Eppel v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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Irena Eppel,

Plaintiff, MEMORANDUM & ORDER

19-cv-5555 (EK)(MMH)

-against-

United States of America,

Defendant.

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ERIC KOMITEE, United States District Judge:

Irena Eppel sued the federal government under the

Federal Tort Claims Act after she tripped and fell on a sidewalk

abutting federal property. The government has moved to dismiss,

arguing that the FTCA’s discretionary function exception

deprives this Court of subject-matter jurisdiction. For the

following reasons, the government’s motion to dismiss is

granted.

Background

The facts recited below are derived from the

Complaint, ECF No. 1, and the plaintiff’s April 12, 2024 letter,

ECF No. 52. “[T]he allegations of the complaint should be

construed favorably to the pleader” on a motion to dismiss for

lack of subject matter jurisdiction. Scheuer v. Rhodes, 416

U.S. 232, 236 (1974). On August 6, 2015, Eppel allegedly

tripped and fell on a sidewalk near the Department of Veterans

Affairs New York Harbor Healthcare System Manhattan Campus

(“VAMC”). See Compl. ¶¶ 8, 32-33. Eppel suffered “severe and

permanent injuries” in the fall. See id. ¶ 34. Eppel does not

contend that the government created the sidewalk condition. Nor

does she allege that the federal government owns the sidewalk in

question. See id. ¶ 17 (describing the sidewalk as “abutting

the [federal] premises”). Rather, she claims that the VA failed

to maintain the sidewalk in the manner required by the New York

City Administrative Code (“NYC Code”), giving rise to federal

liability. See id. ¶¶ 15-19; Pl. Ltr. at 4-5, ECF No. 52.

Though this case was filed in October 2019,1 the

government did not move to dismiss for lack of jurisdiction

until May 2024. The parties (and the Court) have now expended

significant time and resources on motion practice, discovery,

mediation, and trial preparation. While defects in subject

matter jurisdiction may of course be raised at any time, the

Court reiterates the point made at oral argument: the government

should establish a process to ensure earlier consideration of

potential jurisdictional defects.2

1 The case was transferred to the undersigned on March 2, 2020.

2 This is not the first time this issue has arisen before the

undersigned. See, e.g., Harrison v. United States, No. 17-CV-5049, 2023 WL

8860409 (E.D.N.Y. Dec. 19, 2023).

Standard of Review

“A case is properly dismissed for lack of subject

matter jurisdiction under Rule 12(b)(1) when the district court

lacks the statutory or constitutional power to adjudicate it.”

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).3

When considering a motion to dismiss for lack of subject matter

jurisdiction under Rule 12(b)(1), a court must “accept as true

all material allegations of the complaint, and must construe the

complaint in favor of the complaining party.” Bohnak v. Marsh &

McLennan Cos., Inc., 79 F.4th 276, 283 (2d Cir. 2023); Nat. Res.

Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006).

Furthermore, “[i]n resolving a motion to dismiss for lack of

subject matter jurisdiction under Rule 12(b)(1), a district

court . . . may refer to evidence outside the pleadings.”

Makarova, 201 F.3d at 113.

Discussion

We begin with a discussion of the Federal Tort Claims

Act (the “FTCA”), its waiver of sovereign immunity, and the

limits on that waiver that emerge from the discretionary

function exception (the “DFE”). We then proceed to assess the

two prongs of the DFE in sequence, concluding that both are

satisfied.

3 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

A. The FTCA and the Discretionary Function Exception

Because the United States is the defendant, the case

presents unique jurisdictional concerns. Sovereign immunity

generally shields the United States from suit. FDIC v. Meyer,

510 U.S. 471, 475 (1994). “It is axiomatic that the United

States may not be sued without its consent and that the

existence of consent is a prerequisite for jurisdiction.”

United States v. Mitchell, 463 U.S. 206, 212 (1983). When the

United States does waive sovereign immunity, federal courts must

strictly police any “limitations and conditions upon which the

Government consents to be sued,” and “exceptions” to those

limits and conditions “are not to be implied.” Lehman v.

Nakshian, 453 U.S. 156, 161 (1981). Explicit consent,

therefore, is a prerequisite for subject matter jurisdiction.

See Mitchell, 463 U.S. at 212; United States v. Sherwood, 312

U.S. 584, 586 (1941).

The FTCA sets out a waiver of sovereign immunity.

Congress decreed that the United States would accept liability

in tort “in the same manner and to the same extent as a private

individual under like circumstances.” 28 U.S.C. § 2674; see

also 28 U.S.C. § 1346(b)(1) (establishing original jurisdiction

over tort actions against the United States).4

4 Section 1346(b)(1) provides the federal district courts with

jurisdiction over

At the same time, the FTCA expressly excludes certain

categories of claims from its waiver. These include claims

based on a discretionary function. The FTCA excludes:

Any claim based upon an act or omission of an employee

of the Government, 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 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 DFE “is thus a form of retained

sovereign immunity,” In re World Trade Ctr. Disaster Site

Litig., 521 F.3d 169, 190 (2d Cir. 2008); when it applies,

federal courts lack subject matter jurisdiction. See Fazi v.

