Parrish v. United States of America
Filing
23
ORDER granting in part and denying in part 19 Motion to Dismiss for Lack of Jurisdiction - Plaintiff may pursue her claim inasmuch as she alleges a negligent failure to inspect the premises and warn of potential dangers. The parties are DIRECTED to confer and file with the court within 21 days of this order a proposed case schedule for proceeding to trial. Signed by District Judge Louise Wood Flanagan on 1/5/2016. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-794-FL
KATIE PARRISH,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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ORDER
This matter is before the court on defendant’s motion to dismiss the case for lack of subject
matter jurisdiction, made pursuant to Federal Rule of Civil Procedure 12(b)(1). The issues raised
have been briefed fully and in this posture are ripe for ruling. For the reasons given below,
defendant’s motion is granted in part and denied in part.
STATEMENT OF THE CASE
Plaintiff initiated this action by complaint filed November 14, 2013. Plaintiff alleges that
she fell on a negligently maintained sidewalk at a United States Post Office and asserts a single
count of negligence under North Carolina law, pursuant to the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 1346(b)(1) & § 2671 et seq. Specifically, plaintiff alleges defendant negligently failed
to repair the damaged sidewalk, negligently inspected the premises, and negligently failed to warn
patrons of the potentially dangerous condition. In addition, plaintiff contends that defendant’s active
negligence contributed to the dangerous condition that caused her fall.
After a period of discovery, defendant filed a first motion to dismiss for lack of subject
matter jurisdiction, or in the alternative motion for summary judgment. By order entered July 27,
2015, the court granted in part and denied in part defendant’s motion. In particular, the court held
that it lacked jurisdiction over plaintiff’s negligence claim attacking defendant’s failure to repair the
damaged sidewalk because defendant had engaged an independent contractor to maintain the
premises. In addition, the court held that defendant was entitled to summary judgment on plaintiff’s
negligence claim to the extent that claim was grounded in defendant’s creation of the dangerous
condition that caused her fall, as plaintiff failed to adduce any evidence of defendant’s involvement.
However, the court’s order left undisturbed plaintiff’s claim inasmuch as it related to three specific
failings: failure to inspect the premises, failure to contact the contractor and demand necessary
repairs based on that inspection, and failure to post warning signs after that inspection.
On August 14, 2015, defendant filed the instant motion to dismiss for lack of subject matter
jurisdiction. In its motion, defendant argues that the court lacks jurisdiction under the so-called
“discretionary function exception” to the FTCA. 28 U.S.C. § 2680(a). In particular, defendant
contends that its decision to engage a third-party contractor, a recognized discretionary function,
divests the court of jurisdiction as to the remaining grounds supporting plaintiff’s claim. In
response, plaintiff contends that, under the specific facts of this case, defendant’s agreement with
its third-party contractor was not broad enough to preclude liability for defendant’s alleged failures,
and that, in addition, defendant’s failure to inspect the premises, demand its contractor undertake
repairs, and warn of potential dangers, are not themselves discretionary functions.
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STATEMENT OF FACTS
Defendant, through the United States Postal Service (the “Postal Service”), operates a Post
Office location in Selma, North Carolina. (See Lease Agreement, DE 14-1, 1).1 Defendant does not
own the building in which the Post Office is located. (See id.). Rather, defendant rents the space.
(Id. passim).
On February 21, 2011, plaintiff visited the Selma Post Office. (Compl., DE 1, ¶8). During
that visit, plaintiff tripped on an uneven portion of the sidewalk, which connected the parking lot to
the Postal facility. (Id. ¶¶10–12). As a result of her fall, plaintiff suffered a significant injury to her
left hand. (Id. ¶¶12–13). Plaintiff alleges that her injury was caused by a lack of warning, or a
failure to initiate repair, and that had the Postal Service’s agents or employees properly inspected
the premises and subsequently demanded repairs by the contractor, or otherwise warned patrons of
the potential hazard posed by the uneven sidewalk, she would not have been injured. (See id.
passim).
COURT’S DISCUSSION
A.
