Gonzalez v. United States Department of Transportation et al

MOTION to Dismiss for Lack of Jurisdiction and Failure to State Claim

D.N.J.January 23, 2017

PAUL J. FISHMAN United States Attorney SUSAN J. PAPPY Assistant United States Attorney 970 Broad Street, Suite 700 Newark, NJ 07102 Tel. (973) 645-2877 Fax. (973) 297-2010 email: susan.pappy@usdoj.gov UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY VICTOR GONZALEZ, JR., Plaintiff, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL, Defendants. Hon. Stanley R. Chesler Civil Action No. 2:16-08351 (SRC) (CLW) To: Antonio D. Arthurs Law Offices of Jeffrey S. Hasson PC 320 Cedar Lane Teaneck, NJ 07666 PLEASE TAKE NOTICE, that on February 21, 2017, at 10:00 AM, or as soon thereafter as counsel may be heard, PAUL J. FISHMAN, United States Attorney for the District of New Jersey (SUSAN J. PAPPY, Assistant United States Attorney, appearing), as attorney for the United States Department of Transportation will apply to this court for an order dismissing plaintiff’s FTCA Claim (First Count) in this action. In support of this motion, defendant respectfully refers the Court to the memorandum of law in support of the motion to dismiss and requests that this Case 2:16-cv-08351-SRC-CLW Document 5 Filed 01/23/17 Page 1 of 2 PageID: 13 motion be decided on the papers submitted, without oral argument, pursuant to Rule 78 of the Federal Rules of Civil Procedure. Dated: Newark, New Jersey January 23, 2017 Respectfully submitted, PAUL J. FISHMAN United States Attorney By: /s/ Susan J. Pappy SUSAN J. PAPPY Assistant United States Attorney Attorney for Defendant United States Case 2:16-cv-08351-SRC-CLW Document 5 Filed 01/23/17 Page 2 of 2 PageID: 14 PAUL J. FISHMAN United States Attorney SUSAN J. PAPPY Assistant United States Attorney 970 Broad Street, Suite 700 Newark, NJ 07102 Tel. (973) 645-2877 Fax. (973) 297-2010 email: susan.pappy@usdoj.gov UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY VICTOR GONZALEZ, JR., Plaintiff, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL, Defendants. Hon. Stanley R. Chesler Civil Action No. 2:16-08351 (SRC) (CLW) MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PAUL J. FISHMAN UNITED STATES ATTORNEY Attorney for Defendant SUSAN J. PAPPY Assistant United States Attorney Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 1 of 24 PageID: 15 ii TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................ ii TABLE OF AUTHORITIES ......................................................................................... iii PRELIMINARY STATEMENT ..................................................................................... 1 BACKGROUND ............................................................................................................. 2 I. Relevant Statutory Framework .......................................................................... 2 II. Allegations in the Complaint ........................................................................... 4 III. DOT’s Role in I-80 Construction Project.......................................................... 5 IV. Procedural History............................................................................................ 6 ARGUMENT .................................................................................................................. 7 I. Plaintiff’s Complaint Against DOT Should Be Dismissed for Lack of Jurisdiction ................................................................................................................. 7 A. The Court Lacks Jurisdiction Over Claims Against the DOT ..................... 7 B. The Discretionary Function Exception to the FTCA Bars Plaintiff’s Claim Against the United States ...................................................................................... 9 C. The United States’ Activities With Regarding to the Construction Zone Fall Under the Discretionary Function Exception ..................................................... 11 II. Plaintiff’s Complaint Against the United States Should Be Dismissed For Failure to State a Claim .......................................................................................... 16 CONCLUSION ............................................................................................................. 18 Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 2 of 24 PageID: 16 iii TABLE OF AUTHORITIES Cases Abdul-Mateen v. Federal Bureau of Prisons, No. 11-4715 (NLH), 2012 WL 2087451 (D.N.J. June 8, 2012) ......................... 17, 18 Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................................................................................................. 16 Ayres v. Mayor and City Council, 317 F. App’x 307 (4th Cir. 2008) .............................................................................. 15 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................. 16 Beneficial Consumer Disc. Co. v. Poltonowicz, 47 F.3d 91 (3d Cir. 1995) ............................................................................................ 8 Berkovitz v. United States, 486 U.S. 531 (1988) ...................................................................................... 10, 11, 13 Clark v. Wells Fargo Bank, 585 F. App’x. 817 (3d Cir. 2014) ................................................................................ 