seq., to provide guidance to people, states, or m unicipalities licensed to construct dam s, §§ 796, 797. In sum m ary, Plaintiffs have failed to identify any fixed, readily ascertainable standard requiring a particular course of conduct at the dam or lake that Corps em ployees failed to follow. 3 . W h e th e r th e ju d gm e n t is o f th e kin d th at th e d is cre tio n ary fu n ctio n e xce p tio n w as d e s ign e d to s h ie ld The Court agrees with the United States that the Corps’ exercise of discretion at Lake Sem inole and the J im Woodruff Dam is susceptible to policy analysis. Initially, because the Corps acted with discretion, the Court m ust assum e those acts are grounded in public policy. Gaubert, 499 U.S. at 324. Moreover, federal courts tend to hold that sim ilar discretionary decisions are grounded in public policy. E.g., Autry , 992 F.2d at 1531. 14 For exam ple, in Autry , the Eleventh Circuit held that the Corps’ m ethod for inspecting and rem oving hazardous trees was susceptible to public policy analysis. 992 F.2d at 1531. The court reasoned that the Park Service likely had to weigh the risk of harm in various locations, the need for other safety program s, forest preservation, and the service’s lim ited financial resources. Id. Sim ilarly, in Graves v. United States, 872 F.2d 133 (1989), the Sixth Circuit held that the type of signs used at a closed lock an d dam were susceptible to policy analysis because the Corps em ployee considered the cost, feasibility of m aintenance, and effectiveness of various types of warnings. 872 F.2d at 137. In a case rem arkably sim ilar to this one, the Ninth Circuit in Bailey v. United States, 623 F.3d 855 (9th Cir. 20 10 ), reasoned that the Corps’ decision as to when to replace signs washed away in heavy river flows was susceptible to policy an alysis because “[t]he Corps had to balance the safety of its workers and the risk of lim ited resources, i.e., its equipm ent, in replacing the signs in dangerous conditions against the com peting public safety interest in having the signs replaced sooner.” 623 F.3d at 8 62. Here, as in those cases, the Corps had to weigh a range of com peting factors in placing an d m aintaining safety features around the dam . The Corps had to consider the cost and feasibility of certain safety features and their effectiveness in warning about the hazards at the dam . Additionally, in erecting the buoy line, the Corps had to consider whether other barricades would have accum ulated debris or interfered with dam m aintenance and visitor recreation. The balancing of these factors is evin ced in Barrentine’s statem ents. He testified that the Corps specifically chose the buoy system secured by dolphin s because it prevented the entire line from becom ing loose and allowed debris to pass through the dam . Additionally, the Corps had to weigh its em ployees’ safety versus the necessity of repairing a single segm ent in the buoy line 15 when the spillway gates were open. As for the sign, Barrentine testified that a larger or higher sign would have interfered with the cranes. In determ ining whether to include other safety devices at the dam , the Corps likely had to weigh the probability of a single person floating near the dam and the likelihood of a Corps em ployee being near the dam to attem pt a rescue. The Court finds that the decisions regarding the safety features at the dam are susceptible to policy analysis. III. Co n clu s io n For those reasons, the United States’ Motion to Dism iss (Doc. 10 ) is GRAN TED . Plaintiffs’ com plaint is D ISMISSED . It is hereby ORD ERED and AD J U D GED that judgm ent shall be entered in favor of the United States. SO ORD ERED , this _ 25th _ day of Septem ber 20 13. _ / s/ W. Louis Sands _ TH E H ON ORABLE W . LOU IS SAN D S, U N ITED S TATES D ISTRICT COU RT 16
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