Jonatan Pornomo v. US
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 3:14-cv-00307-JRS. [999762086]. [14-2391]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2391
JONATAN PORNOMO, Administrator of the Estate of Sie Giok
Giang, Deceased,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:14-cv-00307-JRS)
Argued:
December 8, 2015
Decided:
February 25, 2016
Before AGEE and HARRIS, Circuit Judges, and Theodore D. CHUANG,
United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by published opinion. Judge Chuang wrote the opinion,
in which Judge Agee and Judge Harris joined.
ARGUED: Philip L. Bradfield, THE BRADFIELD INJURY LAW FIRM, PLC,
Newport News, Virginia, for Appellant.
Megan Barbero, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Mark B. Stern, Appellate Staff, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia; Paul M. Geier, Assistant General Counsel for
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Litigation, Paula Lee, Trial Attorney, Abel L. Smith, III,
Assistant Chief Counsel, FMCSA General Law Division, Sabrina E.
Redd, Attorney Advisor, FMCSA General Law Division, Federal
Motor Carrier Safety Administration, UNITED STATES DEPARTMENT OF
TRANSPORTATION, Washington, D.C., for Appellee.
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CHUANG, District Judge:
On May 31, 2011, Sie Giok Giang, a passenger on a Sky
Express
interstate
bus
traveling
from
North
Carolina
to
New
York, was killed when the driver fell asleep at the wheel and
ran the bus off the side of a Virginia highway.
weeks
before
the
“unsatisfactory”
crash,
safety
Sky
rating
Express
by
the
had
About seven
been
Federal
given
Motor
an
Carrier
Safety Administration (“FMCSA”), a rating that ordinarily would
require a passenger motor carrier to cease operations after 45
days.
The fatal crash occurred after that 45-day period, but
during an extension period granted by the FMCSA that allowed Sky
Express to remain on the road for an additional 10 days. At
issue is whether the discretionary function exception to the
Federal Tort Claims Act (“FTCA”) bars an FTCA claim against the
FMCSA for allowing Sky Express to continue to operate during
those 10 days.
that
The district court concluded that, pursuant to
exception,
it
dismissed the case.
lacked
subject
matter
jurisdiction
and
We affirm.
I.
A.
The present dispute stems from the operation of the federal
regulatory
scheme
for
monitoring
interstate passenger motor carriers.
Secretary
of
Transportation
(“the
3
the
safe
operation
of
Congress has charged the
Secretary”)
to
“determine
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whether an owner or operator is fit to operate safely commercial
motor vehicles.”
49 U.S.C. § 31144(a)(1) (2012).
In turn, the
Secretary has delegated this authority to the FMCSA.
§ 1.87(f) (2015).
49 C.F.R.
To carry out this mandate, the FMCSA has
promulgated regulations that provide for compliance reviews of
commercial motor carriers to ensure their safe operation.
C.F.R.
§§
385.3,
commercial
385.9.
motor
Based
carrier
is
on
a
given
compliance
a
safety
49
review,
rating
a
of
“satisfactory,” “conditional,” or “unsatisfactory.” Id. § 385.3.
A
“satisfactory”
adequate
rating
safety
means
management
that
the
controls
motor
in
carrier
place.
Id.
has
A
“conditional” rating means that the motor carrier does not have
adequate safety management controls in place and that the lack
of those controls “could result” in safety violations.
Id.
An
“unsatisfactory” rating means that the motor carrier “does not
have adequate safety management controls in place” and that the
lack
of
safety
violations.
management
controls
“has
resulted”
in
safety
Id.; see 49 C.F.R. § 385.5 (delineating salient
safety violations).
If a commercial motor carrier receives an “unsatisfactory”
rating,
Instead,
it
for
does
not
passenger
have
to
cease
carriers,
an
operation
immediately.
“unsatisfactory”
rating
becomes final “beginning on the 46th day after the date of the
FMCSA
notice
of
proposed
‘unsatisfactory’
4
rating,”
49
C.F.R.