8 CNA v. United States, 535 F.3d 132 (3d Cir. 2008) ........................................................................................ 9 Dambach v. United States, 211 F. App’x 105 (3d Cir. 2006) ................................................................................. 9 Delgadillo v. Elledge, 337 F. Supp. 827 (E.D. Ark. 1972) ..................................................................... 16, 18 Fedoroczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69 (3d Cir. 1996) .......................................................................................... 17 Fowler v. UPMC Shadyside, 578 F.3d 203) (3d Cir. 2009) .................................................................................... 16 Gould Electronics, Inc. v. United States, 220 F.3d 169 (3d Cir. 2000) ........................................................................................ 5 Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 3 of 24 PageID: 17 iv Grant v. Baldwin, 565 F. App’x 75 (3d Cir. 2014) ................................................................................... 9 Hawkins v. United States, No. CIV.A. 03-3979 (JAG), 2006 WL 436124 (D.N.J. Feb.21, 2006) ...................... 17 In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344 (3d Cir. 2001) ........................................................................................ 9 Lane v. Pena, 518 U.S. 187 (1996) .................................................................................................... 8 Lomando v. United States, 667 F.3d 363 (3d Cir. 2011) ...................................................................................... 17 Mahler v. United States, 306 F.2d 713 (3d Cir. 1962) ................................................................ 7, 11, 12, 14, 15 Miller v. United States, 710 F.2d 656 (10th Cir. 1983) ........................................................ 2, 4, 12, 13, 14, 15 Priovolos v. F.B.I., 632 F. App’x 58 (3d Cir. 2015) ................................................................................... 9 Rothrock v. United States, 62 F.3d 196 (7th Cir. 1995) ............................................................................ 3, 14, 15 S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329 (3d Cir. 2012) ...................................................................................... 11 Santos ex rel. Beato v. United States, 559 F.3d 189 (3d Cir. 2009) .................................................................................. 9, 17 Treasurer of New Jersey v. United States Dep’t of Treasury, 684 F.3d 382 (3d Cir. 2012) ........................................................................................ 8 United States v. Gaubert, 499 U.S. 315 (1991) ...................................................................................... 10, 11, 13 United States v. Mitchell, 445 U.S. 535 (1980) .................................................................................................... 7 United States v. Mitchell, 463 U.S. 206 (1983) .................................................................................................... 8 Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 4 of 24 PageID: 18 v United States v. Sherwood, 312 U.S. 584 (1941) .................................................................................................... 7 Wilson v. City of Cherry Hill, No. 10-3866 (RBK/JS), 2011 WL 3651274 (D.N.J. Aug. 18, 2011) ........................... 9 Statutes 23 U.S.C. § 101 ......................................................................................................... 2, 13 23 U.S.C. § 106(a) .......................................................................................................... 3 23 U.S.C. § 109 .................................................................................................... 3, 14,15 23 U.S.C. § 114 ......................................................................................................... 4, 12 23 U.S.C. § 116 ......................................................................................................... 4, 12 23 U.S.C. § 145(a) ........................................................................................................ 12 23 U.S.C. § 401 ................................................................................................. 2, 4, 6, 13 23 U.S.C. § 402 ................................................................................................... 4, 13, 15 28 U.S.C. § 2674 ........................................................................................................... 17 28 U.S.C. § 2679(a) ........................................................................................................ 9 28 U.S.C. § 2680(a) ...................................................................................................... 10 28 U.S.C. § 1346(b) .................................................................................................. 9, 17 Regulations 23 C.F.R. § 625.3(f)(2) .............................................................................................. 4, 15 23 C.F.R. § 630.205 ........................................................................................................ 3 23 C.F.R. § 637.205(a) .................................................................................................... 