Filed: Apr. 08, 2009
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 4-8-2009 Williams v. United States Precedential or Non-Precedential: Non-Precedential Docket No. 07-3932 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Williams v. United States" (2009). 2009 Decisions. Paper 1568. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1568 This decision is brought to you for free and open access by the Opin
Summary: Opinions of the United 2009 Decisions States Court of Appeals for the Third Circuit 4-8-2009 Williams v. United States Precedential or Non-Precedential: Non-Precedential Docket No. 07-3932 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Williams v. United States" (2009). 2009 Decisions. Paper 1568. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1568 This decision is brought to you for free and open access by the Opini..
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Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-8-2009
Williams v. United States
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3932
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Williams v. United States" (2009). 2009 Decisions. Paper 1568.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1568
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3932
SHIRLEY WILLIAMS,
Appellant
v.
UNITED STATES;
THE BOROUGH OF NATIONAL PARK
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 06-cv-00834)
District Judge: Honorable Joseph H. Rodriguez
Submitted Under Third Circuit LAR 34.1(a)
on February 5, 2009
Before: RENDELL and ROTH, Circuit Judges,
and PADOVA, District Judge.
(Filed: April 8, 2009)
OPINION OF THE COURT
RENDELL, Circuit Judge.
* Honorable John R. Padova, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
Appellant Shirley Williams owns and resides in a home in National Park, New
Jersey that is adjacent to a site designed, owned, and maintained by the U.S. Army Corps
of Engineers (“Corps of Engineers”) for depositing materials occasionally dredged from
the Delaware River. Williams filed suit against the United States and the local
government alleging that the defendants were liable, on negligence and other theories, for
flood damage to her home that began in 2003. The District Court dismissed Appellant’s
claims against the United States for lack of subject matter jurisdiction, and then dismissed
her remaining claims against the local government after declining to exercise
supplemental jurisdiction. For the reasons discussed below, we will AFFIRM.
I. Background
One of the responsibilities of the Corps of Engineers is to develop and maintain the
navigable waterways of the United States, and this includes the regular dredging of the
Delaware River. In furtherance of this responsibility, the Corps of Engineers operates
and maintains the National Park Contained Disposal Facility (“NPCDF”) located in
National Park, New Jersey. The NPCDF is undeveloped property with various channels
and devices used to manage the drainage of water from dredging deposits left in the
facility. The Corps of Engineers has operated the NPCDF since 1961, acquired title in
1971, and made improvements to the facility in the 1970s and 1980s. Dredged material is
comprised mostly of water, and the Corps of Engineers uses disposal facilities, such as
NPCDF to allow the material to dry over a period of years. The NPCDF has not been
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used for the disposal of dredged materials since 2001.
Appellant built her home near the northeast corner of the NPCDF in 1976. From
1976 until 2003, she had no problems with regard to water infiltration. However,
Appellant claims that, since 2003, she has experienced ongoing flooding in her basement
and related moisture problems. The Corps of Engineers investigated the matter at her
request, and performed certain work on the drainage ditch behind her house in 2003.
When the flooding problem persisted, Appellant filed suit in 2006 against both the United
States1 and Borough of National Park.
Williams offered reports made by Horace Albert Reeves, Jr., a civil engineer and
architect, (“Reeves Reports”) as expert opinions on her behalf regarding the causes for the
flooding. The United States moved to strike these reports, and for summary judgment on
several grounds. The District Court granted the motion to strike the Reeves Reports
pursuant to Fed. R. Civ. P. 702. After striking the reports, the Court concluded that
Appellant failed to produce evidence to demonstrate that the Corps of Engineers’ conduct
was not immune from suit, and dismissed the claims against the United States for lack of
subject matter jurisdiction. The Court then dismissed the remaining claims against the
Borough of National Park after declining to exercise supplemental jurisdiction. In her
brief, Appellant concentrates her arguments almost entirely on challenging the District
1
Williams originally filed suit against the Corps of Engineers, but the District Court
recharacterized the claim as one against the United States pursuant to a motion to amend
under Fed. R. Civ. P. 15(a).
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Court’s order striking the Reeves Reports.
II. Discussion
We have jurisdiction under 28 U.S.C. § 1291 over an appeal from an order
dismissing a claim for lack of subject matter jurisdiction, and exercise plenary review.
See Taliaferro v. Darby Twp. Zoning Bd, 458 F.3d 181, 188 (3d Cir. 2006). We review a
District Court’s order excluding expert testimony for abuse of discretion. Flemming ex
rel. Estate of Flemming v. Air Sunshine, Inc.,
311 F.3d 282, 297 n.10 (3d Cir. 2002). We
also review a District Court’s exercise of supplemental jurisdiction for abuse of
discretion. De Asencio v. Tyson Foods, Inc.,
342 F.3d 301, 311 (3d Cir. 2003).
In exercising its “gatekeeper” role under Daubert v. Merrel Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), the District Court granted a motion by Appellees to strike the
Reeves Reports pursuant to Fed. R. Civ. P. 702. As a result of this decision, the Court did
not consider the reports in deciding the key issue of whether the Corps of Engineers’
alleged tortious conduct resulted from discretionary functions that were immune from
suit. Prior to admitting an expert opinion, a district court must be satisfied that the
proffered expert is qualified, and that his or her opinion is reliable. Oddi v. Ford Motor
Co.,
234 F.3d 136, 145 (3d Cir. 2000). In assessing reliability, we have directed district
courts to ask
“(1) whether a method consists of a testable hypothesis; (2) whether the
method has been subjected to peer review; (3) the known or potential rate of
error; (4) the existence and maintenance of standards controlling the
technique’s operation; (5) whether the method is generally accepted; (6) the
relationship of the technique to methods which have been established to be
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reliable; (7) the qualifications of the expert witness testifying based on the
methodology; and (8) the non-judicial uses to which the method has been
put.”