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§ 385.13(a)(1), at which point the carrier may not operate until
the
owner
or
§ 31144(c)(2).
submitting
to
operator
is
found
to
be
“fit,”
49
U.S.C.
The carrier may seek an upgrade of its rating by
the
FMCSA
a
written
description
of
corrective
actions it has taken and documentation of those changes.
49
C.F.R. § 385.17(a)-(c).
A request for an upgrade does not toll
the
period.
45-day
provisional
However,
in
2011,
when
the
events at issue in this case occurred, the regulations provided
that
“[i]f
the
motor
carrier
has
submitted
evidence
that
corrective actions have been taken . . . and the FMCSA cannot
make a final determination within the 45-day period, the period
before the proposed safety rating becomes final may be extended
for up to 10 days at the discretion of the FMCSA.”
49 C.F.R.
§ 385.17(f)(2011).
In
2012,
the
FMCSA
rescinded
this
10-day
extension
provision to make the regulations “consistent with the policy
and the statutory language” of 49 U.S.C. § 31144(c)(2) and (4).
77
Fed.
Reg.
64,759,
64,759
(Oct.
23,
2012).
49
U.S.C.
§ 31144(c)(2) states that “[w]ith regard to owners or operators
of
commercial
motor
vehicles
designed
or
used
to
transport
passengers, an owner or operator who the Secretary determines is
not fit may not operate in interstate commerce beginning on the
46th day after the date of such fitness determination and until
the Secretary determines such owner or operator is fit.”
5
The
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statute
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provides
the
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Secretary
with
discretion
to
extend
operations for some carriers “for an additional 60 days,” but
expressly excludes passenger carriers from that provision.
49
U.S.C. § 31144(c)(4).
B.
In
2011,
Sky
Express,
Inc.,
a
commercial
motor
carrier
based in Charlotte, North Carolina, operated buses engaged in
interstate
passenger
transportation.
On
April
7,
2011,
the
FMCSA conducted a safety compliance review of Sky Express and
gave the carrier an “unsatisfactory” rating.
the
FMCSA
sent
Sky
Express
written
On April 12, 2011,
notice
of
that
rating,
explaining that the rating would become final in 45 days, on May
28,
2011,
unless
Sky
Express
took
“the
necessary
improve the rating to conditional or satisfactory.”
steps
to
J.A. 35.
On May 11, 2011, Sky Express submitted a Request for Change to
Proposed Safety Rating in which it detailed efforts it had taken
to resolve the safety issues identified in the April 7, 2011
compliance review.
After
reviewing
Sky
Express’s
submission,
the
FMCSA
concluded on May 12, 2011 that Sky Express had failed to provide
adequate
evidence
that
it
had
corrected
all
of
the
safety
violations and thus decided to conduct a follow-up compliance
review.
In a May 13, 2011 letter from FMCSA Field Administrator
Darrell Ruban to Sky Express, the FMCSA informed Sky Express
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that it was “denying” Sky Express’s request for a change in its
rating
because
the
submitted
materials
did
not
“provide
sufficient evidence that the violations cited in the compliance
review have been corrected.”
J.A. 52.
The letter then notified
Sky Express that the FMCSA would conduct a follow-up compliance
review before June 7, 2011, during which Sky Express would need
to
provide
additional
investigators.
documentation
for
review
by
safety
In a second letter sent that same day, the FMCSA
informed Sky Express that in order to provide additional time to
conduct the follow-up compliance review, the deadline for Sky
Express’s
“unsatisfactory”
rating
to
become
final
had
been
extended by 10 days, from May 28, 2011 to June 7, 2011.
During that 10-day extension period, on May 31, 2011 at
approximately 4:45 a.m., a Sky Express bus traveling northbound
on Interstate 95 crashed in Caroline County, Virginia after the
driver fell asleep at the wheel and allowed the bus to go off
the road and down an embankment.
The bus flipped over and
rolled upside down, and Sie Giok Giang, a passenger, suffocated
to death when her head became trapped between the collapsed bus
roof and the top of her seat.
C.
