                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 NATALIE T. HSIEH, et al.,

    Plaintiffs,
                                                           Civil Action No. 06–1218 (CKK)
      v.

 CONSOLIDATED ENGINEERING
 SERVICES, INC., et al.,

    Defendants.


                                  MEMORANDUM OPINION
                                     (March 26, 2010)

       Plaintiff Matthew M. Hsieh brings this suit on behalf of himself and his minor daughter,

Natalie T. Hsieh, against Defendants the United States of America and the General Services

Administration (“GSA”) (collectively the “Federal Defendants”) and Consolidated Engineering

Services, Inc. (“CESI”) (together with the Federal Defendants, “Defendants”), a contractor that

contracted with GSA to perform maintenance and repairs on the Heating Operation and

Transmission District (“HOTD”) Steam Distribution Complex (“SDC”) located in Washington,

D.C. and owned by the United States. Plaintiffs allege that they sustained severe burns when

they were struck by a vapor emitted from a sidewalk grate as Mr. Hsieh pushed his daughter over

the grate in a stroller and that their injuries were caused by Defendants’ joint and several

negligence.

       Defendant CESI has brought a cross-claim against the Federal Defendants seeking

indemnification and/or contribution in the event that any damages are imposed upon CESI based

on Plaintiffs’ claims. CESI has also asserted a counterclaim against Mr. Hsieh, alleging
contributory negligence and seeking contribution from Mr. Hsieh in the event that damages are

imposed upon CESI. The Federal Defendants have likewise asserted a cross-claim against CESI,

seeking contractual and/or common law indemnity and/or contribution from CESI in the event

that any damages are imposed upon the Federal Defendants.

       Presently pending before the Court is the Federal Defendants’ [87] Supplemental Motion

for Summary Judgment, which focuses on the applicability of the discretionary function

exception to the Federal Tort Claims Act (“FTCA”) 28 U.S.C. § 2671, et seq. The Federal

Defendants argue that Plaintiffs’ and CESI’s remaining claims against the United States and

GSA are barred by the discretionary function exception to the FTCA. CESI and Plaintiffs both

oppose the Federal Defendants’ motion. In addition, Plaintiffs have filed a [91] Motion to Strike

Exhibits 7, 8 and 9 attached to the Federal Defendants’ Supplemental Motion for Summary

Judgment, which is opposed by the Federal Defendants. Plaintiffs contend that the exhibits

should be stricken from the record because they contain new, previously undisclosed information

that is beyond the scope of discovery in this case.

       The Court has thoroughly reviewed the pending motions, the parties’ responsive briefing

as well as the attachments thereto, the relevant statutes and case law, and the entire record herein.

For the reasons set forth below, Plaintiffs’ [91] Motion to Strike Exhibits 7, 8 and 9 is DENIED.

The Court, however, shall provide Plaintiffs and CESI an opportunity to conduct discovery with

respect to the newly submitted exhibits to the extent the material contained therein is relevant to

the Court’s determination of whether the discretionary function exception applies.

       In addition, with respect to the Federal Defendants’ [87] Supplemental Motion for

Summary Judgment, the Court finds that the Federal Defendants’ decisions regarding the


                                                  2
frequency of inspections and whether to warn the public of a hazardous condition at Manhole 42

are not exempt under the FTCA’s discretionary function exception, and the Court therefore has

jurisdiction to entertain Plaintiffs’ claims and CESI’s cross-claim to the extent both are based on

such allegations. Accordingly, the Federal Defendants’ [87] Supplemental Motion for Summary

Judgment is DENIED with prejudice to the extent they argue that decisions regarding the

frequency of inspections and whether to warn of a specific hazard present at Manhole 42 are

subject to the discretionary function exception. The Court is inclined on the present record,

however, to find that the Federal Defendants’ decisions regarding the design of the SDC —

including both decisions relating to physical alterations and the addition of new equipment — are

exempt under the FTCA’s discretionary function exception as well as decisions regarding the use

of non-destructive examinations. Nevertheless, because this determination rests, at least in part,

on the newly-submitted material objected to by Plaintiffs, the Court shall withhold making a final

determination until Plaintiffs and CESI have had an opportunity to take discovery on the new

material. Accordingly, the Federal Defendants’ [87] Supplemental Motion for Summary

Judgment is DENIED WITHOUT PREJUDICE to the extent they argue that the discretionary

function exception applies to decisions relating to the SDC design and whether to use non-

destructive examinations. The Federal Defendants may file a renewed motion on only this issue

once the parties have had an opportunity to conduct discovery on the newly-submitted

declarations.

                                      I. BACKGROUND

       The Court assumes familiarity with, and shall not repeat herein, the entire factual and

procedural background of this case, which has been extensively discussed by this Court in its


                                                 3
prior decision issued on August 7, 2008, see Hsieh v. Consolidated Eng’g Servs., Inc., 569 F.

Supp. 2d 159 (D.D.C. 2008). The Court shall instead briefly summarize only those key facts

necessary to provide the proper context for resolution of the parties’ present motions. As the

parties themselves have largely relied on the Court’s previous factual findings in setting forth the

general background facts relevant to this case, the Court shall do the same and shall cite to its

August 7, 2008 Memorandum Opinion where appropriate.

       In addition, the Court notes once again that it strictly adheres to the text of Local Civil

Rule 7(h)(1). As such, in resolving the pending summary judgment motion, this Court “assumes

that facts identified by the moving party in its statement of material facts are admitted, unless

such a fact is controverted in the statement of genuine issues filed in opposition to the motion.”

LCvR 7(h)(1). In the instant case, the Federal Defendants have submitted a statement of material

facts in support of their Supplemental Motion for Summary Judgment, and both Plaintiffs and

CESI have responded with an opposing statement of material facts. Given the nature of the

present inquiry, the parties’ statements focus almost exclusively on the various conclusions

reached by the parties’ respective experts as to the likely causes of Plaintiffs’ alleged injuries.

Accordingly, while the parties continue to dispute the underlying merits of the various expert

opinions regarding the potential cause(s) of the system failure that led to Plaintiffs’ injuries, the

Federal Defendants have — for the purposes of their present motion — refrained from

challenging the validity of the conclusions reached by the Plaintiffs’ and CESI’s experts. As

required, the Federal Defendants instead focus on the alleged causes and remedies identified by

Plaintiffs’ and CESI’s experts and address whether the alleged theories of recovery in this case

are barred by the discretionary function exception to the FTCA. As such, while the Court has


                                                   4
relied on the parties’ statements to identify the relevant portions of the experts’ deposition

testimony and reports, for clarity’s sake, the Court shall cite directly to the record rather than to

the parties’ statements when setting forth the relevant expert opinions.

       A.      Factual Background

       The instant lawsuit arises from alleged injuries sustained by Mr. Hsieh and his then three-

and-a-half year old daughter, Natalie, on September 11, 2004, when Plaintiffs were walking near

10th Street and Pennsylvania Avenue, NW, in downtown Washington, D.C. Plaintiff noticed a

vapor emanating from a grate in the sidewalk near where he was standing, which grate was

located over a manhole — specifically, Manhole 42 — but “didn’t think much of it.” He

subsequently walked over the grate while pushing his daughter in her stroller. Plaintiffs allege

that they both suffered severe burns when they were struck by vapors1 emitted from the grate

over Manhole 42. Hseih, 569 F. Supp. 2d at 165-66.