Standard of Review
The discretionary function exception excludes certain discretionary acts from the FTCA’s
broad waiver of sovereign immunity. Where the United States has not waived its sovereign
immunity, the court lacks subject matter jurisdiction. Williams v. United States, 50 F.3d 299, 304
(4th Cir. 1995). A Rule 12(b)(1) motion challenges the court’s subject matter jurisdiction, and the
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The Lease Agreement is attached to and incorporated by reference in the complaint. Thus, the court may
consider its contents without converting the instant motion into one for summary judgment. Philips v. Pitt Cnty. Mem’l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (when no
hearing is held on a Rule 12(b)(1) motion the plaintiff is afforded “the same procedural protections as he would receive
under a Rule 12(b)(6) consideration”).
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plaintiff bears the burden of showing that federal jurisdiction is appropriate when challenged by the
defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion may either 1) assert the complaint fails to state
facts upon which subject matter jurisdiction may be based, or 2) attack the existence of subject
matter jurisdiction in fact, apart from the complaint. Adams, 697 F.2d at 1219. Under the former
assertion, the moving party contends that the complaint “simply fails to allege facts upon which
subject matter jurisdiction can be based.” Id. In that case, “the plaintiff, in effect, is afforded the
same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Id. “[T]he
facts alleged in the complaint are assumed true, and the motion must be denied if the complaint
alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187,
192 (4th Cir. 2009). When the defendant challenges the factual predicate of subject matter
jurisdiction, a court “is to regard the pleadings’ allegations as mere evidence on the issue, and may
consider evidence outside the pleadings without converting the proceeding to one for summary
judgment.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th
Cir. 1991). The nonmoving party “must set forth specific facts beyond the pleadings to show that
a genuine issue of material fact exists.” Id.
B.
Analysis
1.
Legal Principles
The Federal Tort Claims Act authorizes suits against the United States for 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.
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28 U.S.C. § 1346(b). The United States is liable for such tort claims “in the same manner and to the
same extent as a private individual under like circumstances.” § 2674.
The FTCA does not, however, operate as a blanket waiver of sovereign immunity.
“Congress was careful to except from the Act’s broad waiver of immunity several important classes
of tort claims.” United States v. S.A. Empressa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 808 (1984). As relevant here, the FTCA does not apply to
[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.
§ 2680(a). The second clause of § 2680(a) is known as the “discretionary function exception.” It
“marks the boundary between Congress’ willingness to impose tort liability upon the United States
and its desire to protect certain governmental activities from exposure to suit by private individuals.”
Varig Airlines, 467 U.S. at 808.
To determine whether the discretionary function exception bars suit against the United States
the court employs a two-step analysis. Berkovitz v. United States, 486 U.S. 531, 536–37 (1988).
First the court considers “whether the action is a matter of choice.” Id. at 536. Conduct cannot be
discretionary unless it involves some choice or “element of judgment.” Id.; see also Dalehite v.
United States, 346 U.S. 15, 34 (1953). “The requirement of judgment or choice is not satisfied if
a federal statute, regulation, or policy specifically prescribes a course of action for an employee to
follow, because the employee has no rightful option but to adhere to the directive.” United States
v. Gaubert, 499 U.S. 315, 322 (1991) (internal quotations and citations omitted).
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If the conduct involves an element of judgment or choice, the court still must determine
“whether that judgment is of the kind the discretionary function exception was designed to shield.”
Id. at 322–23. The discretionary function exception “prevent[s] judicial ‘second guessing’ of
legislative and administrative decision grounded in social, economic, and political policy through
the medium of an action in tort.” Id. at 323. Thus, social, economic, and political policy choices
are insulated from suit where they are “grounded in” or “within the purview of the policies behind
the [relevant] statutes [or regulations].” Id. at 323, 333.