On April 28, 2014, Appellant Jonatan Pornomo, Giang’s adult
son and the administrator of Giang’s estate, filed a wrongful
death action against the United States pursuant to the Federal
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Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2012), in the
United
States
District
Court
Virginia, Richmond Division.
been
negligent
in
for
the
Eastern
District
of
Pornomo alleged that the FMCSA had
issuing
the
10-day
extension
because
the
language of 49 U.S.C. § 31144(c) does not permit any extension
of the 45-day deadline, such that the regulation authorizing
such an extension, 49 C.F.R. § 385.17(f), was invalid.
Pornomo
further contended that even if the FMCSA had the authority to
issue an extension under 49 C.F.R. § 385.17(f), the criteria for
issuance of such an extension had not been met.
The United States filed a Motion to Dismiss for Lack of
Subject Matter Jurisdiction, arguing that the district court did
not have jurisdiction over Pornomo’s claim because the issuance
of the 10-day extension was a discretionary act shielded from
suit under the discretionary function exception to the FTCA, and
because
Pornomo’s
claim
that
the
FMCSA
lacked
statutory
authority to promulgate and apply 49 C.F.R. § 385.17(f) was a
challenge
to
U.S.C.
2342(3)(A),
§
appeals.
the
The
validity
could
Government
of
the
be
also
regulation
raised
only
argued
that,
in
that
the
under
28
court
of
subject
matter
jurisdiction was lacking because the conduct at issue here did
not constitute a tort under Virginia law.
The district court granted the Motion, holding that the
discretionary
function
exception
8
applied
to
the
decision
to
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issue the 10-day extension and that the United States therefore
had not waived sovereign immunity for this suit.
The court
found that the plain language of 49 C.F.R. § 385.17(f) afforded
the agency discretion to grant an extension.
“still
a
provided
discretionary
two
decision”
preconditions,
even
because
The decision was
though
those
the
regulation
preconditions
were
“not detailed” or a “safety check list,” but instead required
the application of FMCSA’s “expertise” to determine whether they
had been met.
J.A. 14-15.
The court then concluded that the
“FMCSA received a detailed, written corrective action plan from
Sky Express but determined, using its judgment, that it needed
more information to verify the contents of the plan.”
15.
Id. at
It further found that the “FMCSA determined it was unable
to make a final determination concerning Sky Express’ operating
authority registration and therefore granted the extension to
provide
review.”
additional
Id.
time
to
conduct
a
follow-up
compliance
The district court thus dismissed the case for
lack of subject matter jurisdiction.
The district court did not
directly address Pornomo’s argument that 49 C.F.R. § 385.17(f)
was invalid because the enabling statute does not permit any
extensions for passenger carriers.
It also did not address the
Government’s
FMCSA’s
argument
that
the
constitute a tort under Virginia law.
9
conduct
did
not
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Pornomo appealed.
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We have jurisdiction under 28 U.S.C.
§ 1291.
II.
Pornomo
first
claims
that
the
district
court
erred
in
dismissing the Complaint because the facts related to subject
matter jurisdiction are intertwined with the facts central to
the merits of his claim.
Because Pornomo did not make this
argument below, it is waived.
Robinson v. Equifax Information
Services,
242
LLC,
560
F.3d
235,
(4th
Cir.
2009)
(“Absent
exceptional circumstances . . . we do not consider issues raised
for the first time on appeal.”) (quoting Volvo Const. Equip. N.
Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004));
Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (“As this
court has repeatedly held, issues raised for the first time on
appeal generally will not be considered.”).
Pornomo also contends that the district court erred in (1)
finding
that
the
issuance
of
the
10-day
extension
was
a
discretionary act, such that the court lacked subject matter
jurisdiction pursuant to the discretionary function exception to
the FTCA; and (2) failing to find that 49 C.F.R. § 385.17(f)
(2011) was invalid because its provision authorizing a 10-day
extension exceeded the agency’s statutory authority.
these arguments in turn.
10
We address
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A.
The district court dismissed Pornomo’s complaint for lack
of subject matter jurisdiction because it found that the United
States had not waived sovereign immunity.