       Manhole 42 is part of the Steam Distribution Complex, referred to herein as the SDC,

which consists of approximately seven miles of tunnels and five miles of direct-buried pipelines

that supply 250-psi saturated (406 degrees F) steam to approximately 100 government buildings

and monuments in downtown Washington, D.C. Id. at 167. At the time of the incident in

question, CESI had assumed contractual responsibility for maintenance and repair services for

the SDC. Id. at 167-68. Specifically, the SDC Contract delegated to CESI the responsibility for



       1
         One of Plaintiffs’ two expert witnesses, William H. Bishop, has concluded that hot
water — not steam or vapor — splashed out of Manhole 42, directly causing Plaintiffs’ injuries.
See Fed. Defs.’ MSJ, Ex. 5 (Deposition of William H. Bishop at 29:16-30:23). This dispute,
however, is not material to the instant Memorandum Opinion, and the Court, for convenience
and consistent with the parties’ briefing, therefore refers to the substance that was allegedly
emitted from the grate over Manhole 42 on September 11, 2004 as “vapor.”

                                                   5
inspecting the SDC and performing preventative maintenance and repairs under $1,000, but

provided that GSA retained responsibility for capital improvements and repairs over $1,000. Id.

at 163, 168-69.

       As this Court previously explained in its August 7, 2008 Memorandum Opinion, the

parties appear to agree that Plaintiffs’ injuries were likely caused by water getting into the vault

in Manhole 42, reaching the level of the steam pipes, boiling, and creating vapor that escaped

through the grate above Manhole 42. Id. at 170. A significant factual dispute exists, however, as

to what initially caused the water to get into the vault in Manhole 42. See id. In particular, a

genuine issue exists as to whether that water came from (a) a leaking or malfunctioning valve, (b)

a larger systemic problem of water leaking from an external source into the SDC, or (c) both. Id.

at 163. As the Court observed,

       this factual question is fundamental because identifying and repairing a leaking valve
       weld was arguably within the scope of responsibility delegated to CESI under the
       SDC, which included inspection, preventative maintenance, and minor repairs for all
       portions of the SDC. In contrast, identifying the source of recurrent water leaks into
       the SDC and preventing future leaks would undoubtably have been within the scope
       GSA’s retained responsibility for and discretion over capital improvements and
       major repairs.

Id. at 175-76.

       Despite further briefing by the parties, it is clear that a material dispute remains as to this

key causal inquiry. Plaintiffs have retained two expert witnesses, William H. Bishop and Larry

D. Smith, to opine on the possible causes of Plaintiffs’ injuries and the actions that, if taken, may

have prevented the emission of hot vapor from Manhole 42. CESI has also retained an expert




                                                  6
witness, Joseph R. Reynolds.2 Although the exact cause of the system failure may ultimately

prove impossible to confirm given the lack of physical evidence in this case,3 the parties’ experts

have each provided their conclusions on the likely causes of Plaintiffs’ injuries. The Court shall

briefly summarize each expert’s testimony in turn below.

               1.      Mr. Bishop

       Mr. Bishop opines that Plaintiffs were injured when a steam line in Manhole 42 failed —

either from corrosion or from malfunction of a pressure valve — thereby causing hot water to

issue forth and splash out of the grate. See Fed. Defs.’ MSJ, Ex. 5 (Feb. 2, 2007 Bishop Report

at p. 1).4 He concludes that in order to prevent leaks, such as that at issue, that appear to have

occurred as the result of corrosion and which are unpredictable in nature, the SDC system


       2
         In addition, the Court notes that the Federal Defendants have retained an expert, Edwin
P. Zucker, to opine as to the possible causes of the vapor emission at issue. See Fed. Defs.’ MSJ,
Ex. 1 (Zucker Rep.). As this Memorandum Opinion focuses solely on whether Plaintiffs’ and
CESI’s remaining claims against the Federal Defendants are barred by the discretionary function
exception, Mr. Zucker’s opinions are not at issue.
       3
          As the Court has previously explained, when the repair on Manhole 42 was conducted
after the September 11, 2004 incident, the decision was made to replace both the valve and the
piping to ensure that the problem was corrected; the original pipe/valve assembly that was
removed was subsequently discarded or lost. Hsieh, 569 F. Supp. 2d at 170. Consequently, both
Plaintiffs’ and CESI’s experts agree that the lack of physical evidence in this case makes it
impossible to confirm the exact cause of the system failure. See, e.g., Fed. Defs.’ MSJ at Ex. 5
(Bishop Dep. at 83:6-7 (“I haven’t come to any conclusions as to what caused the damn thing.”)
& at 87:1 (testifying that “[t]here are hundreds of different scenarios” that may have led to
Plaintiffs’ injuries)); id., Ex. 6 (Mar. 29, 2007 Smith Rep. at p. 4, ¶ 8 (stating that he “was unable
to determine the root cause of the failure of the weld since the valve with the failed weld was not
retained”); id., Ex. 4 (Reynolds Rep. at p. 36, ¶ 3 (“Due to the unavailability of physical evidence
to examine and test, the possible cause of the alleged weld and/or pipe failure may never be
known . . . .”).
       4
         Unlike Mr. Smith and Mr. Reynolds, Mr. Bishop does not believe that the vapor
emission was caused — either in whole or in part — by groundwater leaking into Manhole 42.
See Fed. Defs.’ MSJ, Ex. 5 (Bishop Dep. at 83:15-17, 100:7-22).

                                                  7
“should have been designed so that escaping steam or hot liquids would be vented or directed to

a safe location where persons such as the Hsiehs . . . would not be harmed.” Id. For example, he

suggests that the manhole should have been designed so that excess water was piped to an

outside source, such as a storm drain or, if an outside source was not readily available, into the

corner of a manhole. Fed. Defs.’ MSJ, Ex. 5 (Bishop Dep. at 35:17-36:2). At deposition, Mr.

Bishop further opined that the system should have been designed to prevent possible pipe

breaches by placing the smaller pipes underneath the larger pipes. Id. at 56:23-57:4. Finally, Mr.

Bishop suggests that: (a) the water that accumulated in the manhole from the failed steam line

should have been “drained,” either by a “passive” or “active” drain, see id. (Bishop Dep. at

29:21-23); and (b) pressure sensors should have been installed inside each connection or

building, although he acknowledges that he is not aware whether such sensors were or were not

installed at the time of the incident, id. at 30:3-15.

                2.      Mr. Smith

        Mr. Smith, Plaintiffs’ second expert, concludes that the emissions from Manhole 42 were

likely caused either: (a) when a steam line/drip line failed as a result of corrosion and/or a failed

weld, see Fed. Defs.’ MSJ, Ex. 6 (Feb. 2, 2007 Smith Rep. at p. 2, ¶ 2); id. (Mar. 29, 2007 Smith

Rep. at p. 4, ¶ 7); or (b) when water entered the manhole from an outside source and came into

contact with the steam pipes, causing steam to emit out of the manhole, see id. (Mar. 29, 2007

Smith Rep. at p. 4, ¶ 7); id. (Apr. 23, 2007 Smith Rep. at p. 11, ¶ 12). Mr. Smith opines that the

“steam system should have been designed and constructed so that the potential failure of a weld

or valve would not result in the release of steam through a grate.” Id. (Feb. 2, 2007 Smith Rep. at

p. 3, ¶ 4). Specifically, he suggests that steel plates could have been used to cover the manholes


                                                   8
or steam enclosures should have been employed around areas that were deemed most susceptible

to failure. See id. (Smith Dep. at 33:20-34:8). In addition, he suggests that the following

measures, if taken, may have prevented the steam line/drip line from failing and/or the

accumulation of outside water in the manhole: (a) requiring increased inspections on the affected

valves and piping, see id. (Mar. 29, 2007 Smith Rep. at p.4, ¶ 9); (b) requiring non-destructive

(NDE) examinations each time a pipe in the SDC became surrounded by water, see id. (Smith

Dep. at 23:4-12, 26:4-28:15); and (c) making certain “long-term repairs/design changes,” such as

the installation of water level alarms and/or sump pumps or water proofing the vaults, see id.

