D. New Jersey Notes Split Re Who Bears the Burden of Proof in FTCA Actions

Per Williams v. U.S. Army Corps of Engineers, Slip Copy, 2007 WL 2261559 (D.N.J . Aug 02, 2007) (NO. CIV.A.06-CV-834):

The policy behind 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.' " Gaubert, 499 U.S. at 325 (citing Berkovitz, 486 U.S. at 537). Defendant Army Corps points to 33 U.S.C. §§ 1, 419a, and 622 as express indicia of Congress' intent to give the Army Corps discretion in the design and placement of dredge facilities. (Army Corps Brief-December 19, 2006 at 10-13.) The Supreme Court has held that "when established government 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." Gaubert, 499 U.S. at 324. Furthermore, "for a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be grounded in policy of the regulatory regime." Id. at 324-25. FN14 This holding compels the Court to examine the statutes at issue to determine (1) whether the Army Corps was given judgment or choice under the applicable statutes in designing the NPCDF and (2) if so, whether the judgment exercised was of the kind discretionary immunity is designed to shield. See Mitchell, 225 F.3d at 363.

FN14. This holding seems to suggest that the burden of proof is on the plaintiff in FTCA actions. However, there is some division among the circuits as to what the proper burden allocation scheme may be. See Smith v. United States, 943 F.Supp. 159, 168 (D.R.I.1996) (articulating the circuit split); see also Ugo Colella & Adam Bain, The Burden of Proving Jurisdiction Under the Federal Torts Claim Act: A Uniform Approach to Allocation, 67 Fordham L.Rev. 2859 (1999). Given the Court's determination that this matter will proceed as a Rule 12(b)(1) motion, the burden of persuasion is on Plaintiff. See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991). This means furthermore that "no presumptive truthfulness attaches to plaintiff's allegations," and the Court will determine for itself if the plaintiff has satisfied a jurisdictional claim. Mortensen v. First Fed'l Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977). The Court is free to weigh the evidence to determine if it has subject matter jurisdiction. Id.