Fagg v. The United States of America et al

Filing 26

OPINION AND ORDER that Defendants' Motion to Dismiss the First Amended Complaint [Doc. No. 5 ] is hereby GRANTED. Signed by Judge Clarence Cooper on 9/10/2015. (tcc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
:
:
:
Plaintiff,
: CIVIL ACTION
:
v.
: NO. 1:14-CV-3539-CC
THE UNITED STATES OF AMERICA, :
:
KEITH FIXEL, GEORGE FRAZIER,
:
LYNETTE WILLIAMS, THOMAS
:
NOYES, and SATINA PYRON,
:
:
Defendants.
:
TROY FAGG,

OPINION AND ORDER
This matter is presently before the Court on Defendants’ Motion to Dismiss
the First Amended Complaint [Doc. No. 5] (the “Motion”), and for the reasons
stated herein, Defendant’s Motion is hereby GRANTED.
I.

BACKGROUND
Plaintiff filed his First Amended Complaint [Doc. No. 3] (the “Complaint”)

on January 13, 2015, asserting several tort claims against the United States brought
pursuant to the Federal Tort Claims Act (the “FTCA”) , codified at 28 U.S.C. §§
1346(b), 2401(b), 2402, 2671-2680.

Plaintiff’s Complaint alleges that on

December 20, 2013, he was working as a truck driver for Davosa Transport

Service Trucking Company, a company contracted by the Postal Service to
transport U.S. Mail. See Amended Complaint at ¶ VI.3.A. Plaintiff alleges that he
arrived at the Conley Post Office to retrieve mail and load it into his truck, and that
as he went to load his truck, he was confronted by two assailants who shot Plaintiff
during the course of the robbery of Plaintiff’s truck. Id. at ¶¶ VI.3-5. Plaintiff
alleges he suffered extensive injuries as a result. Id. at ¶¶ VI.5-VII.4.
Plaintiff additionally alleges that two previous robberies occurred at the
Conley Post Office in December 2011 and January 2012, and that these robberies
put the Postal Service on notice of a dangerous condition or likelihood of future
robberies at the Conley Post Office. Id. at ¶¶ X.2-4. Plaintiff alleges as a result of
the prior armed robberies, the Defendant enacted a new policy which required the
Postal Service to provide armed guards to accompany the mail transporters at the
Conley Post Office. Id. at ¶¶ IX.2-3, X.6-7. Plaintiff alleges that for a period of
“several weeks,” the Postal Service scheduled armed police to accompany drivers
at the Conley Post Office, but that without warning the Postal Service halted this
practice and determined it was too costly. Id. Plaintiff concludes that the Postal
Service was negligent in enforcing their own regulation to provide armed guards to
keep the Conley Post Office premises safe by failing to provide adequate security,

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including failing to station an armed postal inspector at the post office. Id. at ¶¶
XI.1, XI.5.
Defendants’ Motion seeks dismissal of Plaintiff’s claim for lack of subject
matter jurisdiction under Rule 12(b)(1). Fed. R. Civ. P. 12(b)(1). In particular,
Defendants assert that Plaintiff’s claims fall within the discretionary function
exception to the FTCA, 28 U.S.C. § 2680(a), and are therefore barred by sovereign
immunity.1
II.

STANDARD OF REVIEW
A court may exercise jurisdiction only when specifically authorized to do so,

and must dismiss an action when it becomes apparent that subject matter
jurisdiction is lacking. Fed. R. Civ. P. 12(h) (3). Plaintiff maintains the burden of
showing that subject matter jurisdiction exists.

“Federal courts are courts of

limited jurisdiction. They possess only that power authorized by Constitution and
statute, which is not to be expanded by judicial decree. It is to be presumed that a
cause lies outside this limited jurisdiction, and the burden of establishing the
opposite rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life

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Plaintiff’s Complaint also alleged FTCA claims against several individuals.
Defendants moved to dismiss those claims because the FTCA does not allow suits
against individual employees or agencies of the United States. See 28 U.S.C.
§2679(a), (b) (1). Plaintiff did not oppose this portion of Defendants’ Motion.

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Ins. Co., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994).
In evaluating a motion to dismiss, allegations in a complaint are deemed
true, and the inferences they support are construed in favor of the non-movant.
Ortega v. Christian, 85 F.3d 1521, 1524-25 (11th Cir. 1996). However, where the
discretionary function exception defense is asserted, the focus is on whether the
government conduct involves judgment of the kind that the discretionary function
excepts from judicial intervention.
Our concern under the discretionary function exception is not whether
the allegations of negligence are true; instead, our concern is whether
the nature of the conduct involves judgment or choice and whether
that judgment is of the kind that the exception was designed to
protect.
Hughes v. United States, 110 F.3d 765, 767 n.1 (11th Cir. 1997). Therefore, the
nature of the government conduct that is being challenged, as well as the discretion
and judgment attendant to that government conduct, not just the allegations of the
Complaint, must be examined.
III.