(Apr. 23, 2007 Smith Rep. at p. 10); see also id. (Smith Dep. at 60:10-14).

               3.      Mr. Reynolds

       CESI’s expert, Mr. Reynolds, initially opined that the steam emissions could have been

caused by either: (a) a weld and/or pipe failure, which could have resulted from water hammer,

corrosion, or fatigue, see Fed. Defs.’ MSJ, Ex. 4 (Reynolds Rep. at p. 36, ¶¶ 3, 4, 6 & 7); or (b)

water accumulating in the manhole and reaching the level of the steam pipes, causing the water

to boil and produce the emitted steam, see id. at p. 36, ¶ 5. Mr. Reynolds later clarified at

deposition, however, that he believes the vapor emissions in this case were primarily caused by

water from an external source entering into the vault and coming into contact with the steam

pipes. Id., Ex. 4 (Reynolds Dep. at 39:19-40:7, 66:1-5). According to Mr. Reynolds, “[w]ater

intrusion into tunnels and manholes [in the SDC] is endemic,” and “[m]ost, if not all, manholes

generally have water in them at any given time.” Id., Ex. 4 (Reynolds Rep. at p. 4). Mr.

Reynolds further concludes that in this instance the water accumulation was caused by an

“unpredictable and fortuitous event.” Id., Ex. 4 (Reynolds Dep. at 142:4-14). He suggests that


                                                  9
the water accumulation could have been prevented by sealing the vault and/or by installing a

water pump in the vault. Id. at 104:11-23. In addition, he suggests that cathodic protection may

have been used in certain circumstances to reduce corrosion. Id. at 109:15-11:23. Mr. Reynolds

acknowledges that the “[r]epairs and replacements that are needed in this system are extensive,

very expensive, and would markedly interrupt service.” Id., Ex. 4 (Reynolds Rep. at p. 4).

       B.      Procedural Background

       Mr. Hsieh initially filed a complaint on behalf of his daughter based on the allegations at

issue in this action in the Superior Court for the District of Columbia in May 2006. See Notice of

Removal, Docket No. [1], ¶ 1. CESI filed its answer to that complaint in June 2006, and also

filed a third-party complaint against the Federal Defendants. Id. ¶¶ 2-3. In July 2006, the

Federal Defendants removed that action from Superior Court to this Court. See generally id.

Following removal, Mr. Hsieh, by consent of the parties, filed an Amended Complaint in this

case on behalf of his daughter, in which he named both CESI and the Federal Defendants as

defendants. See Amended Compl., Docket No. [4]. All Defendants filed answers to Natalie

Hsieh’s Amended Complaint. Thereafter, in September 2006, Mr. Hsieh commenced a separate

action, based on the same factual allegations asserted in his daughter’s Amended Complaint and

naming the identical Defendants, asserting a claim for damages for his own alleged injuries. See

Hsieh v. Consolidated Engineering Services, Inc., Civil Action No. 06-1626. The parties

subsequently agreed to the dismissal of Mr. Hsieh’s later-filed action and the consolidation of his

claims into the above-captioned action. Plaintiffs then filed, again with the consent of the

parties, their Second Amended Complaint.

       In December 2006, CESI filed a cross-claim against the Federal Defendants for


                                                10
indemnification and contribution, and a counterclaim against Mr. Hsieh alleging contributory

negligence and seeking contribution. See Docket No. [21].5 The Federal Defendants likewise

filed a cross-claim against CESI for indemnification and contribution. See Docket No. [25]. Mr.

Hsieh subsequently filed a motion to dismiss CESI’s counterclaim as untimely, which the Court

denied by Order dated March 23, 2007. See Docket No. [41]. The parties then proceeded

directly to engage in fact and expert discovery.

       At the close of discovery, the parties filed a series of dispositive motions. As indicated

above, the Court issued a memorandum opinion on August 7, 2008, that, inter alia, granted in

part the Federal Defendants’ motion to dismiss or, in the alternative, motion for summary

judgment. See Hsieh v. CESI, 569 F. Supp.2d 159 (D.D.C. 2008). Specifically, as is relevant to

the instant Memorandum Opinion, the Court granted the Federal Defendants’ motion with

respect to both Plaintiffs’ claims and CESI’s cross-claim to the extent the claims were premised

on activities delegated to CESI under the SDC contract. Id. at 176-78. The Court held that such

allegations fall under the independent contractor exception to the FTCA, and that the Court

therefore lacked subject matter jurisdiction to entertain those claims. See id.

       In so doing, however, the Court observed that a key factual dispute exists as to the cause

of Plaintiffs’ alleged injuries. Id. at 175-76. Although the Federal Defendants had assumed that

Plaintiffs’ alleged injuries were caused by actions (or inactions) delegated to CESI under the

SDC Contract — such that application of the independent contractor exception would have acted

as a complete bar to suit against the Federal Defendants — the Court determined that a


       5
          In addition, CESI filed a third-party complaint against D&Z, see Docket No. [31];
however, that third-party claim has since been dismissed without prejudice by a stipulation of all
parties, see Docket No. [75].

                                                   11
possibility remained that Plaintiffs were injured as the result of decisions made by GSA

regarding responsibilities for which it retained authority under the SDC contract. Id. at 178-79.

This possibility in turn raised a question as to whether the Federal Defendants’ decisions under

the SDC contract are covered by the discretionary function exception to the FTCA. See id. at

179-80. Unfortunately, as the Federal Defendants had assumed that Plaintiffs’ alleged injuries

were caused by actions delegated to CESI, the issued was not addressed in the parties’ initial

motions for summary judgment. It is well settled, however, that “[t]he discretionary function

exception is a barrier to subject matter jurisdiction.” Loughlin v. United States, 393 F.3d 155,

162 (D.C. Cir. 2004). “A district court thus has no authority to address the merits of claims

allegedly arising under the FTCA in cases in which the plaintiff is unable to overcome this

jurisdictional barrier.” Id. As with all questions relating to the Court’s jurisdiction, the Court

was therefore obligated to raise sua sponte the issue of the discretionary function exception to the

FTCA and its application in the case at hand. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,

230-31 (1990) (“federal courts are under an independent obligation to examine their

jurisdiction,” regardless of whether any party has raised it); cf. Burkhart v. Wash. Metro. Area

Transit Auth., 112 F.3d 1207, 1216 (D.C. Cir. 1997) (“sovereign immunity claims are

jurisdictional and thus cannot be waived”). Accordingly, emphasizing that application of the

discretionary function exception implicates the Court’s jurisdiction to entertain Plaintiffs’ claims

and CESI’s cross-claim against the Federal Defendants and therefore could not be waived, the

Court required the parties to provide supplemental briefing on this issue. See Hsieh, 569 F.

Supp.2d at 179-80.

       Pursuant to that order, Federal Defendants initially filed a supplemental motion to dismiss


                                                 12
or in the alternative for summary judgment, and CESI filed a supplemental cross-motion for

partial summary judgment as well. See Docket Nos. [80] & [81]. Upon review of the parties’

supplemental filings, however, the Court found that the parties had failed to sufficiently develop

the factual record as was necessary to determine the applicability of the discretionary function

exception to the allegations at issue. Consequently, the Court remained unable to determine

whether and how the FTCA’s discretionary function exception applies in the instant case. The

Court therefore struck the parties’ briefing from the record and required the parties to file

renewed supplemental briefing that contained a case-specific discussion of how the relevant legal

principles apply to the particular facts of this case. See Apr. 29, 2009 Order, Docket No. [85].