States,
259
Government’s
F.3d
220,
potential
jurisdiction[.]”).
223-24
immunity
(4th
from
See Medina v. United
Cir.
suit
441
F.3d
(“[T]he
affects
our
We review a district court’s dismissal for
lack of subject matter jurisdiction de novo.
States,
2001)
306,
310
(4th
Cir.
2006).
Suter v. United
In
determining
whether subject matter jurisdiction exists, the reviewing court
is not limited to the grounds relied on by the district court,
but rather “may affirm on any grounds apparent from the record.”
Id.
B.
“As a sovereign, the United States is immune from all suits
against it absent an express waiver of its immunity.”
Welch,
Jr. v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing
United States v. Sherwood, 312 U.S. 584, 586 (1941)).
Because
the default position is that the federal government is immune to
suit, any waiver of that immunity “must be ‘strictly construed
. . . in favor of the sovereign.’”
Id. at 650-51 (quoting Lane
v. Pena, 518 U.S. 187, 192 (1996)) (ellipses in original).
Pornomo’s tort claims are brought under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680.
11
The FTCA does not
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create a new cause of action; rather, it permits the United
States to be held liable in tort by providing a limited waiver
of
sovereign
immunity
“for
injury
or
loss
caused
by
the
negligent or wrongful act of a Government employee acting within
the scope of his or her employment.”
Medina, 259 F.3d at 223.
The FTCA renders the United States liable for such tort claims
“in
the
same
manner
and
to
the
same
individual under like circumstances.”
The
FTCA
immunity.
contains
In
several
particular,
extent
a
private
28 U.S.C. § 2674.
exceptions
the
as
FTCA’s
to
its
waiver
waiver
of
of
sovereign
immunity does not extend to any claim “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).
To determine whether this discretionary function exception
applies, courts apply a two-part test.
decide
whether
the
conduct
at
issue
The first step is to
involves
“an
element
of
judgment or choice” by the employee, rather than, for example,
“when
a
federal
prescribes
Berkovitz
statute,
a
course
v.
United
of
regulation,
action
States,
486
for
or
an
U.S.
policy
employee
531,
536
specifically
to
follow.”
(1988).
The
second step is to determine whether that judgment “is of the
kind that the discretionary function exception was designed to
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shield” in that the judgment relates to a governmental action or
decision “based on considerations of public policy.”
Id. at
536-37; see Suter, 441 F.3d at 310-11.
If an action is discretionary within the meaning of the
exception, the exception applies “whether or not the discretion
involved be abused.”
28 U.S.C. § 2680(a); United States v.
Gaubert, 499 U.S. 315, 323 (1991) (noting that discretionary
actions are “protected, even if those particular actions were
negligent”).
exercised
It
applies
erroneously”
“even
and
relevant policy purpose.
is
if
deemed
the
to
discretion
have
has
frustrated
been
the
Holbrook v. United States, 673 F.3d
341, 350 (4th Cir. 2012).
“The inquiry is thus whether the
discretion exists, not whether in later litigation it is alleged
to have been abused.
Were it otherwise, Congress’ intent to
shield an agency’s discretionary decisions from FTCA lawsuits
would be set at naught.”
Id.
III.
“[W]hatever else the discretionary function exception may
include, it plainly was intended to encompass the discretionary
acts of the Government acting in its role as a regulator of the
conduct of private individuals.”
United States v. S.A. Empresa
de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,
813-14 (1984).
As discussed below, because the FMCSA’s decision
to grant the 10-day extension pursuant to an existing regulation
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involved an “element of judgment or choice” and was “based on
considerations
of
exception applies.
Pornomo
government
does
public
policy,”
the
discretionary
function
Berkovitz, 486 U.S. at 536-37.
not
regulators’
dispute
that
safety
the
matter
determinations
at
for
issue,
commercial
motor vehicles, involves considerations of public policy.
