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Jahr v. United States

United States District Court, W.D. Washington, Seattle

May 2, 2017

TRACY JAHR, et al., Plaintiff,


          Barbara Jacobs Rothstein U.S. District Court Judge


         Plaintiffs Brenda Thomas and Timothy York[1] bring this wrongful death action under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671, et seq., alleging negligence by the United States Army resulting in the December 2011 murder of their daughter, Tiffany York (“York”). The Government moves for summary judgment on Plaintiffs' claims, asserting they are barred by the discretionary function exception to the FTCA and must be dismissed. Alternatively, the Government argues that Plaintiffs' negligence claims fail as a matter of law because the Army did not have a duty to protect York from third-party criminal acts. Finally, the Government contends that Plaintiffs cannot demonstrate that any negligent acts on the part of the Army proximately caused York's murder. Having reviewed the parties' briefing, the record of the case, as well as the relevant legal authority, the Court will grant in part and deny in part the Government's Motion for Summary Judgment [Dkt. #47]. Further, the Court orders additional briefing, a schedule for which will be set forth in a companion order.


         Seventeen year-old Tiffany York was murdered by four active-duty soldiers on December 5, 2011, in the woods outside of the Army's base at Fort Stewart, Georgia. York was on base visiting her boyfriend, Michael Roark, [2] who was also murdered that night. Plaintiffs allege that the soldiers responsible for the murders-Isaac Aguigui, Christopher Salmon, Michael Burnett, and Anthony Peden-were part of an anti-government militia group called “Forever Enduring Always Ready” or “FEAR, ” and that Roark was murdered because he threatened to expose the group. Cmplt. Dkt. 1, ¶¶ 11-12, 15.

         It is undisputed that, at the time of York's murder, the U.S. Army Criminal Investigative Command (CID) had identified Aguigui as a “person of interest” in the July 2011 death of his wife, Deirdre Aguigui, who was also a soldier in the Army.[3] It is also undisputed that, after his wife's death, Aguigui received a package of death benefits from the Army-a death gratuity, as well as the proceeds of his wife's Servicemember Group Life Insurance Policy (SGLI)-totaling over $500, 000. Plaintiffs allege that Aguigui-the ringleader of FEAR-used this sum of money to purchase a stockpile of weapons for his fledgling citizens' militia, including the gun that was used to kill York. Id. ¶ 42.

         Plaintiffs bring this suit under the FTCA alleging that the Army was negligent in its investigation of Aguigui's activities and failed to mitigate the threat that he posed to members of the public, including York. Specifically, Plaintiffs allege that the Army is responsible for the following negligent acts, all of which, Plaintiffs allege, contributed to the death of their daughter: (1) the disbursement of death benefits to Aguigui in spite of his status as a person of interest in his wife's death; (2) the mishandling of the investigation of the death of Aguigui's wife-in particular, the delay in conducting “canvass interviews” of soldiers in Aguigui's unit and obtaining records explaining why Aguigui was expelled from the West Point preparatory academy; (3) the failure of Aguigui's commanding officer, Sgt. Scott Zipp, to report Aguigui's day-to-day misconduct; (4) the failure to discharge Aguigui from the Army prior to York's murder; and (5) the failure of soldiers to report Aguigui's antigovernment comments and behavior.[4]


         A. Summary judgment standard

         Summary judgment is proper “if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. If the moving party does not bear the ultimate burden of persuasion at trial, it can show the absence of a dispute of material fact in two ways: (1) by producing evidence negating an essential element of the nonmoving party's case, or (2) by showing that the nonmoving party lacks evidence of an essential element of its claim. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party meets its burden of production, the burden then shifts to the nonmoving party to identify specific facts from which a fact finder could reasonably find in the nonmoving party's favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 252.

         The Court is “required to view the facts and draw reasonable inferences in the light most favorable to the [nonmoving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007). The court may not weigh evidence or make credibility determinations in analyzing a motion for summary judgment because these responsibilities belong to the fact-finder. Anderson, 77 U.S. at 249-50. Nevertheless, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott, 550 U.S. at 380 (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)). Accordingly, “mere allegation and speculation do not create a factual dispute for purposes of summary judgment.” Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081 (9th Cir. 1996).

         B. The FTCA framework

         The FTCA waives the Government's sovereign immunity “for tort claims arising out of negligent conduct of government employees acting within the scope of their employment.” Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008). The Government can be sued “under circumstances 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). The Government's waiver is limited by a number of exceptions, including the discretionary function exception, which precludes 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 employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). Where the exception applies, sovereign immunity is restored, and the Court does not have subject matter jurisdiction to consider the plaintiff's claims under the FTCA. Lesoeur v. United States, 21 F.3d 965, 967 (9th Cir. 1994).

         Courts undertake a two-step analysis in determining whether the discretionary function is applicable. Terbush, 516 F.3d at 1129. First, the Court must determine “whether the challenged actions involve an ‘element of judgment or choice.'” Id. (quoting United States v. Gaubert, 499 U.S. 315, 322 (1991)). This first prong is not met if “a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Berkovitz v. United States, 486 U.S. 531, 536 (1988). “If there is such a statute or policy directing mandatory and specific action, the inquiry comes to an end because there can be no element of discretion when the employee ‘has no rightful option but to adhere to the directive.'” Terbush, 516 F.3d at 1129 (quoting Berkovitz, 486 U.S. at 536). The proper level of inquiry as to whether a function is discretionary is “act by act.” In re Glacier Bay, 71 F.3d 1447, 1451 (9th Cir. 1995). The question “is not whether the Government as a whole had discretion at any point, but whether its allegedly negligent agents did in each instance.” Id.

         If there is no specific course of action prescribed, then the Court must next consider whether the element of choice or judgment involved in the challenged decision or action “is of the kind that the discretionary function was designed to shield.” Berkovitz, 486 U.S. at 536. In order to fall under the discretionary function exception, the choice or judgment exercised must be “one involving social, economic, or political policy.” Vickers v. United States, 228 F.3d 944, 949 (9th Cir. 2000). “Because the purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort, . . . the exception protects only governmental actions and decisions based on considerations of public policy.” Gaubert, 499 U.S. at 323 (internal citations and quotations omitted). When “established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion.” Gaubert, 499 U.S. at 324. “Both the discretionary act prong and the policy judgment prong of the discretionary function exception must be satisfied.” Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996).

         C. The discretionary function exception as applied to Plaintiffs' claims

         1. The disbursement of life-insurance proceeds

         It is undisputed that the U.S. Army Casualty Affairs Office (CAO) disbursed over half-a-million dollars to Aguigui after his wife's death. Plaintiffs allege that this disbursement of funds was negligent because, at that time, Aguigui was a person of interest in the investigation of his wife's death.[5] The Government contends that the disbursement of life-insurance proceeds is at the discretion of the Army. The statute governing SGLI payments instructs only that life-insurance proceeds be paid to the policyholder's surviving beneficiary “upon the establishment of a valid claim.” 38 U.S.C. § 1970(a). The corresponding regulation does not provide any ...

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