Elizabeth Wilburn v. United States ( 2018 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0416n.06
No. 17-6136
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Aug 16, 2018
DEBORAH S. HUNT, Clerk
ELIZABETH WILBURN,
Plaintiff-Appellant,
ON APPEAL FROM THE UNITED
v.
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
UNITED STATES OF AMERICA,
TENNESSEE
Defendant-Appellee.
BEFORE: BATCHELDER and CLAY, Circuit Judges; SARGUS, Chief District Judge.*
CLAY, Circuit Judge. Plaintiff Elizabeth Wilburn sued the United States for negligence
under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq., for injuries she sustained
when elevator doors closed on her in a hospital operated by the United States Department of
Veterans Affairs (“VA”). The district court dismissed the case for lack of jurisdiction, finding that
the government’s sovereign immunity had not been waived. For the reasons set forth below, we
AFFIRM the district court’s judgment.
FACTUAL AND PROCEDURAL HISTORY
This personal injury action stems from an incident in June 2012, when Wilburn was injured
by an elevator at the VA hospital in Nashville, Tennessee. The following factual account is drawn
*
The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 17-6136
from, among other sources, deposition testimony from Wilburn and others. Where a factual
dispute exists, this account presents Wilburn’s version of events.
At all times relevant to this case, Wilburn worked for Stericycle Specialty Waste Solutions,
a business that removes biohazard waste from hospitals. As part of her job, Wilburn was assigned
to remove waste from the VA hospital. In doing so, she would transport the waste in a three-shelf
cart, which she would push around the hospital as needed. To travel between floors, Wilburn
would use one of the hospital’s two service elevators, referred to by the parties as S1 and S2.
Although the elevator doors closed at a normal speed,1 this barely left enough time for Wilburn to
maneuver her large, heavy cart inside the elevator. Other employees had similar experiences.
On multiple occasions, Wilburn informed Leon Langguth, the hospital’s Chief of
Environmental Management Services, that the elevator doors closed too quickly, making her job
dangerous. Langguth responded that there was “no money” to address the issue. (R. 50-3, Wilburn
declaration, ¶ 11.) Langguth did not forward Wilburn’s complaints to the companies responsible
for servicing or inspecting the elevators, and the elevator door settings were never changed.
On June 29, 2012, Wilburn was pushing her cart into S1 when the elevator doors closed on
her, knocking her to the floor. A few days later, she sought medical attention for a sore shoulder
and a numb right arm. She did not return to work. She later applied for and received worker’s
compensation benefits.
After exhausting her administrative remedies, Wilburn sued the United States for
negligence under the FTCA, 28 U.S.C. §§ 2671 et seq. The district court dismissed the action for
1
Wilburn agrees that the door-closing speed satisfied all applicable safety code
requirements. (See, e.g., Plf.’s Br. at 11 (stating that the door-closing speed was “in accordance
with the [applicable] codes under the VA contract with Otis [Elevator Company]”).)
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lack of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. As relevant here,
the district court explained that the government was immune from suit under the FTCA’s
discretionary function exception, 28 U.S.C. § 2680(a), which preserves the government’s
sovereign immunity for claims based on an official’s decision to perform (or not perform) a
discretionary act—in this case, Langguth’s decision not to change the elevator-door speed.2
Wilburn timely appealed.
DISCUSSION
Standard of Review
“[W]e review de novo the district court’s dismissal of a claim for lack of subject matter
jurisdiction, pursuant to Rule 12(b)(1).” Blakely v. United States, 276 F.3d 853, 863 (6th Cir.
2002). If the district court considers factual disputes when deciding a Rule 12(b)(1) motion, it
must be careful to ensure “fairness to the non-moving party.” Ohio Nat. Life Ins. Co. v. United
States, 922 F.2d 320, 327 (6th Cir. 1990). To that end, the district court should be guided by the
summary judgment standard set forth in Rule 56. Id.
Analysis
“It is elementary that the United States, as sovereign, is immune from suit save as it
consents to be sued, and the terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quotation
2
The district court also ruled that, to the extent Wilburn attributed her injuries to negligence
by the elevator servicer or elevator inspector, her claims were barred by the FTCA’s independent
contractor exception. See Wilburn v. United States, No. 15-cv-691, 2017 WL 3149583, at *7
(M.D. Tenn. July 25, 2017) (discussing the independent contractor exception). We do not address
the independent contractor exception in this opinion because, in her brief on appeal, Wilburn
expressly declined to accuse the elevator contractors of wrongdoing. (See Plf.’s Br. at 9 (“There
is no evidence in the record which would support a finding that any risk of harm to the plaintiff
would have been foreseeable to Otis Elevator [the servicer] or Bayline [the inspector] prior to the
plaintiff’s accident.”).) Plaintiff’s counsel confirmed this position during oral argument.
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marks, citation, and alterations omitted). “[T]he language of any waiver of sovereign immunity is
strictly construed in favor of the United States.” Reed v. Reno, 146 F.3d 392, 398 (6th Cir. 1998).