See
United States v. Gaubert, 499 U.S. 323, 324 (1991) (stating that
if
a
regulation
discretion,
it
“allows
must
be
a
Government
presumed
that
agent
the
to
agent’s
grounded in policy when exercising that discretion”).
exercise
acts
are
Thus, the
applicability of the discretionary function exception turns on
the
first
prong:
whether
the
conduct
at
issue
involves
an
element of judgment or choice.
The 10-day extension was issued pursuant to a regulation
that states,
If the motor carrier has submitted evidence that
corrective actions have been taken pursuant to this
section
and
the
FMCSA
cannot
make
a
final
determination with the 45-day period, the period
before the proposed safety rating becomes final may be
extended for up to 10 days at the discretion of the
FMCSA.
49 C.F.R. § 385.17(f) (2011) (emphasis added).
the
regulation,
therefore,
the
act
of
On the face of
granting
an
extension
requires an exercise of judgment or choice by the FMCSA.
The
regulation thus differs markedly from the mandatory provisions
at
issue
in
the
cases
cited
by
14
Pornomo
in
which
regulatory
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action was deemed nondiscretionary.
See Berkovitz, 486 U.S. at
543-44 (finding that the discretionary function exception did
not bar an FTCA claim against a federal agency for licensing
polio vaccine without first receiving mandatory safety data and
determining compliance with safety standards); In re: Sabin Oral
Polio Vaccine Prods. Liab. Litig., 984 F.2d 124, 127 (4th Cir.
1993) (finding that release of a vaccine upon meeting mandatory
safety requirements was a nondiscretionary function).
Pornomo nevertheless argues that the discretionary function
exception does not bar his claim because § 385.17(f) gives the
FMCSA discretion to grant a 10-day extension only if and when
two
conditions
have
been
met:
(1)
the
motor
carrier
has
submitted evidence that corrective actions have been taken; and
(2) the FMCSA cannot make a final determination within the 45day period.
because
the
49 C.F.R. § 385.17 (2011).
first
May
13,
2011
FMCSA
Pornomo asserts that
letter
to
Sky
Express
stated that the company had “failed to demonstrate that adequate
corrective actions have been taken to address the acute and/or
critical
violations”
and
that
the
agency
was
“denying”
Sky
Express’s request to upgrade its safety rating, J.A. 52, the
FMCSA had already made a final determination as of that date.
Pornomo thus asserts that neither condition was satisfied, such
that the FMCSA was not vested with the discretion referenced in
the regulation.
15
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This argument cuts too fine a distinction.
room
for
policy
judgment
and
decision
“Where there is
there
is
discretion.”
Dalehite v. United States, 346 U.S. 15, 36 (1953).
In Holbrook,
this Court held that the discretionary function exception barred
an FTCA claim arising from a Federal Aviation Administration
(“FAA”) issuance of an airworthiness certificate.
349.
673 F.3d at
The Court determined that a predicate requirement in the
relevant regulation, that an aircraft’s application must include
a
certification
from
the
country
of
manufacture
that
the
aircraft conformed to its type design and was safe to operate,
afforded
discretion
to
the
FAA
to
“make
its
own
findings”
whether the submitted documentation satisfied that requirement.
Id.
Likewise,
as
the
district
§ 385.17(f) is not a “check list.”
to
the
FMCSA
to
determine
court
noted,
J.A. at 105.
whether
a
49
C.F.R.
It leaves it
carrier’s
submission
provides evidence that corrective action has been taken, and
whether the agency has the resources to reach a final decision
within 45 days.
Such decisions, which relate to a regulatory
agency’s “implementation of a mechanism for compliance review”
and necessarily require “balancing the objectives sought to be
obtained against such practical considerations as staffing and
funding,” constitute discretionary functions themselves.
Varig
Airlines, 467 U.S. at 819-20 (holding that the FAA’s application
of
a
spot-check
system
to
a
16
particular
aircraft
was
a
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discretionary
§ 385.17(f)
appearing
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function).
(2011),
only
Discretion
rather
after
Pg: 17 of 22
than,
certain
thus
as
suffuses
Pornomo
mandatory
49
would
predicates
C.F.R.
have
have
it,
been
satisfied.
The FMCSA, in fact, exercised this discretion.