ANALYSIS
Having carefully reviewed Plaintiff’s Complaint and the briefs related to

Defendants’ Motion, and heard oral arguments from the parties, this Court lacks
subject matter jurisdiction over Plaintiff’s claims based on the four corners of

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Plaintiff’s Complaint.
It is well settled that “the United States, as sovereign, is immune from suit
save as it consents to be sued …, and the terms of its consent to be sued in any
court define that court’s jurisdiction to entertain suit.” United States v. Mitchell,
445 U.S. 535, 538, 445 U.S. 535, 100 S. Ct. 1349 (1980) (quotation omitted). The
waiver of sovereign immunity cannot be implied, it must be unequivocally
expressed. Id.
The FTCA provides a limited waiver of sovereign immunity to federal
courts’ subject matter jurisdiction over certain common law tort actions against the
United States. One express limitation contained within the FTCA is the
discretionary function exception, 28 U.S.C. § 2680(a). “Through the § 2680
exceptions, Congress has taken steps to protect the Government from liability that
would seriously handicap efficient government operations.” Molzof v. United
States, 502 U.S. 301, 309, 112 S. Ct. 711, 116 L. Ed. 2d 731 (1992) (quoting
United States v. Muniz, 374 U.S. 150, 163, 83 S. Ct. 1850, 10 L. Ed. 2d 805
(1963)).
The Court applies a two-part test to determine whether the discretionary
function exception precludes a plaintiff’s claim brought pursuant to the FTCA.

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Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 100 L. Ed. 2d 531
(1988); see also Cohen v. United States, 151 F.3d 1338, 1341 (11th Cir. 1998).
First, the Court must determine whether the challenged conduct involves an
element of judgment or choice. Second, the Court must determine whether that
judgment is of the kind that the discretionary function exception was designed to
shield. Hughes, 110 F.3d at 767.
Applying this two-part test to the facts alleged by Plaintiff, the Court finds
that both elements of the test are met and that the discretionary function exception
applies. Under the first part of the test, the “relevant inquiry is whether the
controlling statute or regulation mandates that a government agent perform his or
her function in a specific manner.” Powers v. United States, 996 F.2d 1121, 1125
(11th Cir. 1993). “Only if a federal statute, regulation, or policy specifically
prescribes a course of action embodying a fixed or readily ascertainable standard,
will a government employee's conduct not fall within the discretionary function
exception.” Hughes, 110 F.3d at 768.

Where “there are no such statutes,

regulations, or policies present here, the first part of the discretionary function test
is satisfied.” Id. Plaintiff has failed to allege the existence of such a federal statute,
regulation, or policy.

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The challenged conduct at issue is the series of decisions made by the Postal
Service regarding what level of security to provide at the Conley Post Office, and
as particularly alleged by Plaintiff, whether to “adhere to the Postal Service
mandate of providing armed personnel to accompany the mail transporters while
delivering mail at the Conley Post Office.” While Plaintiff argues that the Postal
Service had established a fixed “policy” of stationing armed guards at the Conley
Post Office and had no discretion to fail to adhere to this regulation, the Court
agrees with Defendants that Plaintiff only alleges a temporary practice of
providing armed guards for several weeks, a practice which the Postal Service
chose to discontinue due to resource allocation. This does not show a “federal
statute, regulation, or policy [that] specifically prescribes a course of action
embodying a fixed or readily ascertainable standard.” Hughes, 110 F.3d at 768.
Instead, the facts alleged show the exercise of day-to-day management or
operational duties which require the use of choice or judgment and thus constitute
discretionary acts. See Gaubert, 499 U.S. at 323.

Under the second part of the test, the Court must decide whether the
judgment afforded postal employees regarding security measures is the type of
judgment that the discretionary function exception was designed to shield.

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Plaintiff argues that the decision to forego, for fiscal reasons, the routine security
measures already implemented at the planning level is not the kind of policy
decision protected by the discretionary function exception. Here, the focus is on
whether the challenged actions are “susceptible to policy analysis.” Powers, 996
F.2d at 1125 (quotation omitted).

Protected “[d]iscretionary conduct is not

confined to the policy or planning level.” United States v. Gaubert, 499 U.S. 315,
325, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991). “Day-to-day management ...
regularly requires judgment as to which of a range of permissible courses is the
wisest.” Id. In this case, Plaintiff alleges that the decision to discontinue the
provision of armed guards at the Conley Post Office was not the kind of policy
decision protected by the discretionary function exception and was not a policy
decision of the nature and quality that Congress intended to shield from tort
liability under the second prong of the discretionary function exception. As the
Eleventh Circuit held in Hughes, in the context of post office security, such
decisions are precisely the type of policy determinations covered by the
discretionary function exception:
Decisions involving security at post offices are a fundamental part of
the economic and social policy analysis required to achieve [the Postal
Service’s statutory] goals…. Postal employees must decide how to
allocate resources so as to best serve customers in a prompt, reliable,

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and efficient manner. While financial considerations alone may not
make a decision one involving policy, such considerations are
particularly relevant to the Postal Service….We will not second guess
the Postal Service's resource allocation decisions here.
110 F.3d at 768-69.
Decisions by the Postal Service regarding security at post offices fall within
the discretionary function exception of the FTCA, and the Court lacks subject
matter jurisdiction over Plaintiff’s action.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss the First

Amended Complaint [Doc. No. 5] is hereby GRANTED.
SO ORDERED this 10th day of September, 2015.
s/ CLARENCE COOPER
HONORABLE CLARENCE COOPER
SENIOR UNITED STATES DISTRICT JUDGE
Prepared by:
/s/ GABRIEL A. MENDEL
Gabriel A. Mendel
Assistant U.S. Attorney
600 United States Courthouse
75 Spring Street, S.W.
Atlanta, Georgia 30303
Voice: [phone]
Facsimile: [phone]
Attorney for Defendants

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Reviewed by:
/s/ FELICIA P. ROWE
Felicia P. Rowe
Rowe & Rowe LLC
4500 Hugh Howell Road
Suite 570
Tucker, GA 30084
[phone] phone
[phone] fax
Attorney for Plaintiff

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