Cangemi v. United States, 13 F.4th 115

Background:

Two stone jetties at the mouth of Lake Montauk Harbor (the "Jetties") stabilize the inlet; USACE operates and maintains them as a Federal Navigation Project (FNP) under a permanent easement from the Town of East Hampton, while the Town retains title to the Jetties and underlying land.
USACE conducted a Reconnaissance Study (1995) and later a feasibility process (LMH Study); the Town and State executed a Feasibility Cost Sharing Agreement (FCSA) and various internal USACE policies (including the 3x3x3 Paradigm and later DRAA milestones) influenced timing but did not compel final implementation.
Plaintiffs (adjacent property owners) sued alleging the Jetties caused downdrift erosion, bringing state-law private nuisance and trespass claims against the Town and FTCA tort claims against the United States; the jury initially awarded damages for nuisance/trespass against the Town.
The district court dismissed Plaintiffs’ FTCA claims against the United States under the discretionary function exception, finding USACE decisions were discretionary and susceptible to policy analysis and that neither the FCSA nor 3x3x3 imposed mandatory deadlines.
After trial the district court granted the Town’s renewed Rule 50(b) motion, holding the Town lacked control of the Jetties and thus no duty to abate; the Second Circuit affirmed both the FTCA dismissal and the JMOL for the Town.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether FTCA's discretionary-function exception bars Plaintiffs' tort claims against the United States	Delays and failures (FCSA, 3x3x3, DRAA milestones) imposed mandatory duties on USACE to complete the LMH Study and abate erosion	USACE had broad discretion; FCSA and 3x3x3 do not create specific mandatory directives; decisions are policy-driven	Held: DFE applies. Neither FCSA nor 3x3x3 imposed mandatory directives; LMH Study and USACE management are susceptible to policy analysis, so sovereign immunity bars FTCA claims.
Whether the Town had a duty to mitigate erosion (private nuisance) or committed trespass by owning the land under the Jetties	Town owned the land, knew of erosion, could have implemented sand-bypass measures, consented to/benefited from the Jetties, so it should be liable	Town lacked possession/control of Jetties (federal control under FNP/easement); it did not construct or maintain the Jetties and had no duty to abate	Held: JMOL for Town. Mere ownership without control does not create a duty to abate; no evidence Town knew of or should have known of the nuisance when title/easement transferred; trespass requires intentional act and immediate/inevitable intrusion which was not shown.
Whether the district court properly retained supplemental jurisdiction over state-law claims after dismissal of federal FTCA claims	Plaintiffs proceeded on state-law claims in federal court	Defendants argued jurisdictional issues after FTCA dismissal could preclude federal adjudication	Held: District court properly exercised supplemental jurisdiction (earlier- dismissed federal §1983 claims provided original jurisdiction basis and advanced state of litigation justified retention).

Key Cases Cited

United States v. Gaubert, 499 U.S. 315 (U.S. 1991) (establishes second prong of discretionary-function test: susceptibility to policy analysis)
Berkovitz v. United States, 486 U.S. 531 (U.S. 1988) (establishes two-part discretionary-function framework)
Copart Indus. v. Consol. Edison Co., 41 N.Y.2d 564 (N.Y. 1977) (elements and causation principles for private nuisance under New York law)
Wilks v. New York Telephone Co., 243 N.Y. 351 (N.Y. 1926) (landowner who relinquished control and did not create nuisance generally not liable for failure to abate)
Cohen v. Postal Holdings, LLC, 873 F.3d 394 (2d Cir. 2017) (limits on supplemental jurisdiction where no proper basis for original federal jurisdiction)
Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) (standard of review for Rule 12(b)(1) motions)