Analysis of the second prong does not require proof that the agent actually considered policy
in exercising his or her discretion. Rather, the court objectively inquires into “the nature of the
actions taken and . . . whether they are susceptible to policy analysis.” Id. at 325. In addition, the
second prong of the Gaubert analysis encompasses both administrative and planning level decisions,
as well as day-to-day operational decisions. See id. at 323–24. There is no requirement that the
government agent whose actions are challenged have either policy making capacity or be required
to consider the policy implications of a given decision. Cf. id. at 337–38 (Scalia, J., concurring).
Instead, when “established governmental policy, as expressed or implied by statute, regulation, or
agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the
agent’s acts are grounded in policy.” Id. at 323–24 (majority op.). A plaintiff may overcome this
presumption by alleging facts showing that “the challenged actions are not the kind of conduct that
can be said to be grounded in the policy of the regulatory regime.” Id. at 325.
2.
Effect of Hiring a Third-Party Contractor
The government argues that the discretionary function exception insulates it from liability
on all claims related to its duty to inspect and demand repair, as well as its duty to warn, because
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those decisions were embraced by the overarching decision to engage a third-party contractor, which
is itself a discretionary decision. The government’s argument is too broad and, in light of the facts
of this case, inapplicable here. The government failed to delegate its duty to inspect the premises
and, thus, failed to delegate its responsibilities as a landowner.
It is undisputed that the government delegated to its contractor the duty to perform repairs.
However, the decision to engage a contractor for a limited purpose does not implicate the
discretionary function exception so as to insulate the United States from all claims or in every case.
See, e.g., McMellon v. United States, 387 F.3d 329, 348 n.8 (4th Cir. 2004) (en banc) (“We note,
however, that determining whether the facts of a case fit within the scope of the discretionary
function exception itself involves a cautious case-by-case analysis.”); Shansky v. United States, 164
F.3d 688, 692–93 (1st Cir. 1999); Cope v. Scott, 45 F.3d 445, 449 (D.C. Cir. 1995). The central
issue in this case is whether the government also delegated to its contractor the duty to inspect the
premises. If the government’s duty to inspect was delegated to an independent contractor, the
United States is protected from claims arising out of other, collateral failures, such as a “failure to
warn.” See Williams, 50 F.3d at 310; see also United States v. Viault, 609 F. Supp. 2d 518, 528
(E.D.N.C. 2009). In addition, on the facts of this case, if the United States’s duty to inspect was
delegated to an independent contractor then so too was its duty to demand repairs. See Williams,
50 F.3d at 310.
The government did not delegate its duty to inspect. In particular, the Lease Agreement
provides only that the contractor “may” inspect the premises, not must. (Lease Agreement, 7). In
addition, the Lease Agreement does not provide the contractor unfettered access to the premises.
Rather, it requires the contractor give “reasonable notice to the facility manager” before entering
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onto and inspecting the premises. (Id.). Clause 10 of the Lease Agreement’s Maintenance Rider
goes even further, suggesting that the Postal Service affirmatively retained the obligation to inspect.
(See id. at 8). Specifically, that clause provides that if the premises is “damaged or destroyed by fire
or other casualty, Acts of God, of a public enemy, riot or insurrection, vandalism, or . . . otherwise
determined by the Postal Service to be unfit for use and occupancy, or whenever there is a need for
maintenance, repair, or replacement which is the [contractor’s] obligation” that the Postal Service
“will require the [contractor] to rebuild or repair the premises.” (Id.). The use of “determined by
the Postal Service,” as well as “[the Postal Service] will require,” strongly suggests that the Postal
Service retained the duty to inspect the premises. And, thus, the court so holds.
The United States advances a different interpretation of both Williams and Viault, one that
would provide a defense against all claims in all cases where an independent contractor was retained
for some limited purpose. Not only does the government’s suggested reading of those cases lack
support as an impermissible categorical approach to the discretionary function exception, see, e.g.,
McMellon, 387 F.3d at 348 n.8, but also it lacks foundation in the analysis employed by both the
Williams and Viault courts. Both cases rely on the United States’s discretionary decision to delegate
to a third party the duty of inspection and hold that, in light of the discretionary decision to delegate
inspection, the court lacks jurisdiction over the government’s alleged failure to perform various
other duties that necessarily require inspection. In essence, the courts characterized the duty of
inspection as the logical antecedent to the duty to warn; when the government, in its discretion,
delegates its duty to inspect, it cannot be held liable for subsequent actions that necessarily require
an inspection.
