Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 1 of 27
`
`
`
`REDACTED
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
`
`
`)
`
`
`
`
`
`
`)
`
`
`KEVIN D. ANTHONY,
`)
`
`
`
`
`
`
`)
`Plaintiff,
`
`
`
`
`)
`
`
`
`
`
`
`)
`
`
`
`
`v.
`
`)
`
`
`
`
`
`
`)
`UNITED STATES OF AMERICA
`
`)
`
`
`
`
`
`
`)
`Defendant.
`____________________________________)
`
`
`
`CASE NO. 3:19-cv-05337-BJR
`
`ORDER GRANTING IN PART AND
`
`DENYING IN PART UNITED
`MOTION FOR SUMMARY JUDGMENT
`AND MOTION TO DISMISS FOR LACK
`OF SUBJECT MATTER JURISDICTION
`AND GRANTING PLAINTIFF LEAVE TO
`FILE A MOTION TO AMEND
`COMPLAINT
`
`I.
`
`INTRODUCTION
`
`On November 5, 2015, U.S. Army Ranger Specialist Jesse M. Suhanec absented himself
`
`from Joint Base Lewis-
`
`JBLM
`
`Plaintiff
`
`Kevin D. Anthony, a civilian, multiple times while Mr. Anthony sat in his truck. While Mr.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`Anthony survived the attack, he was grievously injured and has been left with permanent disability.
`
`He now sues the United States and seeks to recover damages alleging that the event occurred as a
`
`result of the negligence of Army personnel.
`
`Before the Court are two motions brought by Defendant United States. First, the United
`
`States seeks dismissal of
`
`on the grounds of lack of subject matter jurisdiction.
`
`Second, the United States seeks summary judgment.
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`
`
`1
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 2 of 27
`
`1 Additionally, should
`
`seeks
`
`R
`
`, Dkt. No. 45 at 37. Having reviewed the Motions, the opposition thereto,
`
`the record of the case, and the relevant legal authorities, the Court will grant
`
`Motion and grant Plaintiff leave to file a Motion to Amend Complaint. The reasoning for the
`
`II.
`
`BACKGROUND
`
`The facts of this case are, for the most part, uncontested. Suhanec was first inducted into
`
`the United States Army in 2011. Mot. at 2 3. It is uncontested that, at that time, the Army recruiter
`
`who inducted him identified signs that should have disqualified him from recruitment,
`
`2 but failed to disqualify him. Resp. at 7 8 (citing Decl. of
`
`James J. Raffa, Ex. 1, Dkt. No. 49 at 111:12 22
`
`3 Nevertheless,
`
`Suhanec went on to serve honorably in the armed forces, joining an elite Ranger unit and deploying
`
`Medal for service with NATO and the International Security Assistance Force, a Combat
`
`
`
`1 Pursuant to motion and Court order, the parties have filed large sections of their briefing under seal. See Dkt. Nos.
`
`(Order Granting Mot.
`
`ny reference to those will be redacted in this Order. An unredacted version of this Order will be filed under seal.
`
`2
`
`-1.
`
`2 a
`
`3
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 3 of 27
`
`Infantryman Badge, and a Good Conduct Medal. Mot. at 4 5.
`
`Suhanec returned to the United State from his second deployment to Afghanistan in May
`
`2015. Id. at 5. He was assigned the post of Unit Armorer at JBLM, which entails managing the
`
`arms room where weapons and ammunition are stored, including the firearm he used in his attack
`
`on Mr. Anthony. Id. at 6. In order to be assigned this position, the United States claims Suhanec
`
`had to go through a selection process by his superiors, training, a background check, and security
`
`screening, all of which did not indicate that Suhanec was a security risk. Id. At the same time,
`
`however, Suhanec began receiving mental health and behavioral care from the military after
`
`reporting
`
`. Mot. at 8 10.
`
`According to the agreed account of what occurred, on the morning of the attack, November
`
`5, 2015, Suhanec
`
`, after which he
`
`obtained a 9mm handgun and ammunition from the Unit Armory and a large van using his army
`
`privileges. Compl., Dkt. No. 1 ¶ 2.2 2.3; Mot. at 10; Resp. at 1, 5. He then drove into Lakewood,
`
`Washington, where he encountered Mr. Anthony. Compl. ¶¶ 2.1, 2.4. According to Plaintiff,
`
`Suhanec demanded his truck and, when he did not comply, Suhanec shot nine rounds into the truck
`
`using the 9mm handgun, wounding Mr. Anthony five times in the head, chest, and arms. Id. ¶ 2.5.