4 23 C.F.R. Part 924 ......................................................................................................... 6 Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 5 of 24 PageID: 19 1 PRELIMINARY STATEMENT Defendant United States Department of Transportation (“DOT”), by its attorney, Paul J. Fishman, United States Attorney for the District of New Jersey, respectfully submits this memorandum of law in support of its motion to dismiss plaintiff’s complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of jurisdiction and Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief can be granted. Plaintiff Victor Gonzalez asserts a tort claim of negligence against the DOT and unidentified parties, alleging that he sustained personal injuries in a car accident near a construction zone on interstate highway I-80 in Parsippany, New Jersey (the “Construction Zone”). According to plaintiff, the accident occurred when he struck debris that fell onto the highway from the Construction Zone. Plaintiff alleges that the DOT was negligent in owning, controlling, maintaining, and supervising the Construction Zone and adjacent areas of the highway, and that this negligence caused his accident and subsequent injuries. As set forth more fully below, this Court should dismiss plaintiff’s claim against the DOT for lack of jurisdiction and for failure to state a claim. First, this Court lacks subject matter jurisdiction over plaintiff’s claim against the DOT because the Federal Tort Claims Act (the “FTCA”) is the exclusive remedy for tort claims asserted against the federal government, and the only proper defendant to such an action is the United States. Here, plaintiff attempts to bring a tort claim against the DOT. Because the United States is the only appropriate defendant to this FTCA action, the claim against the DOT must be dismissed. Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 6 of 24 PageID: 20 2 Moreover, even if the Court substituted the United States in place of the DOT, this Court lacks subject matter jurisdiction pursuant to the discretionary function exception to the FTCA. The DOT’s alleged acts concerning the Construction Zone, undertaken pursuant to the Federal-Aid Highway Act and/or Highway Safety Act, constitute discretionary functions for which the United States has retained sovereign immunity. This Court, therefore, lacks subject matter jurisdiction over plaintiff’s complaint against the United States and should dismiss under Rule 12(b)(1). Furthermore, and in any event, because plaintiff fails to plausibly allege that the United States owed plaintiff a duty under New Jersey law relevant to his alleged injuries, this Court should dismiss plaintiff’s complaint for failure to state a claim under Rule 12(b)(6). For all of these reasons, the complaint should be dismissed. BACKGROUND I. Relevant Statutory Framework Two federal statutes govern the United States’ role in the design, construction and maintenance of United States highways: the Federal-Aid Highway Act, 23 U.S.C. §§ 101 et seq., and the Highway Safety Act, 23 U.S.C. §§ 401 et seq. Originally enacted in 1916 to “stimulate and accelerate the nation’s developing highway system,” the Federal-Aid Highway Act permits the United States to provide “federal financial aid for approved state highway construction projects.” See, e.g. Miller v. United States, 710 F.2d 656, 659-60 (10th Cir. 1983). Under the Federal-Aid Highway Act, a state that seeks federal funds for a highway project must submit detailed plans, specifications (including location, design features and Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 7 of 24 PageID: 21 3 construction requirements), and estimates to the Secretary of Transportation for approval. 23 U.S.C. § 106(a); 23 C.F.R. § 630.205. The Secretary must then ensure that approved projects will “(1) adequately serve the existing and planned future traffic of the highway in a manner that is conducive to safety, durability, and economy of maintenance; and (2) be designed and constructed in accordance with criteria best suited to accomplish the objectives described in paragraph (1) and conform to the particular needs of each locality.” 23 U.S.C. § 109(a). The Federal-Aid Highway Act requires the Secretary to “promulgate guidelines designed to assure that possible adverse economic, social, and environmental effects relating to any proposed project on any Federal-aid system have been fully considered in developing such project” and that “final decisions . . . are made in the best overall public interest [.]” 23 U.S.C. § 109(h). In making a final determination, the Secretary must consider “the need for fast, safe, and efficient transportation, public services, and the costs of eliminating or minimizing [a number of] adverse effects” listed in the statute. Id. The Federal-Aid Highway Act provides that the Secretary’s guidelines “shall apply to all proposed projects with respect to which plans, specifications, and estimates are approved by the Secretary after the issuance of such guidelines.” 23 U.S.C. § 109(g).1 “Projects may be approved despite nonconformance to design criteria after due consideration is 1 The Secretary has delegated the authority to approve state projects, and to develop the guidelines upon which states rely, to the Federal Highway Administration, an agency within the DOT. See e.g., Rothrock v. United States, 62 F.3d 196,199 (7th Cir. 1995). Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 8 of 24 PageID: 22 4 given to all project conditions such as maximum service and safety benefits for the dollar invested[.].” Miller, 710 F.2d at 660, 23 C.F.R. § 625.3(f)(2). After a state project receives approval, the state undertakes construction. 23 U.S.C.§ 114(a). The state must maintain a quality assurance program, approved by the Department of Transportation/Federal Highway Administration, to ensure that construction conforms to approved plans and specifications. See 23 C.F.R. § 637.205(a). The state also must maintain the completed project. 23 U.S.C.§ 116(b). The second (here less relevant) statute, the Highway Safety Act, 23 U.S.C. §§ 401 et seq., was enacted in 1966 and directs the Secretary of Transportation to work with federal, state, and local governments and others to increase highway safety. 23 U.S.C. §§ 401, et seq. The Highway Safety Act requires each state to implement highway safety programs in accordance with uniform standards promulgated by the Secretary. Id. at § 402. To qualify for funding under the Highway Safety Act, a state must “have a highway safety program, approved by the Secretary [of Transportation], that is designed to reduce traffic accidents and deaths, injuries, and property damage.” Id. § 402(a). The Secretary, however, need not “require compliance with every uniform guideline, or with every element of every uniform guideline, in every State.” Id. § 402(c). Every approved program must “provide that the Governor of the State shall be responsible for the administration of the program through a State highway safety agency[.].” Id. § 402(b)(1)(A). II. Allegations in the Complaint Plaintiff alleges that he sustained injuries during a motor vehicle accident on interstate highway I-80, at or near Mile Post 45.7, adjacent to a construction zone in Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 9 of 24 PageID: 23 5 Parsippany, New Jersey. Compl. ¶ 9. According to plaintiff, the presence of debris on the highway caused plaintiff’s accident and resulting injuries. Id. Plaintiff claims that the DOT “owned, controlled, maintained, and supervised the construction zone and adjacent areas of I-80 East Bound, an interstate highway.” Id. at ¶ 10. Plaintiff maintains that the DOT acted with negligence in that it: “did not keep the construction zone in a safe condition; did not exercise proper care; caused a dangerous and hazardous condition to exist; allowed a nuisance to exist; failed to provide proper safeguards and/or warnings at the construction zone; failed to provide proper, safe, and clear access for persons allowed lawfully at or near the construction zone; and was otherwise negligent in the construction zone.” Id. at ¶ 11. According to plaintiff, due to the DOT’s alleged negligence, plaintiff sustained injuries and incurred medical expenses. Id. at ¶ 12. On his Civil Cover Sheet, plaintiff states that he seeks $2,000,000 in damages. III. DOT’s Role in I-80 Construction Project On May 14, 2012 the DOT granted authorization to the State of New Jersey to proceed with construction near Mile Post 45.7 on I-80 in Parsippany, New Jersey (the “Construction Zone”) and to later seek reimbursement of federal aid funds pursuant to the Federal-Aid Highway Act. See Declaration of Federal Highway Administration Attorney-Advisor Silvio Morales (“Morales Dec.”)2 ¶ 6. In addition, the State of New Jersey receives funding under the Highway Safety Act for 2 This Court may properly consider evidence outside the pleading in ruling on this 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. Gould Electronics, Inc. v. United States, 220 F.3d 169, 176-77 (3d Cir. 2000). Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 10 of 24 PageID: 24 6 Highway Safety Programs via the Highway Safety Improvement Program. See Morales Dec. ¶ 7, 23 U.S.C. §§ 401 et seq., 23 C.F.R. Part 924. Neither the Construction Zone, nor any part of I-80, is owned, operated or controlled by the Department of Transportation, or the Federal Government. Morales Dec. ¶ 9; see also USDOT Denial of SF-95 letter dated May 10, 2016 attached hereto as Exhibit B. IV. Procedural History On March 18, 2016, within two years of the date of plaintiff’s alleged accident, plaintiff filed an administrative tort claim (Standard Form 95) with the DOT. Morales Dec. ¶¶ 2-4; Gonzalez Standard Form 95, attached hereto as Exhibit A. Plaintiff alleged that while driving on I-80 near the Construction Zone, he hit cinder blocks that fell onto the road from a construction site. Exhibit A at § 8. According to plaintiff, the accident resulted in personal injuries and car damage, for which he sought $1,006,000. Id. at § 12(d). On May 10, 2016, the DOT denied his claim. See Exhibit B. The DOT explained that the “roadway [at issue] is not owned, operated, or controlled by the Federal Government. The roadway involved is owned, operated, and controlled either by the City of Parsippany or the State of New Jersey. Any construction or maintenance thereon would be under the supervision and control of the City or State.” Id. Prior to denying the claim, the DOT confirmed that the construction zone near Mile Post 45.7 on I-80 was, at the time of the accident, constructed under a federal-aid project agreement pursuant to the Federal-Aid Highway Act. Morales Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 