United States, 935 F.2d 535, 537 (2d Cir. 1991).

Courts apply a two-part test — the Berkovitz-Gaubert

test — to determine whether a claim is based upon an agency’s

performance of a discretionary function. See United States v.

Gaubert, 499 U.S. 315, 322-23 (1991); Berkowitz ex rel.

Berkowitz v. United States, 486 U.S. 531, 536 (1988). The DFE

applies “only if two conditions are met: (1) the acts alleged to

be negligent must be discretionary, in that they involve an

civil actions on claims against the United States, for money

damages . . . for personal injury or death caused by the

negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or

employment, 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.

element of judgment or choice and are not compelled by statute

or regulation and (2) the judgment or choice in question must be

grounded in considerations of public policy or susceptible to

policy analysis.” Coulthurst v. United States, 214 F.3d 106,

109 (2d Cir. 2000).

The federal laws governing sidewalk repair make clear

that both prongs of the Berkovitz-Gaubert test are met in this

case. Eppel’s claim is thus barred by the DFE.

B. The Federal Legal Scheme Involves Judgment and Choice

The first prong of the Berkovitz-Gaubert test asks

whether the allegedly negligent conduct was discretionary,

meaning that it “involves an element of judgment or choice.”

See Berkowitz, 486 U.S. at 536. The search for such an element

is not “confined to the policy or planning level.” Gaubert, 499

U.S. at 325. Rather, an agency’s “[d]ay-to-day management” will

often require “judgment as to which of a range of permissible

courses is the wisest.” Id. If an obligation is discretionary,

even a total failure to act in respect of that obligation will

qualify as discretionary action. See 28 U.S.C. § 2680(a); In re

World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 190 (2d

Cir. 2008) (“The FTCA . . . waiver of federal sovereign immunity

does not encompass actions based upon the performance of, or

failure to perform, discretionary functions.”).

At the same time, agency action does not involve

judgment when “a federal statute, regulation, or policy

specifically prescribes a course of action for an employee to

follow.” Berkovitz, 486 U.S. at 536. Put differently, a

government action is non-discretionary when it is “inconsistent

with a specific mandatory directive.” Cangemi v. United States,

13 F.4th 115, 130 (2d Cir. 2021) (citing Berkovitz, 486 U.S. at

536).

Here, the applicable statute and regulation are

expressly non-mandatory. The governing statute — 40 U.S.C. §

589(a) — states that an executive agency “may install, repair,

and replace sidewalks around buildings, installations, property,

or grounds” that are under the agency’s control and owned by the

United States. (Emphasis added.) As the Court of Appeals has

(unsurprisingly) observed, the word “may” implies a permissive,

rather than mandatory, instruction. See, e.g., Photopaint

Technologies, LLC v. Smartlens Corp., 335 F.3d 152, 156 (2d Cir.

2003) (collecting cases).

The applicable regulation is perhaps even more

obviously discretionary. 41 C.F.R. § 102–74.580, entitled “Who

decides when to replace a sidewalk?” states that:

Federal agencies, giving due consideration to State

and local standards and specifications for sidewalks,

decide when to install, repair or replace a sidewalk.

However, federal agencies may prescribe other

standards and specifications for sidewalks whenever

necessary to achieve architectural harmony and

maintain facility security.

The regulation thus identifies certain state-and-local inputs

for the agency’s “consideration,” but in the end leaves it to

the agency to “decide” when to take action and what action to

take (e.g., repair versus replacement). This plainly involves

the exercise of judgment and choice contemplated by Gaubert and

Berkovitz.

Two other district courts analyzing this same sidewalk

scheme also concluded that the agencies’ obligations satisfied

the Berkovitz–Gaubert test. See Mejia v. United States, No. 13-

CV-5676, 2015 WL 5138708, at *9 (S.D.N.Y. Sept. 1, 2015); Gagne

v. United States, No. 3:21-CV-1601-VLB, 2023 WL 143163, at *5

(D. Conn. Jan. 10, 2023). Judge Nathan’s decision in Mejia is

persuasively reasoned and is on all fours with this case.

There, as here, the plaintiff allegedly tripped and fell on a

New York City sidewalk abutting federal property (a Coast Guard

facility, in that case). 2015 WL 5138708, at *1. The same

statutory scheme was at issue in Mejia: 40 U.S.C. § 589(e) and

41 C.F.R. § 102–74.580. Id. at *5-7.5 Judge Nathan read these

authorities to confer “wide latitude” on federal agencies in

connection with the timing (and extent) of sidewalk repairs.