`
`On October 24, 2016, Suhanec pled guilty to two counts of attempted first-degree robbery,
`
`two counts of second-degree assault, attempted residential burglary, and attempted vehicle theft in
`
`the Superior Court of Washington, Pierce County. Mot. at 11; see also Connaroe Decl., Dkt. No.
`
`29-2 (Statement of Defendant on Plea of Guilty to Non-Sex Offense). Based on his plea, Suhanec
`
`was sentenced to six years confinement. Mot. at 11.
`
`3
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 4 of 27
`
`
`
`On April 24, 2019, Plaintiff filed the present suit pursuant to the Federal Tort Claims Act
`
`et seq., claiming that the
`
`his
`
`injuries. Compl., Dkt. No. 1. Specifically, Plaintiff alleges six instances of negligence on the part
`
`of Army personnel in the run-up to the shooting, which he claims negligently contributed to the
`
`ing the means to carry
`
`out his attack. See Resp. at 4 6. These include the following:
`
`The recruitment of Suhanec in 2011 by the Army recruiter despite the
`identification of signs that should have disqualified Suhanec from recruitment and
`the
`disqualification. See also id. at 7 8.
`
`
`as Unit Armorer by his Chain of Command despite not
`meeting the training requirements for the position. See also id. at 8 10. According
`to Plaintiff, Suhanec did not receive the proper training until nearly three months
`after assuming the post, the anxiety from which contributed to his mental health
`issues.
`
`The failure of two mental and behavioral health specialists, social worker Gordon
`an
`allegedly identified disqualifying
`signs of mental and behavioral health issues prior to the attack. See also id. at 11
`17.
`
`The failure of now-Staff Sargent, then-Specialist, Kyle E. Cassidy to report
`concerning behavior by Suhanec prior to the day of the shooting, including
`extended absences from the Armory without justification and signs of increased
`stress and agitation. See also id. at 17 19. At the time of the incident, Cassidy
`served as Assistant Unit Armorer subordinate to Suhanec.
`
`
`failure to prevent Suhanec from removing the firearm and ammunition
`from the Armory the day of the attack. See also id. at 19 21.
`
`The provision by Specialist Brian Palmer of keys to the van used by Suhanec during
`uate reason to use an Army vehicle.
`
`See also id. at 22 24.
`
`As indicated supra, Defendants moved to dismiss Plaintiff s claims under both Federal
`
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 5 of 27
`
`
`
`Rules of Civil Procedure ( FRCP ) 12(b)(1) for lack of subject-matter jurisdiction and FRCP 56
`
`pursuant to summary judgment. Mot., Dkt. No. 27.
`
`III. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
`
`A. Legal Standard
`
`The United States moves to dismiss most of
`
`s claims arguing that the Court lacks
`
`subject matter jurisdiction. Mot. at 18 24. Under FRCP 12(b)(1), a complaint must be dismissed
`
`where the court lacks subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). According to the United
`
`States, many of the actions Plaintiff challenges fall within the discretionary function exception to
`
`the FTCA, depriving the Court of subject matter jurisdiction. As the Court is obligated to ensure
`
`it has jurisdiction before it can proceed to the merits of the case, the Court addresses the Motion
`
`to Dismiss first.
`
`B. Discretionary Function Exception to the Federal Tort Claims Act
`
`The United States is immune from suit unless it unequivocally consents. Maine Cmty.
`
`Health Options v. United States, 140 S. Ct. 1308, 1327 (2020) (citing United States v. Navajo
`
`Nation, 556 U.S. 287, 289 (2009)). Sovereign immunity is
`
`there is no subject matter jurisdiction unless sovereign immunity has been waived. DaVinci
`
`Aircraft, Inc. v. United States, 926 F.3d 1117, 1127 (9th Cir. 2019) (quoting FDIC v. Meyer, 510
`
`U.S. 471, 475 (1994)).
`
`Under the FTCA, the government has waived its sovereign immunity
`
`civil actions on
`
`claims against the United States, for money damages . . . for . . . personal injury . . . caused by the
`
`negligent or wrongful act or omission of any employee of the Government. . ..
