JURISIDICTION: United States District Court for the Eastern District of Louisiana

Plaintiff brought this action on behalf of her deceased husband, Jerry Graves, who passed away from mesothelioma.

She alleges that Mr. Graves died as a result of his exposure to asbestos at NASA’s Michoud Assembly Facility (MAF) between 1977 and 2010. Throughout that time, Mr. Graves allegedly worked as an employee of Martina Marietta Technologies Inc., and its successor entity, Lockheed Martin Corporation (together, “Lockheed”).

Plaintiff alleges Mr. Graves was regularly and routinely exposed to injurious levels of asbestos at various MAF buildings and that NASA, despite its awareness of the asbestos, negligently failed to take appropriate actions to remediate, contain, or abate the hazardous conditions and failed to follow mandatory asbestos regulations. Plaintiff also alleges that NASA failed to “warn building occupants, including the decedent, of the presence of friable asbestos in the MAF building where the decedent worked.” Plaintiff alleges that, as a direct result of that asbestos exposure, Mr. Graves contracted malignant mesothelioma, from which he died on June 5, 2023.

Plaintiff sued the United States under the Federal Tort Claims Act (FTCA). The United States moved to dismiss the action for lack of subject matter jurisdiction, under Federal Rule of Civil Procedure 12(b)(1), asserting that plaintiff’s claims fall outside the FTCA’s limited waiver of sovereign immunity. Plaintiff opposed the motion and moved in the alternative for jurisdictional discovery and for leave to amend.

The plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. The FTCA is a limited waiver of sovereign immunity and subjects the United States to tort liability if a private person would be liable for the same act under state law.

The discretionary function exception provides that the government is not liable for “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 . . . 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 . . . .” 28 U.S.C. § 2680(a). The exception covers only acts that are discretionary in nature and involve an element of judgment or choice. The Fifth Circuit uses a two-prong test to determine whether a government agency’s actions fall within the discretionary function exception.

As to the first prong, a plaintiff must identify a federal “statute, regulation, or policy” that specifically prescribes a course of action for the employee to follow to establish an absence of discretion. Freeman, 556 F.3d at 337 (5th Cir. 2009). If a federal employee or agency is not bound to act “in a particular manner” by such a statute, regulation, or policy, then the conduct is discretionary. Here, plaintiff pointed to no federal statute, regulation, or policy specifically prescribing a course of action for NASA to follow as to asbestos mitigation. Plaintiff instead argued that “federal statutes, regulations, and NASA policies required [NASA] to take protective and remedial action relating to asbestos hazards.” These broad claims are insufficient to plausibly allege that NASA had no choice in how or when to address asbestos mitigation.

The second prong is whether decisions in asbestos mitigation are “of the kind that the discretionary function exception was designed to shield.” The “evaluation of actual or suspected hazards,” such as asbestos, “and the decision to proceed in a particular manner in light of those hazards” are susceptible to policy considerations. Ford v. AmericanMotors Co., 770 F.2d 465, 467 (5th Cir. 1985).

The court held plaintiff did not meet her burden of establishing that the two-prong discretionary function exception test was met. The court further found that the discretionary function exception to the FTCA’s limited waiver of sovereign immunity bars plaintiff’s suit against the government.

As sovereign immunity bars suit against the government, the court lacked subject matter jurisdiction and dismissed the case without prejudice.

Read the full decision here.