11 of 24 PageID: 25 7 Dec. ¶ 5. The DOT stated in its denial letter that “under relevant case law, the Federal Government cannot be held liable in tort for alleged negligent design, construction or control of a state highway or sidewalk, even if it was constructed with Federal-aid funds[.].” Id. (citing Mahler v. United States, 306 F.2d 713 (3d Cir. 1962), cert. denied, 371 U.S. 923). On November 8, 2016, plaintiff filed the instant complaint in the District of New Jersey. See ECF No. 1. Plaintiff asserts a single cause of action for negligence against the DOT under the FTCA. ARGUMENT I. Plaintiff’s Complaint Against DOT Should Be Dismissed for Lack of Jurisdiction Plaintiff’s claim against the DOT should be dismissed for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Plaintiff may not assert a tort claim against the DOT because the only proper defendant in an FTCA action is the United States. Moreover, even if the Court were to substitute the United States as the sole defendant, plaintiff’s claim would still be subject to dismissal because the United States has not waived sovereign immunity for its discretionary functions. A. The Court Lacks Jurisdiction Over Claims Against the DOT “[T]he 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) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)). In other words, the Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 12 of 24 PageID: 26 8 Government cannot be sued without its consent, and “the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Although Congress can waive the Government’s sovereign immunity, it can do so only through clear and unequivocal statutory language. See Lane v. Pena, 518 U.S. 187, 192 (1996); Beneficial Consumer Disc. Co. v. Poltonowicz, 47 F.3d 91, 94 (3d Cir. 1995) (waivers of sovereign immunity “must be unequivocally expressed in the statutory text and any such waiver must be strictly construed in favor of the United States”) (internal citations omitted). Accordingly, if the United States has not waived its sovereign immunity, or if the conditions under which the United States has agreed to waive that immunity have not been met, federal subject matter jurisdiction does not exist over a party’s claims against the United States, a federal agency, or a federal official sued in his or her official capacity. See Treasurer of New Jersey v. United States Dep’t of Treasury, 684 F.3d 382, 395-96 (3d Cir. 2012); Clark v. Wells Fargo Bank, 585 F. App’x. 817, 819-20 (3d Cir. 2014). The burden of establishing that the United States has waived sovereign immunity rests squarely on the party asserting claims against the United States. See In re Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 361 (3d Cir. 2001). The FTCA, which provides the exclusive remedy for tort claims against the United States, is a limited waiver of sovereign immunity. See Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009). Pursuant to that statute, the United States shall be liable, to the same extent as a private party, “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 13 of 24 PageID: 27 9 omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. §§ 1346(b), 2679(b)(1). The only proper defendant in an FTCA action is the United States. See 28 U.S.C. § 2679(a); Priovolos v. F.B.I., 632 F. App’x 58, 60 (3d Cir. 2015) (citing CNA v. United States, 535 F.3d 132, 138 n.2 (3d Cir. 2008)). In this case, plaintiff asserts a tort claim of negligence against the DOT (and additional unidentified defendants). “[A] federal agency,” however, “cannot be sued in its own name.” See, e.g., Dambach v. United States, 211 F. App’x 105, 108 (3d Cir. 2006). Because the United States is the only proper defendant in an FTCA case, plaintiff’s claim against the DOT must be dismissed. See, e.g., Grant v. Baldwin, 565 F. App’x 75, 77 (3d Cir. 2014); Dambach, 211 F. App’x. 105 at 108. B. The Discretionary Function Exception to the FTCA Bars Plaintiff’s Claim Against the United States Even if the Court were to substitute the United States as the proper defendant, see, e.g., Wilson v. City of Cherry Hill, No. 10-3866 (RBK/JS), 2011 WL 3651274, at *3 (D.N.J. Aug. 18, 2011), this Court lacks subject matter jurisdiction over plaintiff’s complaint against the United States and should dismiss the complaint under Rule 12(b)(1). Plaintiff fails to set forth a factual basis for his assertion that the United States owns, controls, supervises, maintains or has any involvement with I-80 and/or the Construction Zone. In fact, the only plausible connection that the United States has to the Construction Zone is activity undertaken pursuant to its authority under the Federal-Aid Highway Act, and possibly, though to a lesser extent, the Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 14 of 24 PageID: 28 10 Highway Safety Act. Any alleged actions taken under those statutes, however, qualify as discretionary functions for which the United States has not waived sovereign immunity. 