`
`1346(b)(1). The FTCA, however, contains several exceptions which, when met, restore sovereign
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`5
`
`
`
`
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 6 of 27
`
`
`
`immunity. The operative exception in this case is the discretionary function exception, which
`
`provides that the FTCA
`
`
`
`. . . 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 . . ..
`
` 28 U.S.C. § 2680(a); see also
`
`Kim v. United States, 940 F.3d 484, 487 (9th Cir. 2019).
`
`prevent judicial second-guessing of legislative and administrative decisions grounded in social,
`
`economic, and political policy.
`
`Kim, 940 F.3d at 487 (quoting Berkovitz v. United States, 486
`
`U.S. 531, 536 37 (1988)
`
`Id.
`
`Judicial determination of the applicability of the discretionary function exception occurs in
`
`two steps. First, the Court determines whether the challenged actions involve an element of
`
`judgment or choice. Kim, 940 F.3d at 487 (quoting Terbush v. United States, 516 F.3d 1125,
`
`1129 (9th Cir. 2008)). This requirement is not met where
`
`If there is such a statute or policy directing mandatory and specific action, the inquiry comes to
`
` Berkovitz, 486 U.S. at 536.
`
`b
`
` Terbush, 516 F.3d at 1129 (quoting Berkovitz, 486 U.S. at 536).
`
`If, however
`
`proceeds to the second step; determining whether that judgment or choice is of the kind that the
`
`discretionary function exception was designed to shield Kim, 940 F.3d at 487 (quoting Terbush,
`
`516 F.3d at 1129). The Supreme Court has explained that the exception was designed only to
`
`shield governmental action based on considerations of public policy. Berkovitz, 486 U.S. at 539.
`
`
`
`
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 7 of 27
`
`
`
`This consideration does not rest on the subjective intent of the governmental agent but, rather,
`
`United States v. Gaubert, 499 U.S.
`
`315, 325 (1991). That is, t
`
`must be susceptible to some consideration of social,
`
`economic, or political policy.
`
`Kim, 940 F.3d at 487 (9th Cir. 2019) (quoting Chadd v. United
`
`States, 794 F.3d 1104, 1109 (9th Cir. 2015)). The focus of the inquiry is whether the actions
`
`themselves are susceptible to a policy analysis, not whether the government
`
`actually took
`
`such public policy judgements into consideration when making the decision Morales v. United
`
`States, 895 F.3d 708, 713 (9th Cir. 2018) (quoting Miller v. United States, 163 F.3d 591, 593 (9th
`
`Cir. 1998)).
`
`In re
`
`Glacier Bay, 71 F.3d 1447, 1451 (9th Cir. 1995); see, e.g., Jahr v. United States, 259 F. Supp. 3d
`
`1158, 1163 68 (W.D. Wash. 2017)
`
`not whether the
`
`Government as a whole had discretion at any point, but whether its allegedly negligent agents did
`
`in each instance
`
`ach separate action . . . to determine whether the
`
`specific actor had discretion of a type Congress intended to shield.
`
`In re Glacier Bay, 71 F.3d at
`
`1451.
`
`C. Individual Acts of Alleged Negligence
`
`The Court examines five out of six of the allegedly negligent acts of Army personnel. See
`
`supra at [X]. As to the sixth, the United States concedes
`
`to follow a non-discretionary Army regulation requiring Suhanec to complete training prior to
`
`taking the post of
`
`an
`
`
`
`
`
`7
`
` Thus,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 8 of 27
`
`the Court has subject matter jurisdiction over
`
`claim.
`
`1.
`
`Plaintiff claims that the unnamed recruiter who inducted Suhanec in 2011 failed to follow
`
`non-discretionary Army regulations setting recruitment standards after he identified signs that
`
`should have disqualified Suhanec from recruitment. Resp. at 7 8. Based on the violation of
`
`mandatory Army regulations, Plaintiff argues that the Court need not proceed past the first step of
`
`discretionary function analysis because there was no element of discretion afforded to the recruiter.
`
`The United States argues that the operative versions of the regulations in place at the time
`
`on which Plaintiff relies
`
`Instruction 6130.03 and Chapter 2 of the
`
`-501, do not provide a
`
`discretion to determine whether
`
`Suhanec was fit for induction into military service. Reply at 14 15, 16; see also Suppl. Decl. of
`
`Maj. Richard Connaroe, Ex. N, Dkt. No. 62-1 (DoD Instruction 6130.03: Medical Standards for
`
`Appointment, Enlistment, or Induction in the Military Services) DoD Instruction 6130.03 ;
`
`Suppl. Decl. of Maj. Richard Connaroe, Ex. O, Dkt. No. 62-2 (AR 40-501: Standards of Medical
`
`Fitness)
`
`-
`
`.
