Harrelson v. United States of America et al (CONSENT)

Filing 16

MEMORANDUM OPINION. Signed by Honorable Judge Charles S. Coody on 7/2/2012. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
DINAH KAYE HARRELSON, as
Personal Representive of the Estate
of Tony Wayne Harrelson, deceased,
Plaintiff,
v.
UNITED STATES OF AMERICA,
through its agents, servants, and
employees or agents, servants, and
employees of its agency the United
States Postal Service,
Defendant.

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CIVIL ACT. NO. 3:11cv827-CSC
(WO)

MEMORANDUM OPINION
On September 30, 2011, the plaintiff, Dinah Kaye Harrelson (“Harrelson”), filed this
complaint against the United States of America, through its agency, the United States Postal
Service, under the Federal Tort Claims Act (“FTCA”) alleging negligence, and wantonness.
Harrelson alleges that the Postmaster of Camp Hill Post Office failed to ensure adequate
safety measures at that post office, thereby placing postal employees at great risk. As a result
of the Postmaster’s failure to provide adequate security, Harrelson’s husband, a contract
employee for the United States Postal Service, was murdered while picking up mail at the
Camp Hill Post Office. Harrelson seeks compensatory damages.1 The court has jurisdiction
of this case pursuant to the jurisdictional grant contained in 28 U.S.C. § 1346.

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In her administrative claim, Harrelson sought $2,000,000.00. (Doc. # 1 at 2, ¶ 4).

On December 5, 2011, the defendant filed a motion to dismiss pursuant to
FED.R.CIV.P. 12(b)(1), asserting that this court lacks subject matter jurisdiction because the
plaintiff’s claims are barred by the discretionary function exception to the FTCA, 28 U.S.C.
§ 1346(b) and 2680(a). (Doc. # 7.) Pursuant to 28 U.S.C. § 636(c)(1) and M.D. Ala. LR
73.1, the parties have consented to a United States Magistrate Judge conducting all
proceedings in this case and ordering the entry of final judgment. The court has carefully
reviewed the motion, the briefs filed in support of and in opposition to the motion, and
concludes that the defendant’s motion to dismiss is due to be granted.
DISCUSSION
Harrelson’s exclusive remedy is pursuant to the Federal Tort Claims Act. See 28
U.S.C. § 2679. Under the FTCA, Congress waived sovereign immunity and granted consent
for the United States to be sued for acts committed by any “employee of the Government
while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). The
FTCA, in pertinent part, provides that
the district courts ... shall have exclusive jurisdiction of civil actions on claims
against the United States, for money damages ... for injury or loss of property,
or personal injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office
or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.
28 U.S.C. § 1346(b) & § 2679(b)(1). “It is, of course, ‘axiomatic’ under the principle of
sovereign immunity ‘that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.’” Adeleke v. United States, 355 F.3d
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144, 150 (2nd Cir. 2004) (quoting United States v. Mitchell, 463 U.S. 206 (1983)); Means v.
United States, 176 F.3d 1376, 1378 (11th Cir. 1999) (“[S]overeign immunity bars suit against
the United States [and its agencies] except to the extent it consents to be sued.”). In
accordance with the status conferred by the Postal Reorganization Act, 39 U.S.C. § 101, et
seq., “the Postal Service enjoys federal sovereign immunity absent a waiver.” Dolan v.
United States Postal Serv., 546 U.S. 481, 484 (2006).
Although the Postal Reorganization Act generally “waives the immunity
of the Postal Service from suit by giving it the power ‘to sue and be sued in its
official name,’” Flamingo Industries, supra, at 741, 124 S.Ct. 1321 (quoting
39 U.S.C. § 401(1)), the statute also provides that the FTCA “shall apply to
tort claims arising out of activities of the Postal Service,” § 409(c).
Id. The FTCA likewise waives the United States government’s sovereign immunity from suit
in federal courts for certain tort claims arising from the actions of its employees. Cohen v.
United States, 151 F.3d 1338, 1340 (11th Cir. 1998); Ochran v. United States, 117 F.3d 495,
499 (11th Cir. 1997).
However, there are several explicit exceptions to this waiver of sovereign immunity,
Cohen, 151 F.3d at 1340, including the “discretionary function” exception at issue here. That
exception provides that the Government is not liable for
“[a]ny 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).