Wilburn’s suit arises under the FTCA, which waives the government’s immunity over tort
claims where “the United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.” 28 U.S.C. §1346(b)(1). However,
the FTCA contains exceptions to its general waiver of immunity. As relevant here, the
discretionary function exception preserves the government’s sovereign immunity for any claim
“based upon the exercise or performance or the failure to exercise or perform a discretionary
function or duty on the part of a federal agency or an employee of the Government, whether or not
the discretion involved be abused.” 28 U.S.C. § 2680(a).
Under the Supreme Court’s decision in United States v. Gaubert, the discretionary function
exception applies if the following two requirements are met: (1) the challenged act involved “an
element of judgment or choice”; and (2) the judgment or choice “is of the kind that the
discretionary function exception was designed to shield.” 499 U.S. 315, 322–23 (1991) (quotation
marks and citations omitted). If both prongs of this test are satisfied, the acts or omissions of the
government are exempt from liability, as its immunity has not been waived. “[T]he crucial first
step” in applying Gaubert “is to determine what conduct is at issue.” Rosebush v. United States,
119 F.3d 438, 441 (6th Cir. 1997). In this case, Wilburn challenges the VA’s decision not to take
any action on her complaints about the speed of the elevator doors.
Given the way this appeal has been briefed and presented, we are compelled to conclude
that the VA’s decision in this case satisfies both Gaubert requirements. First, a decision on
elevator door speed involves an element of “judgment or choice.” In her district court summary
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No. 17-6136
judgment opposition, Wilburn conceded that the VA has discretionary authority to set and maintain
elevator door speeds. Specifically, she admitted that “[t]he [elevator] maintenance program was
created in the exercise of a discretionary function.”3 (R. 51, summary judgment opp., PageID#
1597.) Wilburn never argued that the VA’s discretion was limited by any statute, regulation, or
internal policy.
Second, this is a type of choice that the discretionary function exception was designed to
protect. See Rosebush, 119 F.3d at 443 (“Decisions concerning the proper response to hazards are
protected from tort liability by the discretionary function exception.”). To the extent Wilburn
complains about the VA’s decision to delegate service and inspection authority to private elevator
contractors, that decision was also protected by the discretionary function exception. See Totten
v. United States, 806 F.2d 698, 701 (6th Cir. 1986) (“This court has explicitly held the discretionary
function exception applicable to alleged negligence in the delegation of safety responsibilities to a
government contractor.”). Accordingly, the discretionary function exception applies.
Wilburn disputes this conclusion. She points out that Langguth typically forwards
complaints to the elevator servicer as a matter course, without exercising any judgment. (Plf.’s
Br. at 11.) Because Langguth does not actually weigh policy considerations, Wilburn concludes,
the discretionary function exception should not apply.
Wilburn misses the mark. In Rosebush, this Court expressly rejected the proposition that
Gaubert requires evidence of a reasoned policy decision. Indeed, under Rosebush, it does not
matter whether the government engaged in any reasoning at all:
3
As the district court noted, see Wilburn, 2017 WL 3149583, at *5 n.7, this would appear
to be a concession that the discretionary function exception applies.
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No. 17-6136
[T]he requirement for a policy nexus is an objective not a subjective one. The
proper inquiry is whether the challenged actions are susceptible to policy analysis,
not whether they were the result of policy analysis.
. . . [E]ven if there is no evidence that policy concerns were the basis of a
challenged decision, the discretionary function exception applies if the decision is
susceptible to policy analysis.
Rosebush, 119 F.3d at 444 (quotation marks and citations omitted). In other words, it is “irrelevant
whether the [challenged action] was a matter of ‘deliberate choice’ or a mere oversight.” Angle v.
United States, 89 F.3d 832 (Table), 1996 WL 343531, at *1 (6th Cir. 1996) (quoting Allen v. United
States, 816 F.2d 1417, 1422 n.5 (10th Cir. 1987)). We ask only whether the choice could have
been reached through a reasoned decision-making process.
In this case, the decision not to change the elevator-door speed could have been reached in
a deliberative fashion. For example, the VA could have decided that slowing the elevator doors
would have resulted in inefficiencies. Or, as Langguth allegedly told Wilburn, the VA could have
decided that changing the door speed was too expensive. Accordingly, the VA’s choice was
“susceptible to policy analysis” within the meaning of Rosebush. Sovereign immunity therefore
applies, and the district court correctly dismissed the case for lack of jurisdiction.
We note, however, that today’s decision does not imply that the VA acted properly. Indeed,
if a jury were to accept Wilburn’s version of events, she might well have a viable negligence claim.
The district court clearly thought she would. See Wilburn, 2017 WL 3149583, at *6 n.9 (“The
court is sympathetic to the fact that the plaintiff has put forward a strong negligence claim against
the VA Hospital, given evidence that it was on notice for quite some time that the timing of the
service elevator doors created a highly dangerous condition for its workers and had already resulted
in incidents including workers being trapped inside the elevators, carts being damaged, and other
injuries.”). Unfortunately for Wilburn, it simply does not matter whether the VA was negligent.
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This case turns on whether federal courts have jurisdiction to entertain her suit in the first place.
Because of the discretionary function exception, they do not. Therefore, her case was properly
dismissed.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
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