`
`The Court finds that the discretionary function exception does not apply. The Army
`
`indications of
`
`. T
`
`in operation
`
`at the time removed any discretion as to whether this was a disqualification. Upon examination,
`
`the then-current versions of both DoD Instruction 6130.03 and Chapter 2 of AR 40-501 provide
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`8
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 9 of 27
`
`
`
`Once a recruiter identifies a sign that the Army had determined by regulation should be
`
`disqualifying, the judgment of whether to follow that regulation is not a consideration susceptible
`
`to discretionary decision making. See Sigman v. United States, 217 F.3d 785, 793 (9th Cir. 2000)
`
`further mental and
`
`psychiatric review required by fitness standards, including AR 40-501, was not shielded by
`
`discretionary function exception).
`
`As such, the Court finds it has subject matter jurisdiction over this claim.
`
`2. Failure of Mental Health Professionals to Order E
`for Duty
`
`Fitness
`
`P
`
`treatment, Retterath and Wittkopp, were negligent when they observed signs that, according to
`
`Plaintiff, required them to refer Suhanec for an assessment of continued fitness to serve pursuant
`9
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 10 of 27
`
`
`
`17. The United States counters that the operative
`
`version of the relevant regulation, AR 40-501, contains no specific mandates requiring the mental
`
`health professionals to refer Suhanec based on the signs they observed during their treatment.
`
`Reply at 15 18. Therefore, the United States argues, the decision as to whether Suhanec was still
`
`fit to serve falls within the discretionary function exception.
`
`a. Element of Judgment or Choice
`
`The standard for retention in the armed services is outlined in Chapter 3 of AR 40-501.
`
`AR 40-501
`
`[3] gives the various medical conditions and physical defects which
`
`may render a Soldier unfit for further milita
`
`. Additionally, as Suhanec was an
`
`Army Ranger, a separate standard, provided in Chapter 5 of AR 40-501, applied to his retention
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`as a Ranger. See id.
`
`[C]hapter [5] sets forth medical conditions and physical defects that
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`are caus
`
`; id.
`
`Medical fitness standards
`
`for retention for . . . Ranger duty . Plaintiff claims that, had the mental health professionals
`
`concluded as they should have, that Suhanec was unfit to serve in either the Rangers or the military
`
`more broadly, he would not have obtained the means to conduct his attack on Plaintiff.
`
`Beginning with the more narrow standards applicable to retention as a Ranger, Chapter 5
`
`and well-
`
`Id. Thus, unlike the enlistment standards
`
`which designated a particular disqualifying condition that Suhanec demonstrated, these regulations
`
`are couched in non-mandatory terms leaving the judgment as to the continued fitness of a soldier
`
`
`
`
`
`10
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 11 of 27
`
`to serve in the Rangers to the evaluator.
`
`The standards for retention in military service in Chapter 3 demonstrate the same discretion
`
`to determine whether a soldier is fit to continue to serve. For example, Chapter 3 states that
`
`an MEB4
`
`fall below retention standards only if the condition has precluded or prevented successful
`
`Id. at 31. This section demonstrates two levels of discretion. First, whether
`
`a soldier has a disqualifying condition and, second, whether that condition prevents the soldier
`
`from performing their duties. This conclusion is supported by the rest of the provision, which
`
`[i]n those cases when it is clear the condition is long standing and has not prevented
`
`the Soldier from reaching retirement, then the Soldier meets the standard and MEB is not
`
`required.
`
`Id.
`
`For the types of disqualifying conditions which Plaintiff claims Suhanec displayed,5
`
`ence of
`
`symptoms
`
`limitations of
`
`Id. at 42 43. Thus, again, the standards do not prescribe a specific
`
`
`
`4
`
`-501 at 144. An
`-term medical condition enables him/her to continue to meet medical retention
`standards, in accordance with military service
`MILITARY HEALTH SYSTEM, Medical Evaluation Board,
`https://www.health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-
`Evaluation/Medical-Evaluation (last visited [X]).
