Lorrin Whisnant, Individually v. United States

Plaintiff-appellant Lorrin Whisnant appeals the district court’s dismissal of his Federal Tort Claims Act suit against the United States for negligence in its operation of a commissary on a naval base. Whisnant claims he became ill as a result of regular exposure to the toxic mold the government negligently allowed to colonize the commissary’s meat department over a period of three years. Holding this action barred by the discretionary function exception to the FTCA, the district court dismissed for lack of subject matter jurisdiction. We hold that the government’s alleged failure to maintain safe and healthy premises was not a decision susceptible to considerations of social, economic or political policy. We therefore reverse the dismissal of Whisnant’s suit.

I. BACKGROUND

Where a defendant in its motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) asserts that the allegations in the complaint are insufficient to establish subject matter jurisdiction as a matter of law (to be distinguished from a claim that the allegations on which jurisdiction depends are not true as a matter of fact), we take the allegations in the plaintiffs complaint as true. Wolfe v.…