       As required, the Federal Defendants have now filed their renewed [87] Supplemental

Motion for Summary Judgment, which focuses on the application of the discretionary function

exception to this case. The Federal Defendants contend that both Plaintiff’s and CESI’s claims

are barred by the discretionary function exception to the FTCA. CESI and Plaintiff both oppose

the Federal Defendants’ motion. In addition, Plaintiffs have filed a [91] Motion to Strike

Exhibits 7, 8 and 9 attached to the Federal Defendants’ Supplemental Motion for Summary

Judgment. Plaintiffs contend that the exhibits should be stricken from the record because they

contain new information beyond the scope of discovery in this case. Federal Defendants oppose

Plaintiffs’ motion. Briefing on the parties’ motions is now complete, and the issues are therefore

ripe for the Court’s review and resolution.

                                    II. LEGAL STANDARD

       Pursuant to Federal Rule of Civil Procedure 56, a party is entitled to summary judgment

“if the pleadings, the discovery and disclosure materials on file, and any affidavits show that


                                                 13
there is no genuine issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c); see also Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).

Under the summary judgment standard, the moving party bears the “initial responsibility of

informing the district court of the basis for [its] motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits which [it] believe[s] demonstrate the absence of a genuine issue of material fact.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In response, the non-moving party must “go

beyond the pleadings and by [its] own affidavits, or depositions, answers to interrogatories, and

admissions on file, ‘designate’ specific facts showing that there is a genuine issue for trial.” Id.

at 324 (internal citations omitted).

       Although a court should draw all inferences from the supporting records submitted by the

nonmoving party, the mere existence of a factual dispute, by itself, is insufficient to bar summary

judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To be material, the

factual assertion must be capable of affecting the substantive outcome of the litigation; to be

genuine, the issue must be supported by sufficient admissible evidence that a reasonable trier-of-

fact could find for the nonmoving party. Laningham v. U.S. Navy, 813 F.2d 1236, 1242-43 (D.C.

Cir. 1987); Liberty Lobby, 477 U.S. at 251 (the court must determine “whether the evidence

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law”). “If the evidence is merely colorable, or is not

sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50

(internal citations omitted). “Mere allegations or denials in the adverse party’s pleadings are

insufficient to defeat an otherwise proper motion for summary judgment.” Williams v.


                                                 14
Callaghan, 938 F. Supp. 46, 49 (D.D.C. 1996). The adverse party must do more than simply

“show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, while the movant bears the initial

responsibility of identifying those portions of the record that demonstrate the absence of a

genuine issue of material fact, the burden shifts to the non-movant to “come forward with

‘specific facts showing that there is a genuine issue for trial.’” Id. at 587 (citing Fed. R. Civ. P.

56(e)) (emphasis in original).

                                        III. DISCUSSION

       A.      Motion to Strike

       The Court turns first to consider Plaintiffs’ [91] Motion to Strike Exhibits 7, 8 and 9

attached to the Federal Defendants’ Supplemental Motion for Summary Judgment. Plaintiffs

argue that these exhibits should be stricken because they contain new information beyond the

scope of discovery. See Pl.’s Opp’n/Mot. to Strike at 1. Plaintiffs emphasize that the Federal

Defendants did not plead the discretionary function exception as an affirmative defense and that

discovery in this matter is now closed. Id. Plaintiffs therefore urge that the Federal Defendants

should be precluded from relying on the newly submitted materials in support of their

supplemental motion because Plaintiffs have not had an opportunity to conduct discovery as to

the application of the discretionary function exception to GSA’s conduct in this case.

       While the Court agrees that it would be unfair to make any final rulings in reliance on the

new material submitted by the Federal Defendants without first affording both Plaintiffs and

CESI an opportunity to obtain discovery on that information, the Court does not agree that

striking the Federal Defendants’ newly-added exhibits is appropriate. “[T]he application of the


                                                  15
discretionary function exception controls the Court’s jurisdiction over CESI’s cross-claim and

Plaintiffs’ claims against the Federal Defendants.” Hsieh, 569 F. Supp. 2d at 179-80. Because

the question now before the Court goes directly to its ability to entertain the claims against the

Federal Defendants, the Court simply cannot look past this threshold issue. It is therefore

inappropriate to strike material necessary to the determination of the Court’s jurisdiction over

Plaintiffs’ and CESI’s claims against the Federal Defendants. Accordingly, Plaintiffs’ [91]

Motion to Strike Exhibits 7, 8 and 9 is DENIED. To the extent, however, that the new exhibits

submitted by the Federal Defendants are material to the Court’s determination of whether the

discretionary function exception applies, the Court shall provide Plaintiffs and CESI an

opportunity to conduct discovery with respect to the newly submitted material, as is indicated

below.

         B.     Federal Defendants’ Supplemental Motion for Summary Judgment

         It is well established that “[t]he federal government is ‘immune from suit save as it

consents to be sued.’” Kalodner v. Abraham, 310 F.3d 767, 769 (D.C. Cir. 2002) (quoting

United States v. Sherwood, 312 U.S. 584, 586 (1941)). In enacting the FTCA, Congress granted

a limited waiver of the sovereign immunity of the United States in only certain circumstances,

allowing the United States to be sued for the negligent acts or omissions of its employees when

they act within the scope of their employment. 28 U.S.C. § 1346(b); see United States v.

Orleans, 425 U.S. 807, 813 (1976)); Cannon v. United States, 645 F.2d 1128, 1133 (D.C. Cir.

1981). The discretionary function exception to the FTCA bars tort claims “based upon the

exercise or performance or the failure to exercise or to perform a discretionary function or duty

on the part of a federal agency or an employee of the Government, whether or not the discretion


                                                 16
involved be abused.” 28 U.S.C. § 2680(a).

       In determining whether the discretionary function exception applies, courts consider the

two-part test established in United States v. Gaubert, 499 U.S. 315, 322-23 (1991). First, as the

exception only covers “acts that involve an element of judgment or choice,” id. at 322, the court

determines whether any “federal statute, regulation, or policy specifically prescribes a course of

action for an employee to follow,” id. “If one does, ‘the employee has no rightful option but to

adhere to the directive.’” Macharia v. Untied States, 334 F.3d 61, 65 (D.C. Cir. 2003) (quoting

Berkovitz v. United States, 486 U.S. 531, 536 (1988)). If no directive exists, however, the Court

turns to Gaubert’s second step, and considers “whether the judgment is of the kind that the

discretionary function exception was designed to shield.” Gaubert, 49 U.S. at 322-23.

Specifically, the Court considers whether the judgment is “grounded in social, economic, [or]

political policy,” because “when properly construed, the exception ‘protects only governmental

actions and decisions based on considerations of public policy.” Id. at 323 (quoting United

States v. Varig Airlines, 467 U.S. 797, 814 (1984) and Berkovitz, 486 U.S. at 537).

               1.      Prong One of the Gaubert Test

       As discussed above, the first prong of the Gaubert test evaluates whether any “federal

statute, regulation, or policy specifically prescribes a course of action for an employee to follow.”