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For example, in Williams the court held that the government’s alleged negligent inspection
of a property, and subsequent failure to warn of a potential hazard, was a non-actionable
discretionary function, given that the government had retained a contractor for those purposes. Id.
at 310. The plaintiff sued the United States when, on a particularly rainy day, she slipped in a
puddle that had formed inside the lobby of a building leased by the government. Id. at 302–03. The
plaintiff contended that the government had negligently inspected its property and, as a result of that
negligent inspection, had failed to warn patrons of potential hazards.
As relevant here, the United States asserted the discretionary function exception, arguing that
its decision to engage a third-party contractor insulated it from liability. Id. The government’s
agreement with its contractor obligated the contractor to inspect and monitor all work performed on
the premises, as well as to “take all necessary precautions to prevent injury to the public, building
occupants, or damage to the property of others.” Id. at 302. In addition, the contract imposed
several specific obligations on the contractor, which included a clause requiring it to ensure that the
building’s floors were “slip resistant” on a daily basis. Id. On those facts, the Fourth Circuit held
that it lacked jurisdiction over plaintiff’s claims arising from the government’s alleged negligent
inspection and failure to warn. The court reasoned that the decision to engage a third-party
contractor was discretionary. Id. at 309–10. Extrapolating, the court further reasoned that because
the government had assigned its duty to inspect to its contractor, it could not be held liable for a
negligent inspection and the accompanying failure to warn. Id. at 310.
Similarly, in Viault, 609 F. Supp. 2d 518, the court held that the United States’s discretionary
decision to engage a contractor on terms so comprehensive as to effectively require that contractor
to inspect freight trailers delivered by it to the government divested the court of jurisdiction in a
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failure to warn suit. Id. at 521–22, 528. The plaintiff brought suit after being injured by a fall
through a sizeable hole in the floor of a freight trailer leased to the government by its third-party
contractor, Waste Industries. Id. The plaintiff’s supervisor, a government employee, had inspected
the trailer and located the hole, but failed to provide any warnings about the presence of danger. Id.
On those facts, the court held that the government’s failure to warn was discretionary, in light of the
government’s discretionary decision to engage Waste Industries, citing Williams. Id. at 528–29.
More specifically, the court held that “inspection of the trailer and [a subsequent] failure to post a
warning sign after discovering the hazard, like the allegedly negligent acts in Williams, [we]re
‘embraced by the overarching decision to engage’ Waste Industries.” Id. at 528 (quoting Williams,
50 F.3d at 310).
The Viault case is non-specific about the agreement between the government and Waste
Industries. However, an analysis of the language used in that document will bring to light
distinctions between that case and the instant matter.
As gleaned from the underlying
documentation, the contract between the government and Waste Industries obligated Waste
Industries to provide safe equipment. In particular, Waste Industries was required to intermittently
supply the government with freight trailers that “conform[ed] to the requirements of [the] contract,”
which, among other things, required those trailers be in “good, safe, and operable condition.”
Attachment to Gov’t’s Motion to Dismiss, Viault v. United States, 4:07-CV-41-H (E.D.N.C. June
5, 2008), pp. 8, 30. In addition, the contractor was required to remedy “[u]nsafe conditions and
practices . . . immediately.” Id. at 34. A fair reading of the contract suggests that the government
had entrusted to Waste Industries the burden of inspecting the freight trailers delivered by it on an
as-needed basis. Thus, the government delegated its duty to inspect the trailers, was entitled to rely
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on Waste Industries’s contractual representations as to the safety of the freight trailers it delivered,
and was relieved of the duty to warn.
