In a published opinion earlier this month, the Sixth Circuit affirmed a Tennessee district court’s dismissal of the Grand Ole Opry’s negligence action against the United States government for flood damages to the Opry in 2010. In dismissing the $326 million suit, the court held that the “discretionary function” exception to the Federal Tort Claims Act (FTCA) provided the government with immunity for any damages arising from the flood and explained the circuit’s law regarding exactly what “government discretion” means in the context of the FTCA.
The company that runs the Opry, as well as several hotel and insurance groups, sued the U.S. government over the Army Corps of Engineers’ actions with respect to the Old Hickory dam, which the plaintiffs alleged resulted in significant damage to the Opry and surrounding buildings during a severe storm in May 2010. The plaintiffs sued under the FTCA, alleging that Army Corps’ negligent operation of the dam during the storm and its failure to follow flood protocols resulted in massive amounts of water being released into the Cumberland River and flooding parts of Nashville. Although the district court relied on both the Flood Control Act’s grant of immunity and the discretionary function exception to the FTCA, the Sixth Circuit relied only on the FTCA exception in affirming the dismissal of the suit.
The Sixth Circuit first laid out the law on the discretionary exception function, as defined by the Supreme Court in 1991 in United States v. Gaubert. Under Gaubert, the government retains immunity from suit in tort if the tort is a result of conduct that is: (1) “discretionary” and “not controlled by mandatory statutes or regulations,” and (2) “the kind [of discretion] that the discretionary function exception was designed to shield . . . i.e., susceptible to policy analysis.” Weighing each of the plaintiffs’ arguments in turn, the appellate panel held that: (1) the Corps’ was permitted but not required to engage in a “pre-flood drawdown” of water in the reservoir behind the dam; (2) the Corps was not required to discharge more water from the reservoir in anticipation of the storm; (3) although protocols told the Corp how and when to implement storm precautions, the protocols did not mandate whether the Corps was obligated to undertake the precautions; and (4) the Corps was not legally required to warn downstream inhabitants prior to discharging the damaging flood waters from the dam. The court also noted that the plaintiffs could not maintain their suit on the grounds that regulations required the Army Corps District Water Manager to stay at his post for two straight days during the storm.
In so holding, the Court emphasized the broad discretion that government has in acting on and implementing regulations. The Court also explained that unless statutes or regulations impose a clear obligation on the acting government agency, the agency retains a reasonably broad immunity from suit over actions within its discretion, and that discretion itself provides a “strong presumption” that Gaubert’s policy-implementation prong is met.
