           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 29, 2009

                                       No. 08-31119                    Charles R. Fulbruge III
                                                                               Clerk

KEVIN DAVIS, Surviving Spouse of Decedent, Donise Davis,
Individually and as Court-Appointed Administrator of the
Succession of Donise Davis and the Succession of Donise
Davis; LESLIE MICHELLE LASENBURG, Widow of Kevin Davis and
also as court-appointed Administratrix of the Succession of
Kevin Michael Davis; MARY BETH BROWN, surviving mother
of Donise Davis, and as court-appointed Administratrix of the
Succession of Donise Davis; KEITH DAVIS

                                                   Plaintiffs - Appellants
v.

UNITED STATES OF AMERICA

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:07-cv-03040


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       The family of a person tragically killed during a Hurricane Katrina rescue
operation brought suit against the United States. The district court dismissed,


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-31119

finding no subject matter jurisdiction because of statutory limits on liability in
such situations. We AFFIRM.
               I. FACTS AND PROCEDURAL BACKGROUND
      When Hurricane Katrina struck the coasts of Louisiana and Mississippi
on August 29, 2005, the President declared that a major disaster existed. He
authorized federal assistance in the recovery. Under that authorization, the
U.S. Navy performed search and rescue missions for stranded survivors.
      On September 2, 2005, Kevin Davis and Donise Davis were among those
who escaped the floodwaters by climbing onto the elevated Claiborne Avenue
Expressway in New Orleans. A Navy helicopter arrived to offer rescue. Its crew
consisted of two pilots, a rescue swimmer, and a hoist operator. The helicopter
hovered at forty feet above the expressway. The rescue swimmer – which was
his duty description, but the rescue was being attempted on the roadway above
the water – was lowered.
      After descending, the rescuer placed a rescue strop around Ms. Davis.
During the lift, the hoist operator noticed that Ms. Davis’s arms had become free
of the restraining straps, and she was sinking into the rescue strop. The hoist
operator and the rescue swimmer attempted to lift Ms. Davis into the helicopter
cabin. After a brief struggle, Ms. Davis lifted her arms straight up and fell
approximately forty feet onto the expressway.
      Because the crew had no rescue basket, the pilot radioed a nearby Coast
Guard helicopter for assistance. The Navy helicopter left the scene to make way,
and the Coast Guard helicopter arrived.        Rescuers lifted Davis into their
helicopter by rescue basket. She died as a result of the injuries suffered in her
fall during the Navy’s rescue attempt.


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      Ms. Davis’s husband filed suit in district court against the United States
under the Federal Tort Claims Act and the Louisiana Civil Code. He alleged
various torts including wrongful death, negligence, and battery.               The
Government asserted as a defense the immunity provisions of the Robert T.
Stafford Disaster Relief and Emergency Assistance Act and the Federal Tort
Claims Act. See 42 U.S.C. § 5148; 28 U.S.C. § 2680(a).
      The Government moved to dismiss the case for lack of subject matter
jurisdiction or, in the alternative, for summary judgment. After oral argument,
the district court granted the motion. In its findings, the district court concluded
that the Government was immune from suit.
                                II. DISCUSSION
      We review de novo a district court’s dismissal for lack of subject matter
jurisdiction. St. Tammany Parish ex rel. Davis v. Fed. Emergency Mgmt. Agency,
556 F.3d 307, 315 (5th Cir. 2009).
      The party which asserts jurisdiction bears the burden of proof for a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(1). Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001). A Rule 12(b)(1) motion should be
granted only “if it appears certain that the plaintiff cannot prove a plausible set
of facts that establish subject-matter jurisdiction.” Castro v. United States, 560
F.3d 381, 386 (5th Cir. 2009). In ruling on such a motion, the court may consider
any one of the following:     (1) the complaint alone; (2) the complaint plus
undisputed facts evidenced in the record; or (3) the complaint, undisputed facts,
and the court's resolution of disputed facts. Lane v. Halliburton, 529 F.3d 548,
557 (5th Cir. 2008).




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      Due to sovereign immunity, the United States can only be sued with
Congress’s consent. Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461
U.S. 273, 287 (1983).     The Federal Tort Claims Act lowers the sovereign
immunity barrier for certain tort suits for money damages. In re Supreme Beef
Processors, Inc., 468 F.3d 248, 252 (5th Cir. 2006). The Federal Tort Claims Act,
though, contains a discretionary function exception that makes the United
States not liable for the following:
      Any claim based upon an act or omission of an employee of the
      Government, exercising due care, in the execution of a statute or
      regulation, whether or not such statute or regulation be valid, or
      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, whether or not the
      discretion involved be abused.
28 U.S.C. § 2680(a).
      Similarly, the Stafford Act precludes government liability “for any claim
based upon the exercise or performance of or the failure to exercise or perform
a discretionary function or duty on the part of a Federal agency.” 42 U.S.C. §
5148. This court recently held that the meaning of “discretionary function or
duty” is the same in the Stafford Act and in the Federal Tort Claims Act. St.
Tammany Parish, 556 F.3d at 319; 42 U.S.C. § 5148; 28 U.S.C. § 2680(a).
      A two-part test has been established for determining whether the
discretionary function exception applies to government employee conduct.
United States v. Gaubert, 499 U.S. 315 (1991). First, the conduct must involve
“an element of judgment or choice.” Id. at 322 (quoting Berkovitz v. United
States, 486 U.S. 531, 536 (1988)). Second, the judgment or choice must be based




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on considerations of public policy, for that is the kind of judgment the
discretionary function exception was designed to shield. Id. at 322-23.
      We examine the Government’s conduct under the first Gaubert prong. The
Davis family identifies some mandatory language in the Navy’s Search and
Rescue Manual. Importantly, though, the manual’s preface provides that a
“rescue environment may require deviation from procedures contained herein.
Deviation from specified rescue procedures is authorized in emergency situations
when safety justifies such a deviation.” Hurricane Katrina presented the sort
of emergency situation justifying a deviation from the manual’s provisions. The
acts of alleged negligence were discretionary decisions made by the rescuers.
      We turn now to the second Gaubert prong. If a regulation allows employee
discretion, the regulation creates a “strong presumption” that the discretionary
act authorized by the regulation involves the same policy considerations that led
to the creation of the regulation. Gaubert, 499 U.S. at 324. Decisions about
“when, where, and how to allocate limited resources within the exigencies of an
emergency” are the types of policy decisions protected by the discretionary
function exception. Freeman v. United States, 556 F.3d 326, 340 (5th Cir. 2009).
      In the emergency left in the wake of Hurricane Katrina, rescuers had to
allocate their time and resources. The failed rescue of the decedent resulted
from an on-the-spot balance of the rescue need with the safety considerations of
doing so with the equipment available.      Safety, efficiency, timeliness, and
allocations of resources were all necessary to consider, the very policy
considerations under the Gaubert framework that made the acts discretionary.
                              III. CONCLUSION




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      The Davis family did not identify a mandatory duty breached by the U.S.
Navy rescuers. Further, the rescuers’ decisions were grounded in public policy
considerations.   Consequently, the discretionary function exceptions of the
Stafford Act and the Federal Tort Claims Act apply.
      The judgment of the district court is AFFIRMED.




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