McNally v. United States of America et al

Filing 55

ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss 44 is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by The Hon. Paul A. Magnuson on 05/29/2018. (LLM)

Yes.UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Shawn McNally,

Civ. No. 16-4084 (PAM/KMM)
Plaintiff,

v.

MEMORANDUM AND ORDER

United States of America,
Defendant.

This matter is before the Court on Defendant’s Motion to Dismiss or, in the
alternative, for Summary Judgment. For the following reasons, the Motion is granted.
BACKGROUND
On Monday, January 20, 2014, Plaintiff Shawn McNally stopped by the Post
Office in St. Francis, Minnesota, apparently not realizing that it was closed for
observance of the Martin Luther King, Jr., holiday. (Marentette Decl. (Docket No. 46)
Ex. A (McNally Dep.) at 18-21.) As she approached the front door, she slipped on ice
and fell, hitting the back of her head on the sidewalk. (Id. at 24.) She lost consciousness
and she claims to have suffered a traumatic brain injury and an aneurism as a result of her
fall.
After exhausting her administrative remedies, she brought this lawsuit for
negligence under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346 et seq. The
Government now moves to dismiss, claiming that the Court lacks subject-matter
jurisdiction over McNally’s claims.

In the alternative, the Government argues that

summary judgment is appropriate because there was no breach of a duty and McNally’s
negligence claim therefore fails.
DISCUSSION
The FTCA operates to waive the federal government’s sovereign immunity for
certain tort claims. This waiver, however, is not absolute, and as relevant here, is subject
to a discretionary function exception. 28 U.S.C. § 2680(a).
To determine whether the exception applies, the Court first examines whether the
suit concerns “acts that involve an element of judgment or choice”; in other words, “acts
that are discretionary in nature.” Compart’s Boar Store, Inc. v. United States, 829 F.3d
600, 604 (8th Cir. 2016) (quotation omitted). The Court must then determine “whether
the government acted or based its decision on considerations of public policy.” Id.
(quotation omitted).
Determining whether the discretionary function exception applies is not a
fact-intensive exercise, as the court will only look to the nature of the
challenged decision in an objective, or general sense, and ask whether that
decision is one which we would expect inherently to be grounded in
considerations of policy.
Chang-Williams v. Dep’t of the Navy, 766 F. Supp. 2d 604, 617 (D. Md. 2011).
McNally bears the burden to establish that the discretionary function exception does not
apply.
The Government argues that the Postmaster’s duty to clear the walks on federal
holidays is a quintessential discretionary function. The Postal Service’s Supervisor’s
Safety Handbook provides that the Postmaster “must establish snow and ice removal
plans where necessary” and “[p]rovide for reinspection and cleaning as often as
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necessary.” (Marentette Decl. (Docket No. 46) Ex. F (Handbook EL-801, Supervisor’s
Safety Handbook) § 8-15.2.) According to the Government, these policies vest the
Postmaster with substantial discretion regarding snow and ice removal, especially when
the post office is closed. The St. Francis Postmaster testified that he had a snow removal
plan that provides for a contractor to clear the parking lot and walks, and for the
Postmaster or other employees to check the sidewalks throughout the day and shovel or
apply deicer if necessary. (Id. Ex. C (Wolfgram Dep.) at 35, 37, 39.) The contractor
clears the lot and walks whether the post office is open or closed, but the Postmaster does
not remove snow or ice from the walks or require other employees to do so on days the
post office is closed. (Id. at 57, 63.)
McNally argues that the discretionary function exception does not apply because
the St. Francis Postmaster has a non-discretionary duty to establish a policy regarding
snow and ice removal. She contends that no such policy existed at the St. Francis post
office. But her contention is belied by the Postmaster’s testimony. The Postmaster’s
snow-removal policy was that the walkways would not be cleared on federal holidays,
and McNally points to no authority that a post office must clear its sidewalks on days it is
closed. The decision regarding holiday shoveling is within the Postmaster’s discretion
for purposes of the first step of the discretionary-function analysis.
And the Postmaster’s decision regarding holiday snow removal is certainly
“susceptible to policy analysis” for purposes of the second discretionary-function test.
United States v. Gaubert, 499 U.S. 315, 325 (1991). The Court must “presume[] that the
[Post Office’s] acts are grounded in policy when exercising [its] discretion.” Id. at 324.
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The St. Francis Postmaster must balance the small staff, his budget, and other
considerations when determining whether to remove snow and ice on federal holidays.
See Stephenson v. United States, No. 1:16cv11979, 2017 WL 5760451, at *5 (S.D. W.
Va. Nov. 28, 2017) (determining that there are “a number of rational public policy
reasons for the Postmaster’s decisions regarding snow removal on holidays”). Thus, the
Postmaster’s snow-removal decision is policy-based and is immune from challenge on
that basis.
McNally’s claims are barred by the discretionary function exception to the FTCA.
The Court therefore lacks subject-matter jurisdiction over this matter and it must be
dismissed. Having determined that there is no jurisdiction, the Court need not address the
Government’s alternative argument regarding the substantive merits of McNally’s
negligence claim.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss
(Docket No. 44) is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: May 29, 2018

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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