Id. at 145 (quoting In re Paoli R.R. Yard PCB Litigation,
35 F.3d 717 (3d Cir.1994)).
The District Court struck the Reeves Reports upon concluding that Appellant
failed to establish both Reeves’ qualifications and his methodology. We need look no
further than Reeves’ asserted methodology to conclude that the District Court acted
within its discretion. Even assuming arguendo that Reeves was qualified to render an
expert opinion regarding the design and maintenance of the NPCDF, his reports are
replete with conclusory statements with no scientific method tying an alleged cause to an
alleged effect. ( E.g. App. 233 (“The Army constructed the discharge piping at the tide
gates too high to drain the site.”; “The Army deviated from generally accepted standards
in their failure to provide drainage to carry seepage water from the Disposal Site to a safe
discharge point,” with no reference to the allegedly applicable standards.)). Nowhere in
the Reeves Reports can we discern a testable hypothesis to support his opinions, nor can
we discern any standards governing Reeves’ analysis. On this basis, we conclude that the
District Court was well within its discretion to grant Appellees’ motion to strike the
Reeves Reports.
With the applicable record so limited by the exclusion of the Reeves Reports, we
next consider the gravamen of this case; whether the United States is immune from tort
liability. Section 2680 of Title 28 exempts the United States from claims “based upon the
exercise or performance or the failure to exercise or perform a discretionary function or
5
duty on the part of a federal agency.” 28 U.S.C. § 2680(a). The District Court dismissed
Appellant’s claims after concluding that the government was immune from liability for
the conduct alleged. Appellant’s brief contains but one page challenging the District
Court’s conclusion on this crucial issue.
The purpose of discretionary immunity 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.” United States v. Gaubert, 499 U.S. 315, 323
(1991). Appellant raised three general theories of negligence in its claim against the
United States; negligent design of the NPCDF, negligent violation of regulations in
design, and negligent maintenance of the NPCDF. In determining whether the Corps of
Engineers’ actions in building, operating, and maintaining the NPCDF were protected as
discretionary functions, the District Court correctly noted that, where a government
policy established “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.
The District Court correctly concluded that Congress conferred discretion on the
Corps of Engineers to maintain navigable waterways, and specifically the discretion to
plan for and conduct dredging operations. E.g. 33 U.S.C. § 622 (“The Secretary of the
Army, acting through the Chief of Engineers . . . , in carrying out projects for
improvement of rivers and harbors . . . shall, by contract or otherwise, carry out such
work in the manner most economical and advantageous to the United States.”). We agree
6
with the District Court that, in light of this statutory grant of discretion, Appellants fail to
raise any credible argument sufficient to defeat the presumption that the design of the
NPCDF was not grounded in policy. Furthermore, Appellant alleges that the Corps of
Engineers violated its own regulations in designing the NPCDF, but Appellant failed to
produce any evidence as to specific procedures or engineering principles that were
violated. We likewise agree with the District Court that Appellant failed to produce any
evidence that would defeat the presumption that the Corps of Engineers’ exercise of its
statutory and regulatory responsibilities in maintaining the NPCDF was not also grounded
in policy. For these reasons, we conclude that the District Court correctly determined that
the United States was immune from Appellant’s claims regarding the design and
maintenance of the NPCDF.
Appellant also sought to characterize her claims in alternate terms that would
arguably not be subject to discretionary immunity. We reject these claims for the same
reasons relied on by the District Court. We note in particular that the flooding, even if
caused by the Corps of Engineers, could not be deemed a taking. The result was not
permanent, but was at best a consequential and incidental result of government activity.
See Miller v. United States, 583 F.2d 857, 863-64 (6th Cir. 1978). We also note that the
District Court had no jurisdiction over Appellant’s claim under the Clean Water Act, as
codified in 33 U.S.C. § 1365, because she failed to file the requisite notice. See Public
Interest Research Group of N.J. v. Windall,
51 F.3d 1179, 1189 n.15 (3d Cir. 1995).
After dismissing all claims against the United States, the District Court also
7
dismissed Appellant’s claims against the Borough of National Park. The Court concluded
that “the interests of judicial economy, convenience, or fairness to the litigants d[id] not
warrant review” of the remaining claims in the federal forum. (App. 25) Section 1367
expressly provides that a district court “may decline to exercise supplemental jurisdiction
over a” state claim if it “has dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c). Since we conclude that the District Court properly dismissed
Appellant’s claims against the United States, we cannot say that the Court abused its
discretion in also dismissing her remaining claims against the Borough of National Park.
III. CONCLUSION
For the reasons set forth above, we will AFFIRM the Order of the District Court.
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