Gaubert, 499 U.S. at 322. Plaintiffs concede that the first prong is met in this case. See Pl.’s

Opp’n, Docket No. [88], at 5 (“Plaintiffs do not dispute that there is no federal statute, policy or

regulation that specifically prescribes the Federal Defendants’ maintenance, repair and operation

of the SDC.”). CESI disagrees, arguing that a clear “directive existed that compelled GSA to

make repairs and capital improvements to the SDC.” CESI’s Opp’n, Docket No. [89], at 9.


                                                 17
Specifically, CESI asserts that GSA was obligated under (1) federal statute, (2) common law, and

(3) the provisions of the SDC contract to make all necessary repairs to the SDC. See id. at 8-10.

The relevant case law makes clear, however, that “in order to preclude the government from

availing itself of the discretionary function exception, a directive must ‘be mandatory and it must

clearly and specifically define what the employees are supposed to do.’” Loughlin v. United

States, 286 F. Supp. 2d 1, 8 (D.D.C. 2003) (quoting C.R.S. by D.B.S. v. United States, 11 F.3d

791, 799 (8th Cir. 1993)), aff’d in relevant part 393 F. Supp. 2d 1. In this case, the Court finds

that CESI has failed to show that any of the cited provisions specifically prescribe what repairs

and/or design modifications GSA was required to make to the SDC.

       First, the federal statutory provisions relied upon by CESI simply authorize GSA to make

repairs to government buildings and do not “mandate” that GSA undertake any “particular

conduct.”6 See Gaubert, 499 U.S. at 324. This sort of “general directive that leaves

implementation decisions in the hands of federal officials” does not qualify as a mandatory

directive under the first prong of the Gaubert test; rather, “only those ‘regulations that give no

options to a government agency take away the exercise of discretion.’” Loughlin, 286 F. Supp.

2d at 8 (quoting Gotha v. United States, 115 F.3d 176, 1818 (3d Cir. 1997)); cf. Cope v. Scott, 45


       6
          Specifically, CESI directs the Court’s attention to the following three statutory
provisions: (1) 40 U.S.C. § 101, which states generally that the purpose of GSA’s enabling
statutes is to “provide the Federal Government with an economical and efficient system” for,
among other things, “repairing” government property; (2) 40 U.S.C. § 592(c)(1), which addresses
the Federal Buildings Fund and provides that “[d]eposits in the Fund are available for real
property management and related activities in the amount specified in an appropriation law may
be transferred out of the Fund and deposited as miscellaneous receipts in the Treasury;” and (3)
40 U.S.C. § 3305(b)(1)(A), which authorizes the GSA to “alter” — i.e., repair, remodel, improve,
extend or otherwise change — public buildings. See CESI’s Opp’n at 9-10.


                                                 18
F.3d 445, 450 (D.C. Cir. 1995) (“These statutes do not contain directives so precise that they

constrain the Park Service's control over the surface of Beach Drive. Absent such directives, any

action taken (or not taken) regarding the matter is an exercise of discretion.”). Second, the SDC

Contract does not obligate GSA to take any particular actions with respect to the repair and

maintenance of the SDC. While the SDC Contract specifies that GSA retains responsibility for

and must authorize certain general categories of repairs (namely, capital improvements and

repairs over $1,000), the agreement does not impose a nondiscretionary obligation on GSA to

take any specific actions. See generally Hsieh, 569 F. Supp. 2d at 167-69. Third and finally,

even assuming, as CESI asserts, that the common law obligates the government to “exercise

reasonable care as the owner and the operator of the steam system” and to “supervise and inspect

its property,” CESI Opp’n at 11, the common law certainly does not “‘specifically define what

the [GSA] employees are supposed to so.’” Loughlin, 286 F. Supp. 2d at 8 (quoting C.R.S. by

D.B.S., 11 F.3d at 799).

       Accordingly, CESI has not demonstrated the existence of a mandatory directive

prescribing the specific course of action GSA was to take in this case. Indeed, CESI admits as

much, conceding that “none of these [] directives specifies the precise remedy that GSA must use

to prevent water intrusion in the GSA.” CESI’s Opp’n at 11. CESI nonetheless argues that these

directives qualify as a mandatory directive under the first prong of the Gaubert test because they

left GSA with no “choice but to repair the SDC in a manner that would prevent scalding steam

from escaping the manholes.” Id. This assertion, even if true, is insufficient as it is clear that

GSA employees retain discretion under the directives identified by CESI to determine what,

when and how such repairs should be conducted. As such, GSA’s conduct at issue “involves an

                                                 19
element of judgment or choice,” Berkovitz, 486 U.S. at 536, and the first prong of the Gaubert

test is satisfied.

                 2.    Prong Two of the Gaubert Test

        The Court turns next to consider the second prong of the Gaubert test, which considers

“whether the judgment is of the kind that the discretionary function exception was designed to

shield.” Gaubert, 49 U.S. at 322-23. As the D.C. Circuit has observed, “[d]etermining whether

a decision is ‘essentially political, social, or economic,’ is admittedly difficult, since nearly every

government action is, at least to some extent, subject to ‘policy analysis.’” Cope, 45 F.3d at 448

(quoting Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187, 1195 (D.C. Cir.

1986)); cf. Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) (“The distinction

between protected and unprotected actions and decisions has proven itself to be a particularly

vexing determination for district and appellate courts alike.”). “The mere association of a

decision with regulatory concerns is not enough; exempt decisions are those ‘fraught with . . .

public policy considerations.’” Id. (quoting Sami v. United States, 617 F.2d 755, 767 (D.C. Cir.

1979)). Accordingly, “[t]he question is not whether there is any discretion at all, but whether the

discretion is ‘grounded in the policy of the regulatory regime.’” Id. (quoting Gaubert, 499 U.S.

at 325) (emphasis added by D.C. Circuit).

        In evaluating this second prong, the “Supreme Court has emphasized . . . that the issue is

not the decision as such, but whether the ‘nature’ of the decision implicates policy analysis.” Id.

“What matters is not what the decisionmaker was thinking, but whether the type of decision

being challenged is grounded in social, economic, or political policy.” Id.; see also Gaubert, 499

U.S. at 325 (“The focus of the inquiry is not on the agent’s subjective intent in exercising the

                                                  20
discretion conferred by statute or regulations, but on the nature of the actions taken and on

whether they are susceptible to policy analysis.”). The D.C. Circuit has cautioned against the

“mechanistic application of these frameworks,” emphasizing that “the focus is on the nature of

the decision, not on the semantic pigeonhole into which the action can be put.” Cope, 45 F.3d at

449; see also Terbush, 516 F.3d at 1129 (“Courts have been reluctant to create formulaic

categories or to demarcate flashpoints on this spectrum to illuminate which governmental

decisions fall within the discretionary function exception.”). Accordingly, while Plaintiffs and

CESI have each argued at various points that maintenance decisions cannot per se qualify as the

type of decision that may be exempted under the discretionary function exception, the case law

confirms that this Court cannot make categorical determinations regarding the nature of

maintenance decisions in general.7 Rather, in order to determine whether the discretionary

function applies in this case, the Court must examine the nature of the judgments at issue. That

in turn requires the Court to examine the alleged causes of Plaintiffs’ injuries and the alleged

remedies that Plaintiffs and CESI claim should have been undertaken. See Mitchell v. United

States, 225 F.3d 361, 365 (3d Cir. 2000) (“From case law, it becomes apparent that in applying

the teachings of Gaubert, the inquiry becomes fact-specific.”); cf. Terbush, 516 F.3d at 1135

(concluding that the court could not determine on the present record whether the discretionary

function applied “[b]ecause the parties and the district court to some degree lumped the question

of maintenance together with the other claims regarding design and construction” and therefore


       7
         Indeed, the D.C. Circuit has previously found that governmental maintenance decisions
may, in certain circumstances, be exempt under the discretionary function exception. See,
e.g., Cope, 45 F.3d at (finding that discretionary function exception applied to allegations that the
government failed to “maintain adequate skid resistence” on a public roadway).