`
`5 Namely,
`
`
`
`11
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 12 of 27
`
`
`
`condition which would have disqualified Suhanec from continued service. Instead, the regulations
`
`give discretion to treating personnel, such as Retterath and Wittkopp, to determine whether the
`
`symptoms they
`
`
`
`b. Of the Kind the Discretionary Function was Meant to Shield
`
`Based on the forgoing, the first discretionary function exception prong is met; the decision
`
`whether to refer Suhanec for further evaluation involved an element of choice or judgment. The
`
`next step is to determine whether it was the type of discretionary action the exception was designed
`
`to shield. Here, Plaintiff can be understood to argue that the mental health professionals were
`
`negligent when they observed signs that could potentially disqualify Suhanec for continued
`
`service, but failed to refer him to an MEB to determine whether he was still fit to serve.
`
`As shown above, the decision whether or not to refer for further evaluation was left by
`
`Army regulation to the discretion of the mental health professionals. As the Supreme Court has
`
`established governmental policy, as expressed or implied by statute,
`
`regulation, or agency guidelines, allows a Government agent to exercise discretion,
`
`-
`
`501 Chapters 3 and 5 do here, it must be presumed that the agent s acts are grounded in policy
`
`Gaubert, 499 U.S. at 324. The decision of whether a soldier is
`
`still fit to serve is precisely the type of discretionary decision involving questions of Army policy
`
`and allocation of resources the exception was designed to shield. As such, the Court finds that it
`
`does not have subject matter jurisdiction over this claim.
`
`3. Failure of Mental Health Professionals to Properly Diagnose or Treat Suhanec
`
`against the mental health professionals can also be understood as arguing
`
`that they failed to properly diagnosis and treat Suhanec, which reads as a claim for medical
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`12
`
`
`
`
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 13 of 27
`
`
`
`negligence. See Compl., ¶¶ 3.5, 3.8; Resp. at 27 28. The argument is that the mental health
`
`professionals should have diagnosed Suhanec with an immediately disqualifying condition, treated
`
`him differently, or better monitored him once they chose a course of treatment.
`
`For claims of medical negligence,
`
`rdinary
`
`occupational or professional judgments are not protected by the discretionary-function exception.
`
`Alfrey v. United States, 276 F.3d 557, 566 (9th Cir. 2002) (citing Sigman, 217 F.3d at 796); see
`
`also Fang v. United States, 140 F.3d 1238, 1242 (9th Cir. 1998)
`
`not immune
`
`from claims which challenge the actual administration of medical care by its employees when the
`
`claims do not concern actions which are the product of judgment driven by the consideration of
`
`competing policy-
`
`original); Trap v. United States, No. 13-cv-00003,
`
`2017 WL 8793328, at *34 *35 (C.D. Cal. Oct. 31, 2017); Lyons v. United States, No. 03-cv-244,
`
`2007 WL 4553970, at *10 *14 (N.D. Ohio Dec. 19, 2007). Thus in Sigman, the Ninth Circuit
`
`held that the discretionary function exception did not shield the government from liability against
`
`a negligence suit brought after a recently discharged soldier killed the mental health professionals
`
`who provided the diagnosis for which he was discharged from military service. See Sigman, 217
`
`F.3d at 795 96. In examining a claim for the failure to diagnose, treat, and control the mentally
`
`not. Id. at 795. Thu
`
`s claim sounding in medical negligence must survive discretionary
`
`-
`
`function exception analysis under the reasoning of Sigman.
`
`4.
`
`
`
`stant Unit Armorer,
`
`13
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 14 of 27
`
`
`
`was negligent when he failed to report that, in the weeks prior to the shooting incident, Suhanec
`
`was persistently absent from his post. Resp. at 17 19. According to Plaintiff, Suhanec would
`
`frequently absent himself from Unit Armory duty without permission or proper justification and
`
`Army regulations required Cassidy to report these absences. The United States seeks dismissal of
`
`this claim, arguing that Plaintiff fails to identify a non-discretionary regulatory mandate requiring
`
`Cass
`
`Reply at 18 19.
`
` based on the relative lack of severity of those absences.