Although
Pornomo focuses on the FMCSA’s statement in its first May 13,
2011 letter that it was “denying” Sky Express’s request, J.A.
52, an FMCSA internal memorandum dated May 12, 2011 indicates
that the FMCSA had reviewed Sky Express’s submission, found that
it
had
submitted
some
evidence
of
corrective
actions,
but
concluded that those actions did not address “all violations”
and were “not sufficient to correct the deficiencies discovered
during the compliance review.”
matter,
the
FMCSA
then
J.A. 44.
determined
Rather than close the
that
it
would
conduct
a
follow-up compliance review “prior to June 7, 2011,” which would
be 10 days after the expiration of the 45-day period.
44.
of
Id. at
It then informed Sky Express, in the first May 13 letter,
the
Express
follow-up
prepare
compliance
to
review
provide
examination” at that review.
and
additional
Id. at 53.
requested
that
documentation
Sky
“for
Thus, the FMCSA made
the judgments that Sky Express had submitted some “evidence that
corrective actions have been taken,” 49 C.F.R. § 385.17 (2011),
and
that
the
FMCSA
needed
additional
determination on Sky Express’s rating.
17
time
to
make
a
final
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Ultimately,
correct
in
it
these
does
Pg: 18 of 22
not
matter
judgments.
whether
The
the
FMCSA
discretionary
was
function
exception applies “whether or not the discretion involved be
abused,” 28 U.S.C. § 2680(a), and “even if the discretion has
been exercised erroneously,” Holbrook, 673 F.3d at 350 (quoting
Gaubert, 499 U.S. at 338 (Scalia, J., concurring in part and
concurring in the judgment)) (rejecting the argument that an
allegedly
erroneous
helicopter
conformed
discretionary).
determination
to
a
by
an
certificate
FAA
official
requirement
that
was
a
not
“If it were not so, the protection of § 2680(a)
would fail at the time it would be needed[.]”
Dalehite, 346
U.S. at 36.
Here, where the FMCSA made judgments on (1) whether
Sky
had
Express
submitted
sufficient
evidence
of
corrective
action to warrant a follow-up compliance review and (2) whether
such a review could reasonably and fairly be conducted without
an extension of the 45-day period for establishing fitness, the
FMCSA was exercising discretion within the meaning of the FTCA.
The FMCSA may have taken certain “calculated risks,” but it did
so
for
a
regulation.
the
FAA’s
specific
governmental
purpose
pursuant
to
a
governing
See Varig Airlines, 467 U.S. at 820 (holding that
alleged
items
in
negligence
the
in
course
of
failing
to
check
certificating
a
certain
specific
aircraft as part of a spot-check program involved “calculated
risks”
but
fell
“squarely
within
18
the
discretionary
function
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exception”).
The district court thus properly concluded that
the
of
granting
the
10-day
extension
was
a
discretionary
decision that could not form the basis of an FTCA claim.
IV.
Pornomo
further
argues
that
even
if
the
FMCSA
was
authorized by 49 C.F.R. § 385.17(f) to exercise its discretion
to grant a 10-day extension, that regulation was invalid because
the plain and unambiguous language of the underlying statute, 49
U.S.C.
§
31144,
barred
the
grant
of
any
such
extension.
Pornomo’s argument is essentially a challenge to the validity of
49 C.F.R. § 385.17(f) (2011).
of an FTCA claim.
that
the
As such, it cannot be the basis
As a general matter, “[i]t was not intended
constitutionality
of
legislation,
the
legality
of
regulations, or the propriety of a discretionary administrative
act should be tested through the medium of a damage suit for
tort.”
Dalehite,
346
U.S.
at
27
(internal
quotation
mark
omitted); Welch, Jr. v. United States, 409 F.3d 646, 653 (4th
Cir. 2005) (stating that the FTCA does “not provide a venue in
which
to
challenge
specifically,
Congress
the
has
validity
granted
of
[a]
the
law”).
courts
of
More
appeals
exclusive jurisdiction to determine the validity of “all rules,
regulations, or final orders of the Secretary of Transportation
issued pursuant to . . . subchapter III of chapter 311 . . . of
title
49,”
which
includes
49
19
U.S.C.