                                                 21
remanding to the district court for further proceedings”).8

       In this case, Plaintiffs have alleged that their injuries were caused by CESI’s and/or the

Federal Defendants’ negligent failure to inspect, maintain and repair the SDC, to provide

Plaintiffs with a warning of the dangerous or potentially dangerous condition present in Manhole

42, and/or to investigate the cause of and to remedy the water leakage into the SDC. See Second

Amended Complaint, (hereinafter “2d Am. Compl.”), Docket No. [19]. These allegations have

been further refined by the testimony of the parties’ expert witnesses and, as reflected by the

present record, the specific judgments now being challenged fall into three general categories: (a)

GSA’s decisions regarding the design of the SDC, including both alterations of the existing

physical structure (by, for example, modifying pipe locations) as well as adding new equipment

(such as sump pumps, water alarms, pressure sensors, etc.); (b) GSA’s decisions regarding the

type and frequency of inspections of the SDC; and (c) GSA’s decisions whether to warn the

public regarding the hazardous condition at Manhole 42.

                       a.      Decisions relating to the design of the SDC.

       As indicated above, both Plaintiffs’ and CESI’s experts conclude that the Federal

Defendants’ failure to make certain decisions relating to the design of the SDC contributed to




       8
          For this reason, Plaintiffs’ opposition briefing is largely unhelpful to the Court, as
Plaintiffs once again fail to address the specific decisions at issue in this case. See generally Pls.’
Opp’n. Plaintiffs have instead continued to advance a broad, categorical argument that
“decisions regarding the repair, maintenance and operation of the SDC” are not exempted by the
discretionary function exception. See id. As indicated above, this argument does little to assist
the Court in determining whether the maintenance judgments actually at issue in this case are
susceptible to policy analysis. The Court’s discussion on this point therefore focuses primarily
on those arguments advanced by CESI in its opposition briefing.

                                                  22
and/or caused Plaintiffs’ injuries.9 The parties have, in their current briefing, generally divided

the suggested actions regarding the SDC design into two categories — (1) suggested changes to

the design of the SDC and (2) suggested modifications to the SDC. They further indicate that

alterations to the current physical structure of the SDC (for example, rearranging the layout of the

steam pipes) belong to the former category, while additions of new equipment (for example,

water alarms or sump pumps) are appropriately viewed as part of the latter category. From its

own review of the present record, it appears to the Court that all such decisions may be fairly

characterized as “design judgments.” That is, the experts’ various proposals to modify the

SDC’s current structure — whether by adding new equipment or altering the material that is

already in place — are all, at heart, judgments about how the SDC should be designed and

constructed. The allegations on this point are not that the Federal Defendants negligently

installed a sump pump in Manhole 42, for example, that subsequently malfunctioned causing

injury to Plaintiffs, but that the Federal Defendants negligently failed to install the required sump

pump in the first instance. Moreover, as the Court understands the experts’ testimony, the

suggested alterations and modifications are applicable system-wide and are not necessarily

recommendations unique to Manhole 42. Accordingly, the Court views all such decisions as

relating to the design of the SDC.10

       9
         As the Court previously indicated in its August 7, 2008 Memorandum Opinion, capital
improvements and repairs over $1000 were in the exclusive control of GSA under the terms of
the SDC Contract. Hseih, 569 F. Supp. 2d at 169. Arguably, then, the specific actions identified
by the parties’ experts that fall within this general category of “decisions relating to the design of
the SDC” were GSA’s responsibility under the SDC Contract. The parties appear to proceed on
this assumption in the present briefing.
       10
          The sole possible exceptions to this statement are: (1) Mr. Bishop’s conclusion that the
water that accumulated in the manhole from the failed steam line should have been “drained,”

                                                  23
        On the basis of the present record and upon review of the relevant case law, the Court is

inclined to find that the Federal Defendants’ decisions relating to the design of the SDC are

exempt under the FTCA’s discretionary function exception. The D.C. Circuit’s decision in Cope

is particularly instructive. In that case, the Court of Appeals held that the FTCA’s discretionary

function exception applied to claims that the United States negligently failed to maintain

adequate skid resistance on a public roadway located in Rock Creek Park in Washington, D.C.

Cope, 45 F.3d at 450-51. The D.C. Circuit observed that “no regular maintenance would have

prevented the road from deteriorating in the way [plaintiff] alleges;” rather, the record reflected

that the road conditions of which plaintiff complained “could have been prevented only by

reducing the traffic load, initially paving it with a different surface, resurfacing the curve entirely,

or at least milling the curve to create grooves in the surface.” Id. at 451. The court therefore

concluded that “[d]etermining the appropriate course of action would require balancing factors

such as [the road’s] overall purpose, the allocation of funds among significant project demands,

the safety of drivers and other park visitors, and the inconvenience of repairs as compared to the

risk of safety hazards.” Id. As such, the government’s decisions regarding management of the

public roadway at issue were exempt from suit under the FTCA’s discretionary function

exception. Id..

        Similarly, in Baum v. United States, 986 F.2d 716, 721-22 (3d Cir. 1993), the Third



either by a “passive” or “active” drain, see Fed. Defs.’ MSJ, Ex. 5 (Bishop Dep. at 29:21-23);
and (2) Mr. Reynold’s conclusion that cathodic protection may have been used in certain
circumstances to reduce corrosion, see id., Ex 4 (Reynolds Dep. at 109:15-111:23). It is unclear
to the Court on the present record what exactly these proposed courses of action entail and
whether they are accurately characterized as proposing systemic design changes. The parties are
therefore directed to provide a more complete description of these proposals in future briefing.

                                                  24
Circuit affirmed the lower court’s finding that the FTCA’s discretionary function exception

barred the plaintiff’s claims against the National Park Service. The plaintiff in that case alleged

that the government was negligent in designing and constructing a bridge guardrail with cast iron

rather than cast steel. Id. at 721. In finding that the discretionary function exception applied to

such claims, the Third Circuit concluded that the choice of material was “fundamentally” a

“question of how to allocate limited resources among competing needs.” Id. at 722. As such, the

challenged decision by the National Park Service “was one bound up in economic and political

policy considerations.” Id.

       On the present record, the Court is inclined to find that the government’s decisions

regarding the design of the SDC — like the decisions at issue in Cope and Baum — are grounded

in policy and economic concerns. The Federal Defendants have provided the declaration of Greg

Westphal, Steam Distribution Manager with GSA, National Capital Region, in which he avers

that the decision to implement each of the specific actions recommended by Plaintiffs’ and

CESI’s experts requires the balancing of, inter alia, the safety of individuals throughout

downtown Washington, D.C., the allocation of funding among competing projects, and the

inconvenience of any disruption in service to the 100-plus buildings that receive steam from the

SDC as compared to the risk of the safety hazards. See generally Fed. Defs.’ MSJ, Ex. 7

(Declaration of Greg Westphal); see also id., Ex. 8 (Declaration of Diane Stolz) (discussing the

process for undertaking major repairs and capital improvements to the SDC). This evidence, if

unrebutted, sufficiently demonstrates that the types of decisions at issue here are distinct from

and significantly more complex than the type of routine, garden-variety maintenance decisions

that are generally found to fall outside the discretionary function exception. See, e.g., Gotha, 115

                                                 25
F.3d at 181 (finding that the discretionary function exception did not apply to claims that the U.S.

Navy was negligent in failing to provide either a stairway handrail or sufficient lighting because

such decisions involved “mundane, administrative, garden-variety housekeeping problem[s]”).