`
`a. Element of Judgment or Choice
`
`Plaintiff relies on a web of intersecting Army regulations and the Uniform Code of Military
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`As Plaintiff argues
`
`offense. See Uniform Code of Military Justice, § 892, art. 92, 10 U.S.C.A. § 892. Also, according
`
`to Plaintiff,
`
`physical security of arms, ammunition, and
`
`, AR 190-11, required
`
`personnel involved in AA&E will be fully cognizant of their responsibilities to observe and report
`
`promptly to the commander any incident or condition which might result in temporary or
`
`Arms, Ammunition,
`
`and
`
`Explosives
`
`at
`
`10
`
`(Nov.
`
`2006),
`
`available
`
`at
`
`-11, Physical Security of
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`
`
`14
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 15 of 27
`
`
`
`https://www.customvault.com/docs/specs/AR%20190-11.pdf
`
`-
`
`.6, 7
`
`The United States argues that, based on the facts presented,
`
`rise to criminal dereliction of duty. Instead, Suhanec testified that in the two weeks prior to the
`
`attack, he would show up at the Unit Armory for five to ten minutes, then excuse himself, telling
`
`Cassidy that he was heading back to his barracks. See Dep. of Jesse Suhanec at 76:16 24, 136:18
`
`138:1. Cassidy testified that, in absenting himself from his post, Suhanec told Cassidy that he was
`
`leaving to study for a promotional exam or to work on an application for a program meant to help
`
`soldiers transition into civilian life. Decl. of Staff Sergeant Kyle E. Cassidy, Dkt. No. 61 ¶¶ 2, 4
`
`(Cassidy Decl.).
`
`Reviewing these arguments, it is clear that there is an underlying question as to whether
`
` rose to the level of dereliction of duty. The question itself exemplifies the
`
`discretion left to Cassidy to determine whether the behaviors he observed constituted dereliction
`
`of duty. Plaintiff has presented no regulations requiring Cassidy to independently investigate his
`
`ns for not being at his post. Nor, does Plaintiff identify a singular action observed
`
`
`
`
` 6
`
` Plaintiff provides a copy of AR 190-11 at Decl. of James J. Raffa, Ex. 6, Dkt. No. 49 at 135 143. This version,
`however, does not contain the cited portion. As such, the Court relies on a version containing the same provision
`found online.
`
`7 Plaintiff also relies on two other Army regulations, AR 190-30 (Military Police Investigations) and AR 195-2
`
`18.
`As the United States points out, however, Plaintiff has not provided the relevant portions of these regulations. Reply
`at 18. Instead, Plaintiff relies on Field Manuel 27-1 (Legal Guide for Commanders) as requiring reporting because it
`-30 and 195-2 require you to report criminal activity, known of suspected, to the military police
`
`States responds that this manual is only applicable to commanders, which Cassidy was not. Reply at 18. Regardless
`of applicability based on rank, however, and based on the evidence presented by the parties, AR 190-30 and AR
`195-2 appear to provide no more than a duplicative requirement as AR 190-11, i.e. that Cassidy would have been
`
`same grounds as this argument under AR 190-11.
`
`15
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 16 of 27
`
`
`
`by Cassidy, which triggered a mandatory reporting requirement. Instead, the regulation Plaintiff
`
`relies on, AR 190-11, requires reporting only in the case of any incident or condition which might
`
`result in temporary or permanent disqualification of such personnel.
`
`-11 at 10 (emphasis
`
`-11 leaves discretion
`
`to the reporting soldier to determine what actions they believe severe enough to require temporary
`
`or permanent disqualification. As such, the regulations leave the decision to report based on
`
`observed behavior to the judgment of the reporting soldier.
`
`b. Of the Kind the Discretionary Function was Meant to Shield
`
`The element of judgment or choice embodied in AR 190-11 is of the kind the discretionary
`
`function exception was meant to shield. Determining when behavior, such as absenting oneself
`
`reaches a level requiring reporting involves numerous elements of judgment,
`
`including respect and deference owed to a superior and mindfulness of where the
`
`
`
`are best spent. The Court finds that it does not retain subject matter jurisdiction over this claim.
`
`5.
`
`ailure to Prevent Suhanec from Removing the 9mm and Ammunition
`from the Unit Armory
`
`Plaintiff claims that Cassidy was negligent the day of the shooting when he failed to prevent
`
`Suhanec from accessing the Unit Armory. Resp. at 19 21. According to Plaintiff, and based on
`
`depositional testimony from Suhanec, on that day Suhanec interacted briefly with Cassidy in the
`
`Unit Armory before taking the firearm and ammunition from a locker, placing them in a duffle
`
`bag, and leaving to procure a vehicle to drive off of the base. Resp. at 20 21; see also Dep. of
`
`Jesse Suhanec at 131:8 134:2. According to Suhanec, Cassidy did not try to stop him from
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`leaving, which, Plaintiff argues, contravened mandatory Army regulations regarding the secure
`
`25
`
`storage of weaponry.