5 Judge Nathan also noted Coast Guard protocols — a subject on which the

parties to that case had provided “copious detail.” Mejia, 2015 WL 5138708,

at *2, *6.

Id. This conclusion is incontestable, given the language at

issue.

Eppel argues that a more apt case for comparison is

Gotha v. United States, 115 F.3d 176 (3d Cir. 1997). This

argument does not carry the day. Gotha was a straightforward

common-law negligence case arising out of the U.S. Navy’s

failure to install guardrails and lighting on a steep outdoor

footpath. It is distinguishable from this case in that no

federal statute or regulation directly addressed the Navy’s

decision, id. at 393-95, whereas here we have a federal statute

and regulation that are plainly discretionary on their face.

Mejia, too, declined to follow Gotha’s lead. 2015 WL 5138708,

at *9. In any event, Gotha is of course non-binding here.

Thus, the statutes and regulations governing

maintenance of VA-adjacent sidewalks leave considerable “room

for choice or judgment.” Gaubert, 499 U.S. at 324.

Accordingly, the first prong of the Berkovitz–Gaubert test is

met.

C. The VA’s Decision Was Susceptible of Policy Analysis

Once the challenged agency conduct passes the first

prong of the Berkovitz–Gaubert test, the Court must ask whether

the agency’s “judgment is of the kind that the discretionary

function exception was designed to shield.” Berkovitz, 486 U.S.

at 536. Congress enacted the DFE 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.” Gaubert, 499 U.S. at 323.

The two prongs of the Berkovitz-Gaubert test are not

uncorrelated. The Court counseled in Gaubert that when the

first prong (statutory or regulatory discretion) goes in the

government’s favor, the government is likely to succeed on the

second prong (grounding in policy) as well. The Court wrote

that when “a regulation allows the employee discretion, the very

existence of the regulation creates a strong presumption that a

discretionary act authorized by the regulation involves

consideration of the same policies which led to the promulgation

of the regulations” at issue. 499 U.S. at 324.6

This is true not only in the context of policymaking

by higher executives, but also of lower-level operational

personnel: where “there is discretion,” the “acts of

subordinates in carrying out the operations of government in

accordance with official directions cannot be actionable.”

United States v. S.A. Empresa de Viacao Aerea Rio Grandense

(Varig Airlines), 467 U.S. 797, 811 (1984); see also id. at 820

6 This presumption was important enough that the Gaubert Court

effectively repeated it: “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.” Id. at 324 (emphasis

added).

(FAA employees’ “alleged negligence in failing to check certain

specific items in the course of certificating a particular

aircraft falls squarely within the discretionary function

exception”).

Thus, when the government succeeds in demonstrating

that the legal regime affords discretion, the plaintiff bears

the burden of alleging “facts which would support a finding that

the challenged actions are not the kind of conduct that can be

said to be grounded in the policy of the regulatory regime.”

Gaubert, 499 U.S. at 324-25. Eppel has not carried that burden.

Here, the decisions that Congress hoped to shield from

second-guessing were about budgetary prioritization — that is,

considerations of economic policy. Because funds for sidewalk

maintenance come from funds generally available for VA

maintenance, decisions about whether and when to repair the

sidewalk necessarily implicate agency prioritization among

projects. See 40 U.S.C. § 589(d) (source of funding for

maintenance); 41 C.F.R. § 102-74.10 (setting out factors for the

VA’s consideration when making maintenance decisions). Where an

agency must “prioritize among [repair] projects because of its

restricted budget and its limited ability to make repairs,” its

decision-making “legitimately exercise[s] discretion.” Mitchell

v. United States, 225 F.3d 361, 364 (3d Cir. 2000).7

Moreover, the language of another applicable

regulation shows Congress choosing to afford agencies less

discretion over building maintenance than sidewalk maintenance.

Under Section 102-74.10, the “maintenance of buildings . . .

must . . . [m]eet nationally recognized standards,” among other

factors. Yet, federal agencies may “decide when to . . . repair

or replace a sidewalk” without meeting national or local

standards. 41 C.F.R. § 102-74.580. This comparison highlights

the latitude embedded in the regulation at issue here.

Courts have consistently found that agency

consideration of similar factors merits application of the DFE.

See, e.g., Reichhart v. United States, 408 Fed. App’x 441, 443

(2d Cir. 2011) (affirming dismissal under DFE; policy factors

included the cost to repair a pier and allocation of resources);

Coulthurst, 214 F.3d at 109 (DFE applies to “choices motivated

by considerations of economy, efficiency, and safety”); Gagne,

2023 WL 143163, at *5 (“[T]he decision on whether to repair or

replace a sidewalk is a policy judgment the discretionary

function exception is designed to shield.”). The VA’s judgment

7 Mitchell analyzed this proposition regarding prong one of the

Berkovitz–Gaubert test. However, the discussion is applicable to both

elements.

concerning whether and when to repair a sidewalk is a

discretionary decision susceptible to policy analysis.