This case stands in stark contrast to both Williams and Viault. For example, the contract
before this court lacks the comprehensive language necessary to conclude that the Postal Service had
delegated to its contractor the duty to inspect the Post Office. In addition, the contract does not
provide the contractor with unfettered access to the property and, further, suggests that the Postal
Service retained the obligation to inspect. Because the government failed to delegate its duty to
inspect, the court cannot conclude that the discretionary function exception insulates it from liability
solely because it engaged a third-party contractor.
3.
Challenged Actions Individually
Having concluded that the government’s use of an independent contractor does not insulate
it from liability, the court next considers whether the government’s challenged actions, individually,
were “discretionary.” See Gaubert, 499 U.S. at 328–34. The court first considers the duty of
inspection, which must be non-discretionary to support liability under either theory. See Williams
50 F.3d at 310. Because the court holds that inspection was not discretionary in this context, the
court also must consider whether the government’s failure to demand repair and failure to warn were
discretionary.
a.
Inspection
The complaint is unclear as to whether defendant either negligently inspected the premises
or failed to inspect it altogether. However, either theory may be actionable under the circumstances.
See Rich v. United States, __ F.3d __, 2015 WL 9466900, at *5 (4th Cir. 2015). A claim grounded
in defendant’s negligently performed inspection is not discretionary because it fails the second prong
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of the Gaubert test; a negligently performed inspection is not grounded in policy considerations. Id.
at *6 (“[D]iscretionary conduct cannot be grounded in a policy decision when that conduct is marked
by individual carelessness or laziness.”). In addition, under the circumstances of this case, a total
failure to inspect also is not protected by the discretionary function exception. With regard to the
first step of the Gaubert analysis, it is not apparent that the Postal Service may exercise discretion
on the issue of whether or not it inspects the premises. Certainly, the Postal Service may exercise
its discretion in “maintain[ing] buildings, facilities, equipment, and other improvements.” 39 U.S.C.
§ 401(6). However, it is unclear whether the Postal Service properly could maintain its various
facilities without a properly performed inspection of the premises.
Moreover, it is difficult to imagine an social, economic, or political justification for the
Postal Service’s failure to inspect that also is grounded in its statutory purpose. The purpose of the
Postal Service is statutorily defined, and is best summarized as the provision of “prompt, reliable,
and efficient [mail] services.” § 101(a). The decision to not post warning signs does not further this
statutory policy in a social, economic, or political way. Although it could be argued that warning
would divert resources, such as limited personnel, or otherwise have an adverse economic impact
on the Postal Service, such considerations are not “grounded in” its statutorily-established purpose.
At best, those considerations are tangentially related to the effective provision of postal services.
However, “[t]he mere association of a decision with regulatory concerns is not enough” to warrant
immunity. Cope, 45 F.3d at 449; accord Rich, 2015 WL 9466900, at *5 n.7 (noting need for
“limiting principle” in application of the discretionary function exception). To endow a decision
with such an attenuated connection to the Postal Service’s overarching goal with the protected
“discretionary” label “would allow the exception to swallow the FTCA’s sweeping waiver of
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sovereign immunity.” Cope, 45 F.3d at 449; accord United States v. Yellow Cab Co., 340 U.S. 543,
547 (1951) (“The Federal Tort Claims Act waives the Government’s immunity from suit in
sweeping language.”). Accordingly, the court holds that, in this case, the duty to inspect was not
discretionary and the Postal Service’s negligent exercise, or abdication of that duty is not shielded
from liability.
b.
Demand Repair
Because in this case inspection is a non-discretionary duty, the court next must analyze
whether the Postal Service was required to demand its contractor undertake repairs on the premises.
As relevant to the first step, plaintiff rightly concedes that no statute or regulation makes repair of
a Postal premises mandatory.
In fact, the law suggests that the Postal Service may exercise
discretion in how to “maintain [its] buildings . . . [and] facilities.” 39 U.S.C. § 401(6). The law
prescribes no maintenance regimen; rather, it leaves it to the Postal Service to determine the best
method for the upkeep of its various facilities.