Indeed, CESI’s own expert, Mr. Reynolds, agrees that the “[r]epairs and replacements that are

needed in this system are extensive, very expensive, and would markedly interrupt service.” Fed.

Defs.’ MSJ, Ex. 4 (Reynolds Rep. at p. 4).

       CESI’s arguments to the contrary are largely without merit on the present record. Relying

on Maalouf v. Swiss Confederation, 208 F. Supp. 2d 31 (D.D.C. 2002), CESI argues that the

government is not entitled to discretionary function immunity for decisions, such as that at issue

here, that are made on behalf of the government as a land owner rather than as a government

entity per se. See CESI’s Opp’n at 14-16. CESI’s reliance on Maalouf, however, is misplaced.

In that case, the plaintiff alleged that he had been injured while sledding on the grounds of the

Swiss Embassy when he struck a guide wire that secured a leaning tree. 208 F. Supp. 2d at 34-

35. The district court held that the plaintiff’s claims were not barred under the analogous

discretionary function exception to the Foreign Sovereign Immunities Act because the Swiss

government, in deciding to install a guide wire on its premises, “was acting as a private

landowner.” Id. at 36. The court concluded that “the fact that the Embassy’s property is not

maintained for public use supports the results reached here [i.e., that the discretionary function

exception did not apply], because the decision regarding protection of the tree was clearly related

to defendant’s role as a landowner, and not a result of any policy-making duties of a

governmental body.” Id. The types of decisions at issue in this case, which relate to the design

and operation of the approximately seven miles of tunnels and five miles of direct-buried

                                                 26
pipelines that make up the SDC and that supply steam to approximately 100 government

buildings and monuments in downtown Washington, D.C., are simply not analogous to the

conduct of a private landowner acting in a private capacity. They certainly involve far more

complex judgments than are implicated by the decision to attach a guide wire to a tree on a

foreign government’s private embassy grounds, as was at issue in Maalouf.

       CESI also contends, relying in part on the D.C. Circuit’s decision in Cope, that the type of

decisions at issue regarding the design of the SDC implicate only “technical, engineering and

professional judgments about safety which are not entitled to discretionary function immunity.”

CESI’s Opp’n at 16. To the extent CESI implies that the Court should adopt a categorical rule

that decisions involving technical, engineering, professional, and/or safety judgments cannot be

subject to the discretionary function exemption, such an argument is wholly without merit. The

relevant case law makes clear that courts may not rely on “formulaic categories” in applying the

discretionary function exception. Terbush, 516 F.3d at 1129; see also Cope, 45 F.3d at 449 (“the

focus is on the nature of the decision, not on the semantic pigeonhole into which the action can

be put”). In addition, CESI’s reliance on Cope is misplaced. CESI contends that the D.C.

Circuit’s decision in that case may be read as holding “that decisions involving engineering

judgments do not involve public policy considerations.” CESI’s Opp’n at 16. But upon review

of that decision, it is readily apparent that Cope contains no such categorical holding. To the

contrary, while the D.C. Circuit observed that judgments involving engineering concerns “are not

necessarily protected by suit,” it recognized that where such judgments “are‘fraught with public

policy considerations’ . . . they fall within the [discretionary function] exception.” Cope, 45 F.3d

at 451 (emphasis added). Similarly, although decisions that implicate only questions of safety

                                                27
without any additional policy concerns may be outside the scope of the discretionary function

exception, the mere fact that a judgment involves balancing of public safety does not

automatically bar application of the exception. See, e.g., id. (decisions regarding management of

the public roadway immune from suit under discretionary function exception notwithstanding

that they involve judgments as to “the safety of drivers and park visitors”).11

       Accordingly, the Court reiterates that it is inclined on the basis of the present record to

find that the Federal Defendants’ decisions regarding the design of the SDC fall within the

discretionary function exception. Nonetheless, because this finding is based in part on statements

contained in the Westphal and Stolz Declarations — and which, as noted above, have not yet

been subject to discovery by either Plaintiffs or CESI — the Court concludes that Plaintiffs and

CESI should, in fairness, be permitted an opportunity to test the validity of Mr. Westphal’s and

Ms. Stolz’s statements before a final decision is rendered. Accordingly, the Court shall DENY

WITHOUT PREJUDICE the Federal Defendants’ [87] Supplemental Motion for Summary

Judgment to the extent they argue that the discretionary function exception applies to GSA’s

design-related decisions. Discovery in this case shall be reopened for the limited purpose of


       11
           CESI’s reliance on the unpublished decision in Stotmeister v. Cherry Hill Construction,
Inc., Civ. Act. No. 05-813, 2006 WL 1933871 (D.D.C. July 11, 2006), is equally misplaced. As
CESI itself recognizes, that decision contains no discussion of the FTCA’s discretionary function
exception. See generally Stotmeister, 2006 WL 1933871; see also CESI’s Opp’n at 5, n. 3
(“Discretionary function immunity was not discussed in Stotmeister.”). CESI’s claim in its
opposition briefing that the Stotmeister court “held that the discretionary function did not protect
the Federal Government from suit for alleged actions or omissions with respect to the SDC,”
CESI’s Opp’n at 5, is therefore both puzzling and wholly inaccurate. In addition, insofar as CESI
implies that the absence of any discussion of the discretionary function exception in that case
should be read as supporting a finding that the discretionary function exception does not apply to
claims of negligence based on decisions relating to the SDC, such an argument is clearly without
merit.

                                                 28
permitting Plaintiffs and CESI to depose Mr. Westphal and/or Ms. Stolz as to the statements

contained in their declarations, pursuant to the schedule set forth below. The Federal Defendants

may then file a renewed motion on this issue once the parties have had an opportunity to conduct

discovery on these issues.

                      b.      Decisions regarding investigations/inspections.

       As indicated above, Plaintiffs’ expert Mr. Smith also suggests that GSA’s failure to

require increased inspections on the affected valves and piping and/or NDE examinations

contributed to the SDC failure and Plaintiffs’ resulting injuries. See Fed. Defs.’ MSJ, Ex 6.

(Mar. 29, 2007 Smith Rep. at p.4, ¶ 9); id. (Smith Dep. at 23:4-12, 26:4-28:15).12 Turning first to

the allegation that GSA should have required more frequent inspections of the SDC, the Court

concludes that this type of decision is not exempt under the FTCA’s discretionary function

exception. Decisions regarding the frequency of inspections do not involve the same type of

policy considerations that are associated with the more complex, systemic design changes

discussed above. Nor have the Federal Defendants identified any social, economic or political

considerations inherent in decisions regarding the frequency of inspections. The Court therefore

finds that GSA’s decisions regarding when and how frequently to inspect the SDC implicate only

issues of routine maintenance and scheduling and are therefore not exempt under the FTCA’s




       12
          As the Court previously found, the “SDC Contract prescribed a specific schedule for
CESI to perform inspections and preventative maintenance.” Hsieh, 569 F. Supp. 2d at 167.
Accordingly, it appears that GSA retained responsibility for setting the frequency of inspections.
In addition, although not directly addressed by the parties, the decision whether to require NDE
examinations arguably would have been within GSA’s control as well. See Fed. Defs.’ Ex. 7
(Westphal Decl.), ¶ 19 (indicating NDE examination would require steam to be shut down for
periods of time).