D. Plaintiff’s Reliance on the NYC Administrative Code Is

Unavailing

In her effort to identify a non-discretionary duty,

Eppel looks to the law of New York City. She invokes two City

ordinances. The first, Section 7-210 of the City’s

Administrative Code, imposes a “duty” on the “owner of real

property abutting any sidewalk” to “maintain such sidewalk in a

reasonably safe condition,” and establishes liability for the

failure to do so. NYC Code § 7-210. And the second, Section

19-152, dictates that property owners “shall,” in specified

circumstances, “repave, reconstruct and repair” sidewalks to

address any “substantial defect.” NYC Code § 19-152.8

Eppel asserts that these requirements “were in effect

at all relevant times” in this case, Pl.’s Opp. Br. at 5, ECF

No. 62, and that “as the owner of the abutting premises,” the

federal government “was obligated to comply with those sections

of the Administrative Code” unless the Code was “superseded by

federal law.” Id. Eppel goes on to argue that the City’s rules

“were not” superseded by any federal law. Id. Instead, she

8 Section 19-152 defines a “substantial defect” in a sidewalk flag to

include a “vertical grade differential between adjacent sidewalk flags . . .

greater than one half inch,” “hardware or other appurtenances not flush

within 1/2 [inch] of the sidewalk surface” and “patchwork” meaning “less than

full-depth repairs to all or part of the surface area of broken, cracked or

chipped flag(s).”

asserts, federal law allows agencies to deviate from the local

ordinance for only two enumerated reasons: to “achieve

architectural harmony” and to “maintain facility security,” as

set out in 41 C.F.R. § 102-74.10. See id.

Under the FTCA, state law controls on the question of

whether the plaintiff has stated a claim on which relief can be

granted. See 28 U.S.C. § 1346(b)(1) (authorizing tort-law suits

against the United States “in accordance with the law of the

place where the act or omission occurred”). Plaintiff’s

invocation of the City’s Administrative Code thus might carry

the day if the government were moving to dismiss for failure to

state a claim. The problem for the plaintiff is that federal

law controls when it comes to the interpretation of the FTCA’s

exclusions. See United States v. Neustadt, 366 U.S. 696, 705–

706 (1961) (noting that the scope of FTCA exceptions “depends

solely upon what Congress meant by the language it used,” rather

than any state law); see also 2 Jayson & Longstreth, Handling

Federal Tort Claims §§ 9.09, 11.07.

The government argues that federal law governing

agencies’ sidewalk maintenance “supersedes” the more specific

guidance in Section 19-152, and that the FTCA “modifies the

scope of any duty imposed” by the City in the event of a

conflict. Def. Ltr., ECF No. 49. In support, the government

cites Roditis v. United States, 122 F.3d 108, 112 (2d Cir.

1997), which held that in the face of a conflict between federal

and state-law obligations, the federal government may not be

held liable “even where state law would impose liability.” See

also Jencks v. United States, No. 18-CV-1454 (BMC), 2018 WL

4326930, at *3 (E.D.N.Y. Sept. 10, 2018) (holding that when a

conflict between the FTCA and state law arises, “the case law is

clear that sovereign immunity prevails,” and citing Roditis and

other cases).

The government is correct that New York law cannot

impose a direct duty on the federal government — at least not

one that is in conflict with federal law, as the City rules are

here to the extent that they are mandatory. Eppel, in contrast,

is not correct that federal law incorporates the New York City

requirements here except to the extent that “architectural

harmony” or “facility safety” require otherwise. This assertion

is based on Eppel’s misreading of the federal regulation, which

first establishes “wide latitude” for decision-making in respect

of sidewalk maintenance, as Judge Nathan put it, and only

thereafter invites the agency to “prescribe other standards and

specifications” regarding architecture and safety if it chooses.

See Mejia, 2015 WL 5138708, at *6.

No court has held that the NYC Code sidewalk

maintenance standard is incorporated by reference into the

federal regulation. Such a holding would be inconsistent with

the plain language of the statute, which mandates

“consideration” rather than compliance. See generally id., 2015

WL 5138708, at *9. Eppel therefore cannot overcome the DFE.

Berkovitz, 486 U.S. at 536.

Conclusion

The government’s motion is granted, and the case is

dismissed without prejudice. See Leytman v. United States, 832

Fed. App’x. 720, 722 (2d Cir. 2020) (“[W]hen a case is dismissed

for lack of federal subject matter jurisdiction, Article III

deprives federal courts of the power to dismiss the case with

prejudice.”). The Clerk of the Court is respectfully directed

to close the case.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United State s District Judge

D ated: August 7, 2024

Brooklyn, New Y ork