Where the statute prescribes no mandatory upkeep requirement, the court next must
determine whether the Postal Service’s failure to demand repair was a “discretionary” decision of
the type protected by the FTCA. It was. The court presumes that the decision not to demand repair
was discretionary because it was “within the purview of the policies behind the statute[].” Gaubert,
499 U.S. at 333. Under the circumstances of this case, the Postal Service’s decision not to demand
its contractor repair the premises is insulated from liability because it implicates statutory policies
that place a premium on access to postal services. For example, the Postal Service’s statutory policy
statement requires “prompt, reliable, and efficient services to patrons in all areas.” 39 U.S.C. §
101(a). In addition, another section of the Postal Service’s statutory policy statement demands it
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“provide a maximum degree of effective and regular [P]ostal services,” even in the face of
unprofitability. 39 U.S.C. § 101(b). Thus, structural changes to the sidewalk leading to the entrance
of the Post Office could have impeded access to the building, affecting the promptness, reliability,
and regularity of postal services. Because the Postal Service’s statutory policies afford access to
its services paramount importance, the decision to defer arguably-necessary repairs to the leased
premises was discretionary. Thus, the court lacks jurisdiction over plaintiff’s claim inasmuch as it
is grounded in a failure to demand repairs.
c.
Duty to Warn
However, the court reaches a different conclusion as to the Postal Service’s alleged failure
to inspect the Post Office premises and warn of potential hazards. In light of the statutory and
regulatory purpose of the United States Postal Service, the court holds that the Postal Service’s
failure to warn patrons of potential tripping hazards, in this case, was not susceptible to policy
analysis, and thus is not insulated from liability by the discretionary function exception. On the facts
of this case, the court cannot conclude that the exercise of the duty to warn was discretionary,
because warning does not implicate any social, economic, or political policy.
Again, the Postal Service may exercise its discretion to “maintain buildings, facilities,
equipment, and other improvements.” 39 U.S.C. § 401(6). However, there is no explicit obligation
to warn patrons of potential hazards. Nevertheless, even though the absence of a mandatory statute
suggests that the Postal Service may exercise discretion in complying with the duty to warn, that
discretion is not the type protected by the discretionary function exception; it finds no basis in the
larger set of statutory policies to be achieved by the Postal Service. To the limited extent a failure
to warn is an “economic” consideration, that characterization is of little effect. In this context, the
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economic cost of warning bears too attenuated a connection to the Postal Service’s central goal of
effective mail delivery to be considered “grounded in” that policy. See Gaubert, 499 U.S. at 325;
Rich, 2015 WL 9466900, at *5 n.7 (noting need for “limiting principle” in application of
discretionary function exception; stating “[t]here is always some level of discretion regarding the
performance of even the most specific of mandates”).
Numerous cases have suggested that the duty to warn is discretionary. At this juncture, a
brief discussion of the facts and circumstances separating those several cases from this one is
appropriate. See, e.g., McMellon, 387 F.3d at 348 n.8. Cases holding the duty to warn to be
discretionary roughly may be divided into two groups: cases where the decision to warn is
discretionary in light of the particular agency’s statutory purpose, see generally, e.g., Minns v.
United States, 155 F.3d 445 (4th Cir. 1998), and cases where the decision to warn was discretionary
in light of an immediate hazard. See generally, e.g., Smith v. Wash. Area Metro. Transit Auth., 290
F.3d 201 (4th Cir. 2002); Williams, 50 F.3d 299. In the first category, the government’s failure to
warn is rendered discretionary by competing considerations imposed by the agency’s statutory
mandate. For example, in Minns the Fourth Circuit held that the United States Army’s failure to
warn of adverse side-effects of a certain drug administered to soldiers deployed in the 1991 Persian
Gulf War was discretionary. 155 F.3d at 447, 452. In particular, the court held that “[t]he decision
whether to warn about the [adverse] effects . . . implicated other military decisions such as whether
to risk alerting the enemy about war preparations and whether to give a warning that might be
harmful to cohesion, particularly when the decision had already been made to use the drugs.” Id.
at 452.