                                                29
discretionary function exception. See, e.g., Gotha, 115 F.3d at 181 (finding discretionary

function exception did not bar claims regarding “mundane, administrative, garden-variety

housekeeping problem[s]”); cf. Cope, 45 F.3d at 451 (suggesting that decisions regarding

“routine maintenance” are not exempt under the FTCA’s discretionary function exception).

Accordingly, the Federal Defendants’ [87] Supplemental Motion for Summary Judgment is

DENIED to the extent it argues that decisions regarding the frequency of inspections are subject

to the discretionary function exception.

       By contrast, the Court is inclined to find, based on the present record, that the decision

whether or not to require NDE examinations is exempt under the FTCA’s discretionary function

exception. As described by Mr. Westphal in his declaration, NDE examinations may require that

the affected steam lines be shut down for several days, resulting in significant service disruptions,

and, to the extent the examinations are conducted on buried steam lines, necessitates excavating

sidewalks and roads to reach the buried lines, which would in turn disrupt traffic patterns in the

affected areas in downtown Washington, D.C. See Fed. Defs.’ MSJ, Ex. 7 (Westphal Decl. ¶

19). The decision whether to employ NDE examinations therefore appears to be more complex

than and distinct from questions of routine maintenance, instead requiring GSA officials to

balance public safety concerns, the impact of any potential service disruptions against the benefit

of the examinations, and the distribution of limited resources among competing projects.

Nonetheless, because the Federal Defendants’ discussion of this issue depends upon the

Westphal Declaration, the Court shall permit Plaintiffs and CESI an opportunity to test the

validity of Mr. Westphal’s statements before a final decision is rendered. Accordingly, the

Federal Defendants’ [87] Supplemental Motion for Summary Judgment is DENIED WITHOUT

                                                 30
PREJUDICE to the extent it asserts that the discretionary function exception applies to GSA’s

decision whether to utilize NDE examinations. The Federal Defendants may re-file a renewed

motion on this issue once the parties have had an opportunity to conduct discovery on these

issues.

                         c.      Decisions to warn the public regarding potential dangers associated
                                 with Manhole 42.

          Finally, Plaintiffs have alleged that the Federal Defendants negligently failed to warn

Plaintiffs and others in the vicinity of Manhole 42 of the dangerous or potentially dangerous

conditions then in existence. 2d Am. Compl. ¶ 15. In this instance, the Court finds that the

Federal Defendants’ alleged failure to warn of dangers specific to Manhole 42 is not subject to

the FTCA’s discretionary function exception. Indeed, the Federal Defendants themselves appear

to concede as much. While they argue that any alleged failure to provide system-wide warnings

of dangers associated with systemic water infiltration throughout the SDC would fall under the

discretionary function exception, they make no similar argument that an alleged failure to

provide warnings specific to the alleged hazardous condition at Manhole 42 is similarly barred;

instead, the Federal Defendants argue only that the latter allegation fails on its merits because

GSA had no actual notice of a problem specific to Manhole 42. See Fed. Defs.’ Reply to Pls.’

Opp’n at 11-13; see also Fed. Defs.’ Reply to CESI’s Opp’n at 19-21.

          A fair reading of Plaintiffs’ Second Amended Complaint, however, indicates that

Plaintiffs have alleged only that they were injured as result of the Federal Defendants “negligent

failure to provide Matthew M. Hsieh and other persons properly in the vicinity of the grate in

question with a warning of the dangerous or potentially dangerous condition thereby presented.”



                                                   31
2d Am. Compl. ¶ 15 (emphasis added). Accordingly, while the Court is inclined to agree with

the Federal Defendants that any decision whether and how to provide system-wide warnings

regarding recurrent water infiltration into the SDC throughout the greater Washington, D.C.

downtown area would likely be subject to the discretionary function exception, Plaintiffs have

made no such claim in this case. As to the claim that GSA negligently failed to provide a

warning specific to Manhole 42, the Federal Defendants have not identified any public policy

considerations that would have affected their decision (or lack thereof) to warn of a hazardous

condition at Manhole 42 nor does it appear to the Court that such a decision is one “fraught with

public policy considerations.” See Cope, 45 F.3d at (finding failure to warn not covered by

FTCA’s discretionary function exception where no policy considerations implicated); Maalouf,

208 F. Supp. 2d at 38 (finding that discretionary function exception did not apply where

defendant “can point to no important political, social, or economic consideration involved in its

decision not to warn plaintiff about the guide wire”). Setting aside the question of whether

Plaintiffs will ultimately be able to show that the Federal Defendants negligently failed to

provide warnings of a danger at Manhole 42 — a merits-based question that is not currently at

issue in the parties’ pending briefing and on which the Court therefore reserves judgment13 — it

is apparent that such a claim is not precluded by the FTCA’s discretionary function exception.

The Federal Defendants’ [87] Supplemental Motion for Summary Judgment is therefore

DENIED insofar as it asserts that the discretionary function exception applies to GSA’s decision




       13
          Similarly, the Court notes that the separate question of whether the Federal Defendants
validly delegated any potential duty to warn to CESI under the terms of the SDC contract is not
currently at issue in the parties’ motions.

                                                32
not to warn about a hazardous condition at Manhole 42.

                                      IV. CONCLUSION

       For the reasons set forth above, Plaintiffs’ [91] Motion to Strike Exhibits 7, 8 and 9 is

DENIED. In addition, with respect to the Federal Defendants’ [87] Supplemental Motion for

Summary Judgment, the Court finds that the Federal Defendants’ decisions regarding the

frequency of inspections and whether to warn the public of a hazardous condition at Manhole 42

are not exempt under the FTCA’s discretionary function exception and the Court therefore has

jurisdiction to entertain Plaintiffs’ claims and CESI’s cross-claim to the extent both are based on

such allegations. Accordingly, the Federal Defendants’ [87] Supplemental Motion for Summary

Judgment is DENIED with prejudice insofar as the government contends that decisions regarding

the frequency of inspections and whether to warn of a specific hazard in Manhole 42 are subject

to the discretionary function exception. The Court, however, is inclined on the present record to

find that the Federal Defendants’ decisions regarding the design of the SDC — including both

decisions relating to physical alterations and the addition of new equipment —as well as

decisions regarding the use of non-destructive examinations are exempt under the FTCA’s

discretionary function exception. Nevertheless, because this determination is made at least in

part on statements contained in the newly submitted Westphal and Stolz declarations, neither of

which have yet been subject to discovery, the Federal Defendants’ [87] Supplemental Motion for

Summary Judgment is DENIED WITHOUT PREJUDICE insofar as the government argues that

the discretionary function exception applies to decisions relating to the SDC design and whether

to use non-destructive examinations. Discovery in this case shall be reopened for the limited

purpose of permitting Plaintiffs and CESI to depose Mr. Westphal and/or Ms. Stolz as to the

                                                33
statements in their respective declarations, as may be appropriate, pursuant to the schedule set

forth in the accompanying Order.14 The Federal Defendants may then file a renewed motion on

this issue once the parties have had an opportunity to conduct discovery. An appropriate Order

accompanies this Memorandum Opinion.

Date: March 26, 2010

                                                          /s/
                                                     COLLEEN KOLLAR-KOTELLY
                                                     United States District Judge




       14
          As the Court has not relied upon or cited to Exhibit 9 to the Federal Defendants’
Supplemental Motion for Summary Judgment, which is a copy of the SDC Operations Manual,
there is no need to permit additional discovery to be taken with respect to the Manual.

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