§
31144.
28
U.S.C.
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§ 2342(3)(A).
Pg: 20 of 22
Because Pornomo’s claim that the grant of a 10-
day extension pursuant 49 C.F.R. § 385.17(f) violated 49 U.S.C.
§ 31144
amounts
to
a
challenge
to
the
validity
of
that
regulation, the district court had no jurisdiction to hear it.
See 28 U.S.C. § 2342(3)(A).
Even if Pornomo could challenge the validity of 49 C.F.R.
§ 385.17(f) in the district court, the court would still lack
jurisdiction
over
his
FTCA
claim
because
the
FMCSA’s
promulgation of the regulation was itself a discretionary act.
“[T]here is no doubt that planning-level decisions establishing
programs are protected by the discretionary function exception,
as is the promulgation of regulations by which the agencies are
to carry out the programs.”
Gaubert, 499 U.S. at 323.
Thus,
the FMCSA’s decision to promulgate 49 C.F.R. § 385.17(f), even
if that decision proved to be an abuse of discretion, would be
shielded by the discretionary function exception.
See 28 U.S.C.
§ 2680(a).
Pornomo attempts to circumvent this conclusion by asserting
that
49
C.F.R.
§
385.17(f)
is
so
plainly
at
odds
with
the
language of 49 U.S.C. § 31144(c)(2) that the promulgation of the
regulation could not have been an act of discretion.
In support
of this argument, he marshals 49 U.S.C. § 31144(c)(2), which
requires that passenger carriers stop operating 45 days after
they have been deemed unfit, and § 31144(c)(4), which grants the
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Secretary discretion to “allow an owner or operator who is not
fit to continue operating for an additional 60 days” if it is
“making
a
good
faith
effort
to
become
fit,”
but
exempts passenger carriers from that provision.
of
passenger
carriers
from
the
60-day
expressly
The exclusion
extension,
Pornomo
reasons, must mean that no extension of the 45-day period is
permitted.
He also notes that in 2012, the FMCSA rescinded the
10-day extension provision in 49 C.F.R. § 385.17(f) to make the
regulations
“consistent
with
the
policy
and
the
statutory
language” of 49 U.S.C. § 31144(c)(2) and (4). 77 Fed. Reg. at
64,759.
Yet
Pornomo’s
conclusion
is
by
no
means
certain.
As
drafted, 49 U.S.C. § 31144(c)(2) prohibits owners and operators
of commercial passenger carriers from operating under certain
conditions.
The
statute
does
not
expressly
proscribe
or
prescribe a particular course of action for the Secretary of
Transportation.
Nor does 49 U.S.C. § 31144(c)(4) flatly bar the
FMCSA’s action, because it exempts passenger carriers only from
60-day extensions, not necessarily ones of more modest duration,
such as the one here.
that
a
purposes
government
of
See Berkovitz, 486 U.S. at 536 (noting
official
determining
lacks
whether
judgment
the
or
choice
discretionary
for
the
function
exception applies when “a federal statute, regulation, or policy
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specifically prescribes a course of action for an employee to
follow”) (emphasis added)).
While one may conclude, as the FMCSA itself later did, that
the better reading of these statutory provisions is that 45 days
is a hard deadline for passenger carriers with unsatisfactory
ratings, a better reading is not the same as a necessary one.
Considering
strictly
that
any
construed,
waiver
the
of
sovereign
FMCSA’s
immunity
decision
to
must
promulgate
be
a
regulation permitting 10-day extensions for passenger carriers
was a permissible exercise of judgment subject to the FTCA’s
discretionary
function
sovereign immunity.
exception
and
thus
did
See Gaubert, 499 U.S. at 323.
not
waive
The district
court therefore correctly dismissed the case for lack of subject
matter jurisdiction.
Having reached this conclusion, we need not address the
Government’s
argument
that
the
FMCSA’s
conduct
does
not
constitute a tort under Virginia law.
V.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
22
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