28 U.S.C. § 2680(a). Therefore, this Court lacks subject matter jurisdiction over plaintiff’s tort claim and should dismiss the complaint under Rule 12(b)(1). Although the United States has waived sovereign immunity for certain tort claims through the FTCA, a number of exceptions and conditions limit this waiver. Under the discretionary function exception, the United States retains sovereignty with respect to “[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). The Supreme Court has recognized that this exception is designed to prevent “second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort,” and has established a two-step test to determine whether governmental conduct falls under the discretionary function exception. United States v. Gaubert, 499 U.S. 315, 322-323 (1991) (internal citations omitted); see also Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). Under the first step of the test, a court must “determine whether the act giving rise to the alleged injury and thus the suit involved an element of judgment or choice.” S.R.P. ex rel. Abunabba v. United States, 676 F.3d 329, 332–33 (3d Cir. 2012); see also Gaubert, 499 U.S. at 322. The discretionary function exception does Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 15 of 24 PageID: 29 11 not apply if a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow . . . because the employee has no rightful option but to adhere to the directive.” Abunabha, 676 F.3d at 332 (citing Berkovitz, 486 U.S. at 536). If an element of judgment or choice exists, the court then proceeds to the “second step, which requires [the court] to determine whether the challenged action or inaction is of the kind that the discretionary function exception was designed to shield.” Abunabha, 676 F.3d at 332. “Because the purpose of the exception is to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy . . . the exception protects only governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S. at 323 (internal citations omitted). Thus, under the second step, a court must determine whether the decision is “susceptible to policy analysis,” i.e., whether the decision is grounded in “social, economic, and political policy.” Id. at 323, 325. C. The United States’ Activities With Regarding to the Construction Zone Fall Under the Discretionary Function Exception “As a threshold matter, before determining whether the discretionary function exception applies, a court must identify the conduct at issue.” Abunabba, 676 F.3d at 332. Here, plaintiff accuses the United States of negligence in its purported ownership, control, maintenance and supervision of the Construction Zone. The United States, however, does not own, control, maintain or supervise the Construction Zone under either the Federal-Aid Highway Act, or Highway Safety Act, as discussed below. See, e.g., Mahler, 306 F.2d at 716-17; Morales Dec. ¶ 9. Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 16 of 24 PageID: 30 12 Rather, under the Federal-Aid Highway Act and Highway Safety Act, the Secretary of Transportation approves state highway construction and safety projects based on promulgated regulations. Although the federal government does play a role in the approval and funding of interstate highway projects, the discretionary function exception bars plaintiff from asserting any tort claims based on DOT’s alleged actions under these statutes. Under the Federal-Aid Highway Act, the United States authorizes and provides federal-aid funding for construction projects that the Secretary of Transportation approves. States retain ownership of interstate highways and control of construction projects, as well as responsibility for construction, maintenance and supervision of the projects. See, e.g., 23 U.S.C. §§ 145(a), 114(a), (b), 116 (states retain their “sovereign rights . . . to determine which projects shall be federally financed” and the sole responsibility to construct and maintain them); Mahler, 306 F.2d at 716 (“[I]t is clear . . . that the construction, maintenance and the regulation of highways have remained state functions . . .. The states are at all times the owners of the roads and are primarily responsible for their operation”); Miller, 710 F.2d at 663 (“From the beginning of the federal-aid highway program there has been a preeminent Congressional concern with state autonomy in construction and maintenance . . ..”); see also Federal Highway Administration, Frequently Asked Questions, Question 5, http://www.fhwa.dot.gov/interstate/faq.cfm#question5 (“The States own and operate Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 17 of 24 PageID: 31 13 the Interstate highways” with the exception of the Woodrow Wilson Memorial Bridge).3 Under the Highway Safety Act, the Secretary of Transportation promulgates uniform standards for state highway safety programs and approves the programs, thus qualifying the programs for federal funding. See, e.g., Miller, 710 F.2d at 661; 23 U.S.C. §§ 401 et seq. The Secretary does not have to “require compliance with every uniform standard, or with every element of every uniform standard, in every state.” Id.; 23 U.S.C. § 402(c). To the extent that plaintiff accuses the United States of negligence with regard to the Secretary’s approval of projects, funding, and related actions under the Federal-Aid Highway Act or Highway Safety Act, these actions meet the Supreme Court’s test for determining whether functions are discretionary. The Secretary’s actions meet the Supreme Court’s two step test since they (1) involve the Secretary’s exercise of judgment and choice and (2) involve considerations of public policy. See, e.g., Gaubert, 499 U.S. at 323 (internal citations omitted); see also Berkovitz, 486 U.S. at 536-37. The Secretary must exercise his judgment and choice in determining whether to approve and fund a state highway construction project and/or safety program because the “statutes and regulations at issue [i.e., the Federal-Aid Highway Act 3 Under the Federal-Aid Highway Act, the term “State” means “any of the 50 states, the District of Columbia or Puerto Rico.” 23 U.S.C. § 101(a)(26). Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 18 of 24 PageID: 32 14 and Highway Safety Act] fail to provide a fixed or readily ascertainable standard.” See, e.g., Miller, 710 F.2d at 663. Neither the Federal-Aid Highway Act nor the Highway Safety Act mandates any specific action with regard to the evaluation and approval of proposed construction projects or state highway safety programs and related actions. Rather, the statutes governing the Secretary’s approval call for the Secretary to consider a number of factors, including: durability, economy, pollution, aesthetics, natural conservation, employment and tax impacts, and safety. See, e.g., 23 U.S.C. §§ 109, 402(a); Mahler, 306 F.2d at 723 (discretionary function exception bars claim arising out of car accident on federally-funded highway because, inter alia, the “statutory language pertaining to safety is but one of numerous standards to which the Secretary . . . must look in determining whether or not approval is to be given to the design and specifications for a highway project”); Rothrock v. United States, 62 F.3d 196, 199 (7th Cir. 1995) (“The sheer number of factors involved [in approving transportation funding requests under the Federal-Aid Highway Act] suggests that Congress intended these decisions to be made as an exercise of judgment and choice.”). Despite the guidelines that the DOT has developed to assist states in seeking approval under the Federal-Aid Highway Act and Highway Safety Act, the Secretary retains discretion to approve state projects that do not meet the guidelines. See 23 CFR § 625.3(f)(2); 23 U.S.C. § 402; Miller, 710 F.2d at 660-61. In addition, the Secretary’s actions meet the second step of the discretionary function inquiry because the Secretary’s decision to approve highway construction Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 19 of 24 PageID: 33 15 projects is susceptible to policy analysis. The Federal-Aid Highway Act calls for the Secretary to consider a number of factors and evaluate each proposed construction project in light of the “best overall public interest.” See, 23 U.S.C. § 109(h); Miller, 710 F.2d at 664, 666. The Secretary must exercise his “judgment in fashioning a highway in the best overall public interest out of the welter of public policy considerations Congress has designated.” Id. at 665-66; Rothrock, 62 F.3d at 199 (“We presume that the actions are grounded in public policy in cases where the statute or regulations allow the Government agent to exercise discretion”). “Furthermore, in expressly requiring that funding decisions consider the ‘economic, social, and environmental effects’ of a particular project, never could Congress have more explicitly conveyed that such decisions are grounded in social, economic, and political policy.” Ayres v. Mayor and City Council, 317 F. App’x 307, 312 (4th Cir. 2008) (internal citations omitted). Applying these principles, the Third Circuit and other courts consistently held that the discretionary function exception to the FTCA bars claims against the United States for allegedly negligent design, construction, approval, and maintenance of federally-funded highway projects. See, e.g., Mahler, 306 F.2d at 722-23; Miller, 710 F.2d at 665-66, Ayres, 317 F. App’x at 311; Rothrock, 62 F.3d at 198-201, Delgadillo v. Elledge, 337 F. Supp. 827, 833 (E.D. Ark. 1972). Because the United States’ actions with regard to the Construction Zone involved judgment and choice and were grounded in public policy, its conduct falls under the discretionary function exception to the FTCA’s general waiver of sovereign immunity. This Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 20 of 24 PageID: 34 16 Court, therefore, lacks subject matter jurisdiction over Plaintiff’s complaint against the United States and should dismiss under Rule 12(b)(1). II. Plaintiff’s Complaint Against the United States Should Be Dismissed For Failure to State a Claim This Court should dismiss plaintiff’s complaint against the United States for the additional reason that the plaintiff fails to plausibly allege a negligence claim under New Jersey law. The plaintiff never provides a factual basis for his assertion that the United States owed him a duty relevant to his alleged injuries. To survive a motion to dismiss brought pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11) (3d Cir. 2009). A plaintiff’s claims will be “plausible” if the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The complaint must present factual allegations that are “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555-57. “Factual allegations must be enough to raise a right to relief above the speculative level” id. at 555; and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” will not survive a motion to dismiss. Iqbal, 556 U.S. at 678. Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 21 of 24 PageID: 35 17 The FTCA waives sovereign immunity only 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), 2674. This Court should therefore apply New Jersey law in assessing the sufficiency of plaintiff’s FTCA-based negligence claim. See, e.g., Hawkins v. United States, No. CIV.A. 03- 3979 (JAG), 2006 WL 436124, at *3 (D.N.J. Feb.21, 2006) (in analyzing FTCA negligence claim, court must apply law of the state of the occurrence). This is because the “FTCA does not itself create a substantive cause of action against the United States; rather, it provides a mechanism for bringing a state law tort action against the federal government in federal court.” See, e.g., Lomando v. United States, 667 F.3d 363, 372-73 (3d Cir. 2011) (internal citations and quotation marks omitted). “The extent of the United States’ liability under the FTCA is generally determined by reference to state law.” Id; Santos ex rel. Beato, 559 F.3d at 193 (stating that “substantively the FTCA follows state liability law.”). Thus, to survive a motion to dismiss, the plaintiff must assert a cognizable claim for negligence under New Jersey state law. To state a claim for negligence in New Jersey, the plaintiff must allege: “(1) that the defendant owed the plaintiff a particular duty relevant to the alleged injury; (2) that defendant somehow breached that duty; and (3) that the defendant’s breach proximately caused the alleged injury.” See, e.g., Abdul-Mateen v. Federal Bureau of Prisons, No. 11-4715 (NLH), 2012 WL 2087451, at *2 (D.N.J. June 8, 2012); see also Fedoroczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 73-74 (3d Cir. 1996) (explaining causation). Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 22 of 24 PageID: 36 18 Here, plaintiff fails to plausibly allege that the United States owed plaintiff a duty relevant to his alleged injuries under New Jersey law. Abdul-Mateen, 2012 WL 2087451, at *1. As discussed above, the United States does not own or maintain interstate highways (with one exception not applicable here) and plaintiff alleges no facts concerning the United States’ approval and funding of a state construction project that could give rise to a duty under New Jersey law. Cf. Delgadillo, 337 F. Supp. at 832 (finding “no applicable rule of law in Arkansas which would impose liability on a private person under similar circumstances” regarding claims of negligent planning, installation and maintenance of highway signs on I-40). Because the plaintiff has failed to set forth sufficient facts to plausibly allege that the United States owed plaintiff a duty of care relevant to his alleged injuries under New Jersey law, plaintiff’s FTCA negligence claim fails. This court, therefore, should dismiss plaintiff’s complaint against the United States for failure to state a claim pursuant to Rule 12(b)(6). CONCLUSION For the foregoing reasons, the United States respectfully requests that this Court grant its motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim. Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 23 of 24 PageID: 37 19 Dated: Newark, New Jersey January 23, 2017 Respectfully submitted, PAUL J. FISHMAN United States Attorney By: s/ Susan J. Pappy SUSAN J. PAPPY Assistant United States Attorney Attorneys for Defendant Case 2:16-cv-08351-SRC-CLW Document 5-1 Filed 01/23/17 Page 24 of 24 PageID: 38 Case 2:16-cv-08351-SRC-CLW Document 5-2 Filed 01/23/17 Page 1 of 2 PageID: 39 Case 2:16-cv-08351-SRC-CLW Document 5-2 Filed 01/23/17 Page 2 of 2 PageID: 40 EXHIBIT A Case 2:16-cv-08351-SRC-CLW Document 5-3 Filed 01/23/17 Page 1 of 4 PageID: 41 Case 2:16-cv-08351-SRC-CLW Document 5-3 Filed 01/23/17 Page 2 of 4 PageID: 42 Case 2:16-cv-08351-SRC-CLW Document 5-3 Filed 01/23/17 Page 3 of 4 PageID: 43 Case 2:16-cv-08351-SRC-CLW Document 5-3 Filed 01/23/17 Page 4 of 4 PageID: 44 EXHIBIT B Case 2:16-cv-08351-SRC-CLW Document 5-4 Filed 01/23/17 Page 1 of 2 PageID: 45 Case 2:16-cv-08351-SRC-CLW Document 5-4 Filed 01/23/17 Page 2 of 2 PageID: 46 PAUL J. FISHMAN United States Attorney SUSAN J. PAPPY Assistant United States Attorney 970 Broad Street, Suite 700 Newark, NJ 07102 Tel. (973) 645-2877 Fax. (973) 297-2010 email: susan.pappy@usdoj.gov UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY VICTOR GONZALEZ, JR., Plaintiff, v. UNITED STATES DEPARTMENT OF TRANSPORTATION, ET AL, Defendants. Hon. Stanley R. Chesler Civil Action No. 2:16-08351 (SRC) (CLW) This matter having been opened to the Court by Paul Fishman, United States Attorney for the District of New Jersey, attorney for defendant, for an order dismissing plaintiff’s FTCA claim (First Count) against the United States pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) and the Court having considered the matter, it is on this day of , 2017, Ordered that the claim is dismissed with prejudice. Case 2:16-cv-08351-SRC-CLW Document 5-5 Filed 01/23/17 Page 1 of 2 PageID: 47 ______________________________________ HONORABLE STANLEY R. CHESLER, U.S.D.J. United States District Court Case 2:16-cv-08351-SRC-CLW Document 5-5 Filed 01/23/17 Page 2 of 2 PageID: 48 CERTIFICATE OF SERVICE I, Susan J. Pappy, Assistant United States Attorney for the District of New Jersey, hereby certify that on January 23, 2017, the foregoing Notice of Motion, Memorandum of Law in Support of Motion to Dismiss and supporting documents, and Proposed Order were served on counsel for plaintiff via the ECF system. Dated: Newark, New Jersey January 23, 2017 /s/ Susan J. Pappy SUSAN J. PAPPY Assistant United States Attorney Case 2:16-cv-08351-SRC-CLW Document 5-6 Filed 01/23/17 Page 1 of 1 PageID: 49