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Minns is not an aberration. Similar government decisions routinely are found to be
discretionary. See, e.g., Maas v. United States, 94 F.3d 291, 297 (7th Cir. 1996); In re Consolidated
U.S. Atmospheric Testing Litig., 820 F.2d 982, 997–98 (9th Cir. 1987); In re Agent Orange, 818
F.2d 194, 200–01 (2d Cir. 1987). In Atmospheric Testing, a variety of plaintiffs sued the United
States for failure to warn of harmful health effects caused by nuclear testing carried out by the
Atomic Energy Commission and its contractors in conjunction with the Joint Chiefs of Staff. 820
F.2d at 984–86. The court held that the discretionary function exception barred those claims based
on the government’s failure to warn. In particular, the court noted that in deciding not to warn the
government necessarily “t[ook] into account sensitive questions concerning [a warning’s] impact
on on-going and future tests and on the military and civilian participants.” Id. at 997. Thus, similar
to Minns, the court considered the government’s failure to warn in light of the purposes of the
nuclear program.
Other cases, outside the national security arena, also illustrate that a failure to warn usually
is discretionary only where it bears some relationship to the agency’s overall purpose. See
generally, e.g., S.R.P. ex rel Abunabba v. United States, 676 F.3d 329 (3d Cir. 2012); Cope, 45 F.3d
445; Lesoeur v. United States, 21 F.3d 965 (9th Cir. 1994); Kiehn v. United States, 984 F.2d 1100
(10th Cir. 1993). In S.R.P, Lesoeur, and Kiehn the courts held that the National Park Service’s
failure to warn about a specific hazard was discretionary in light of the agency’s purpose. See
S.R.P., 676 F.3d at 336–37 (decision not to warn of specific hazard “susceptible to policy analysis”
because it implicated economic policy, as well as the “risk of numbing . . . visitors to all warnings”;
also the “determination [wa]s directly related to the NPS’s mission of preserving national parks”);
Lesoeur, 21 F.3d at 969–70 (failure to warn tribal river tour was not regulated bound up in National
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Park Service’s “decision not to regulate the Tribe’s tours in the first place”; implicated tribal
relations); Kiehn, 984 F.2d at 1103–04 (decision not to warn was grounded in the National Park
Service’s “overall policy” of “carefully using signs so as to minimize their intrusion upon the area’s
natural and historic setting.”). In each case, the court observed that the need for a warning could
have been balanced against competing considerations, such as preservation of the park.
By contrast, in Cope v. Scott, the Court of Appeals for the District of Columbia Circuit held
that the National Park Service could be liable for inadequate warning when it failed to post
sufficiently numerous and specific signs warning of slippery road conditions along a rural road in
the District of Columbia. Although the road, Beach Drive, officially was located in a national park,
it was used primarily for commuter travel. In holding that the duty to warn was non-discretionary,
the court observed that frequently the National Park Service’s failure to warn properly would be
characterized as discretionary because such decisions required “difficult policy judgments balancing
the preservation of the environment against the blight of excess signs.” Cope, 45 F.3d at 452.
However, on the circumstances of the case, the court reasoned that the Park Service’s “failure to
warn” was not discretionary because the Park Service did not maintain the road for the purpose of
environmental preservation. Id. Specifically, the court observed that “Beach Drive is not the Grand
Canyon’s Rim Drive, nor Shenandoah’s Skyline Drive. Here, the Park Service has chosen to
manage the road in a manner more amendable to commuting through nature than communing with
it.” Id. Thus, because the National Park Service maintained the road in question for a purpose
outside the scope of its statutory and regulatory mission, its failure to warn was not insulated from
suit on the basis of “discretion.”
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This case is more in line with Cope than Minns or S.R.P. In particular, the Postal Service’s
failure to warn, while not at odds with its statutory mission, does not further its goals. The decision
to warn of potential hazards at the premises in issue did not further the Postal Service’s goals of
efficient distribution of letters and other mail to the masses. Rather, it was a routine administrative
matter divorced from public policy considerations. To allow the government to characterize the
mundane act of warning as “discretionary” would run roughshod over the need for a “limiting
principle” guiding application of the discretionary function exception. See Rich, 2015 WL 9466900,
at *5 n.7.