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The exception covers only acts that are discretionary in nature, acts that “involv[e] an
element of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322 (1990)
quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988). “[I]t is the nature of the
conduct, rather than the status of the actor” that governs whether the exception applies.
United States v. Varig Airlines, 467 U.S. 797, 813 (1984). In order for a claim to fall within
the discretionary function exception of the FTCA, it must meet two requirements: (1) the
challenged decision must involve an element of choice, and (2) the governmental decision
must implicate an exercise of judgment grounded on considerations of public policy.
Gaubert, 499 U.S. at 322. As to the first inquiry, “if a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow,” and “the employee has
no rightful option but to adhere to the directive,” the conduct does not involve an element of
choice and therefore is not discretionary. Id. (internal marks omitted); Berkovtiz, 486 U.S.
at 536.
Harrelson relies on the Postal Operations Manual to assert that her claims are
redressable under the FTCA because POM section 137.71 mandates that postal supervisors
prevent any unauthorized access to mail handling areas. Harrelson contends that postal
supervisors have no discretion in deciding to take measures to comply with that mandate.
(Doc. # 11 at 5). Section 137.71 of the Postal Operations Manual provides as follows:
Authority to access to mail and mailhandling areas in postal facilities is
restricted to duly sworn postal employees and postal contractors on official
business. Nonpostal maintenance personnel are permitted access to
mailhandling areas only when postal employees are on duty there. All other
persons (including former employees and off-duty employees) must be
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specifically authorized access by the postal supervisor in the area involved.
Id. at § 137.71.
Harrelson argues that because section 137.71 “severely restricts” access to the mail
handling areas, “[n]o individual post office had the discretion to do nothing to prevent
unauthorized access because a policy decision had been made to nationally bar all
unauthorized access, even by off-duty postal employees.” (Doc. # 11 at 5). According to
Harrelson, postal supervisors at the Camp Hill post office were required to “enforce the
absolute ban on unauthorized accessing of the mail and mailhandling area,” and thus, they
had no discretion in preventing all unauthorized access. (Id. at 6). Section 137.71 cannot be
read in isolation, but rather must be considered in conjunction with other provisions
contained in the Operations Manual. For example, the overview section clearly delineates
that
[t]his section contains general information concerning acceptance and handling
of domestic and international mail and is provided as a convenient guide for
use by postal employees involved in retail and retail-related services. In no
instance should these general guidelines be construed to supersede the rules
and regulations contained in the DMM and IMM.
Postal Operations Manual, Mail Acceptance and Handling, § 137, p. 47 (Issue 9, July 2002).
The first question for the court to determine is whether authorizing access to mail
handling areas and security measures employed by postal supervisors at the Camp Hill post
office were within their discretionary authority. A governmental action is not discretionary
if “a federal statute, regulation, or policy specifically prescribes a course of action for an
employee to follow.” Berkovitz, 486 U.S. at 536. The plaintiff’s interpretation of section
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137.71 ignores the discretion inherent in the section to control access to areas in question.
The policy before the court demonstrates that the postal supervisors have considerable
discretion about permitting access to mail handling areas. “All other persons (including
former employees and off-duty employees) must be specifically authorized access by the
postal supervisor in the area involved.” Postal Operations Manual, Mail Acceptance and
Handling, § 137.71 (Issue 9, July 2002). While the regulation requires authorization prior
to access to mail handling areas, the ability to authorize that access is clearly a grant of
discretion, permitting postal supervisors to decide who and when to allow access. Clearly,
no federal statute, regulation, or policy specifies precisely how or when postal supervisors
are to authorize access to mail handling areas. In Hughes v. United States, 110 F.3d 765 (11th
Cir. 1997), the Eleventh Circuit held that the general guidelines contained in the Postal
Operations Manual “do not mandate a specific course of conduct regarding security at a post
office.” Id. at 768. Although the plaintiff in Hughes relied on regulations related to security
in post office lobbies, the court also relied on the general regulations designating the
postmaster of each post office as the Security Control Officer.
Regarding each individual post office, the postmaster or a supervisor
designated by the postmaster acts as Security Control Officer for that post
office and is “responsible for the general security of the post office, its stations
and branches, in accordance with rules and regulations issued by the Chief
Postal Inspector.” 39 C.F.R. § 231.2. In addition, the Postal Operations
Manual serves as regulations of the Postal Service. 39 C.F.R. § 211.2(a)(2).
Id.
Thus, the court concludes that postal supervisors’ authority to permit access to

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mailhandling areas and other security issues require “an element of judgment or choice,” and
is therefore discretionary. See Gaubert, 499 U.S. at 322. See also Rodriguez v. United
States, 415 Fed. Appx. 143, 145 (11th Cir. 2011); Williams v. United States, 314 Fed. Appx.
253, 259 (11th Cir. 2009); OSI, Inc. v. United States, 285 F.3d 947, 950 (11th Cir. 2002).
Next, the court must determine whether the judgment afforded postal supervisors
regarding access and security “is the type of judgment that the discretionary function
exception was designed to shield.” Hughes, 110 F.3d at 768. “[T]o prevent judicial secondguessing,” the court determines whether the challenged decisions were based on social,
economic, or public policy because the discretionary function exception operates to protect
“governmental actions and decisions based on considerations of public policy.” Gaubert,
499 at 323. In making this determination, the court does not consider that subjective intent
of the government employee or whether the employee actually weighed social, economic and
political considerations. Varig, 467 U.S. at 814. Rather, the court looks to “the nature of the
actions taken and on whether they are susceptible to policy analysis.” Gaubert, 499 U.S. at
325.
The Postal Service is charged with the responsibility of operating “as a basic and
fundamental service provided to the people by the Government of the United States. . . .
[with] its basic function the obligation to bind the Nation together through the personal,
educational, literary, and business correspondence of the people.” 39 U.S.C. § 101(a). To
achieve this goal, the Postal Service “shall provide prompt, reliable, and efficient services
to patrons in all areas and shall render postal services to all communities.” Id. Security
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decisions at post offices are “a fundamental part of the economic and social policy analysis
required” to provide such service. Hughes, 110 F.3d at 768-69. Determination of how to
provide necessary security, including authorizing access to mail handling areas, without
interfering with Postal Service’s primary service involves “judgment as to which range of
permissible courses is the wisest.” Gaubert, 499 U.S. at 325. Allocation of resources while
providing prompt, reliable and efficient services, are decisions “susceptible to policy
analysis,” and are the kind of decisions that the discretionary function exception was
designed to shield.
CONCLUSION
“If one of the exceptions [of the FTCA] applies, the bar of sovereign immunity
applies.” Dolan, 546 U.S. at 485. The plaintiff’s claims are barred by sovereign immunity
because the alleged negligent conduct falls within the discretionary function exception to the
FTCA. Accordingly, the court concludes that it lacks subject matter jurisdiction and this case
must be dismissed with prejudice.
A separate final judgment will be entered.
Done this 2nd day of July, 2012.

/s/Charles S. Coody
CHARLES S. COODY
UNITED STATES MAGISTRATE JUDGE

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