`
`16
`
`
`
`
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 17 of 27
`
`
`
`According to the United States, and based on a signed declaration from Cassidy, the
`
`morning of the incident Cassidy opened the Armory and interacted briefly with Suhanec when he
`
`arrived. Cassidy Decl. ¶ 7. Suhanec told Cassidy that he needed to double check storage
`
`paperwork before proceeding to the back of the Armory where he procured the 9mm handgun and
`
`ammunition.
`
`unusual for Suhanec to check his paperwork. Id. ¶ 8. Based on this interaction, Cassidy did not
`
`see Suhanec take the handgun and ammunition and only realized they were missing after Suhanec
`
`had left the base some hours later. Id. ¶ 10. The United States argues that throughout this
`
`interaction, Plaintiff can point to no mandatory regulation which Cassidy contravened. Instead,
`
`Suhanec had full access to the Unit Armory, thus gaining access to the weapon and ammunition
`
`he used in his attack on Plaintiff
`
`breaching any regulations.
`
`a. Element of Judgment or Choice
`
`The United States is correct. Plaintiff again cites to AR 190-11, which requires
`
`to further requirements of AR 190-
`
` AR 190-11 at 3. Additionally, Plaintiff points
`
`reening . . . and the monitoring to minimize opportunities for
`
` Id. at 11. Plaintiff also makes reference to AR
`
`190-
`
`safekeeping keys to storage areas. Id. at 16 17.
`
`On even a cursory reading of AR 190-11, it is clear that the regulation is not applicable to
`
`the fact situation before the Court. Further, none of these cited provisions include a specific
`
`mandate that Cassidy is alleged to have violated. Suhanec, by privilege of his position, and as
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`
`
`17
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 18 of 27
`
`
`
` had access to the Unit Armory. After complying with the safety protocols of
`
`AR 190-11, the regulations give the armory staff discretion to determine who should be allowed
`
`to enter and for what purposes. Thus, the first prong of the discretionary function exception is
`
`met.
`
`b. Of the Kind the Discretionary Function was Meant to Shield
`
`Turning to the second prong, the choice of who to allow access to the armory and the
`
`privileges afforded therein, is the sort of discretionary action addressed by the discretionary
`
`function exception. Balancing the needs of the armed forces, and its personnel, in accessing
`
`weapons with the safety of those weapons, is the sort of balancing envisioned by the exception.
`
`The Court, therefore, finds that the United States has met its burden in showing the applicability
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`of the discretionary function exception and that the exception divests this Court of jurisdiction
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`over this claim.
`
`6. Palmer Provision of Keys to an Army Vehicle to Suhanec
`
`According to Plaintiff, and again based on depositional testimony from Suhanec which is
`
`uncontested by the United States, the following took place: After leaving the Unit Armory with a
`
`weapon and ammunition in a duffle bag, Suhanec approached Palmer, who maintained the keys
`
`for the base vehicles. Suhanec allegedly asked Palmer for the keys to the van he intended to drive
`
`and, when asked by Palmer why he needed the keys, Suhanec responded that he needed them for
`
`Resp. at 22 (quoting Dep. of Jesse Suhanec at 80:19). According to Plaintiff,
`
`this answer was insufficiently detailed and violated mandatory Army regulations dictating the
`
`circumstances under which a soldier may use an Army vehicle.
`
`The United States
`
`18
`
`
`
`
`
`

`

`Case 3:19-cv-05337-BJR Document 63 Filed 11/02/20 Page 19 of 27
`
`
`
`explanation was sufficient, involved an element of discretion. Reply at 19 20. The United States
`
`claims that the regulation Plaintiff relies on does not provide a mandatory course of action, and,
`
`therefore, does not curtail the discretion afforded Palmer.
`
`a. Element of Judgment or Choice
`
`Plaintiff relies on AR 58-1, entitled Management, Acquisition, and Use of Motor Vehicles.
`
`See Suppl. Decl. of Maj. Richard Connaroe,