In any event, the Postal Service’s decision to provide no warning also was not discretionary
under the second group of cases, those holding warning to be discretionary in light of an immediate
hazard. Two cases from the Fourth Circuit address this matter directly. First, in Smith v.
Washington Metro, the court found that the Washington Metro Authority was under no obligation
to warn passengers that several of its escalators were inoperable. In that case, the plaintiffs’ son died
after suffering a heart attack, which occurred after he walked up an escalator that had been converted
into a “stationary walker,” or, in other words, stopped. Smith, 290 F.3d at 203–04. Although the
Metro station at which he died had three escalators, the Metro Authority had decided to stop the
escalator in question because the other two escalators suddenly had become inoperable. Id. In
holding that the discretionary function exception absolved the Metro Authority of liability for a
failure to warn, the Fourth Circuit reasoned that the failure occurred in conjunction with an
“emergency situation.” Id. at 210.
Similarly, in Williams the court held that, notwithstanding its earlier conclusion that the
government’s discretionary use of an independent contractor insulated its decision not to warn, the
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United States’s failure to warn still was discretionary under the facts of that case. 50 F.3d at
310–11. In Williams, the plaintiff slipped on a puddle of water that had accumulated in the lobby
of a building leased by the United States Department of Justice. Id. at 301–02. The dangerous
condition had come about quickly, as a result of “torrential rains” on the day of the accident. Id. at
303.
Taken together, Smith and Williams stand for the proposition in response to an immediate
hazard the United States may exercise its discretion in warning of the hazard, or not warning of it.
See also Rosebush v. United States, 119 F.3d 438, 443 (6th Cir. 1997) (“Decisions concerning the
proper response to hazards are protected from tort liability by the discretionary function exception.”)
(collecting cases). dDecember 31, 2015Allowing the United States the discretion to warn about a
quick-occurring hazard is both sensible and comports with Gaubert’s requirement that discretionary
decisions be “grounded” in the regulatory regime. In particular, when faced with an immediate
hazard the United States should be afforded the discretion to either warn or focus its resources on
abating the hazardous condition. However, this case does not concern such a quick-forming hazard.
The dangers present at the Selma Post Office location had been long standing. (See Compl. ¶¶9–12).
Where dangers are long standing, the policy justifications supporting the government’s exercise of
discretion in responding to a hazard dissipate, if not disappear altogether.
In sum, the United States is not entitled to discretionary immunity on all possible grounds
supporting plaintiff’s claim. The government’s decision to retain a contractor on a limited basis
does not afford the United States carte blanche to ignore the duties imposed on landowners by
common law. In addition, the government’s failure to inspect the property and warn of potential
hazards also is not discretionary in light of the United States Postal Service’s statutory policies.
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Nevertheless, application of the discretionary function exception is multifaceted and a change in
circumstances may require a different perspective. In particular, nothing in this court’s holding
should be read as precluding the government from making a motion to dismiss this case for lack of
subject matter jurisdiction at trial on the basis that the hazard in question was “open and obvious.”
See Smith, 290 F.3d at 210 (“The METRO is entitled to be accorded immunity from a negligence
claim in this situation, because, . . . [any] duty to warn of this open and obvious hazard is
discretionary and exempt from an action in tort.”) (citations and internal quotations omitted).
CONCLUSION
Based on the foregoing, the United States’s motion to dismiss for lack of subject matter
jurisdiction, made pursuant to 28 U.S.C. § 2680(a) and Federal Rule of Civil Procedure 12(b)(1),
is GRANTED in PART and DENIED in PART. Plaintiff may pursue her claim inasmuch as she
alleges a negligent failure to inspect the premises and warn of potential dangers. The parties are
DIRECTED to confer and file with the court within 21 days of this order a proposed case schedule
for proceeding to trial.
SO ORDERED, this the 5th day of January, 2016.
_____________________________
LOUISE W. FLANAGAN
United States District Judge
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