Stephenson v. United States of America

Filing 32

MEMORANDUM OPINION AND ORDER granting defendant's 21 MOTION to Dismiss the Complaint with prejudice. Plaintiff's 25 MOTION for Extension of Time to File a Response to Defendant's Motion to Dismiss is also GRANTED. Signed by Senior Judge David A. Faber on 11/28/2017. (cc: counsel of record) (arb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
AMANDA GAIL STEPHENSON,
Plaintiff,
v.

CIVIL ACTION NO. 1:16-11979

UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is defendant’s motion to dismiss
for lack of subject matter jurisdiction.

ECF No. 21.1

This

court does not have subject matter jurisdiction over plaintiff’s
claims because each falls within the discretionary function
exception to the Federal Tort Claims Act.

Therefore,

defendant’s motion is GRANTED and the court DISMISSES
plaintiff’s action with prejudice.
I.

FACTUAL BACKGROUND

On February 17, 2014, Ms. Stephenson went to the Post
Office to mail a package.

See Complaint.

That day was

Presidents’ Day, a federal holiday, and all retail windows were
closed.

See id.

At this Post Office, the public is permitted

access to post office boxes twenty-four hours a day, every day,
including federal holidays.

1

Id.

Plaintiff’s Motion for Extension of Time to File a Response to
Defendant’s Motion to Dismiss is also GRANTED. See ECF No. 25.

Plaintiff parked her car in the Post Office’s parking lot,
removed her package from the car, and walked down the sidewalk
running parallel to the Post Office.
owned by the Post Office.

See id.

This sidewalk was

When she reached the corner of the

building, she turned toward the main entrance of the Post Office
and fell on ice.

See id.

Plaintiff claims that snow had been

removed from the sidewalk and placed in a pile between the
sidewalk and the building.

See id.

Plaintiff states that water

from the melted snow must have run across the sidewalk and
frozen as temperatures dropped so that “wide path of ice”
crossed the sidewalk.

Id.

This buildup of ice caused plaintiff

to slip and fall onto the concrete sidewalk.

Id.

Plaintiff contends that defendant negligently failed to
keep the sidewalk “clear and free of ice,” and that defendant
should have “prevented snow from melting and running across the
sidewalk or, in the alternative, to have placed salt or ice melt
. . . on the area of the sidewalk . . . so that this plaintiff
and members of the public would not be unreasonably exposed to
the danger of falling.”

Id.

According to plaintiff,

defendant’s negligence directly and proximately resulted in her
physical and emotional injuries.

See id.

Plaintiff seeks

$6,801.37 in medical expenses, $10,000.00 in lost income, and
$20,000.00 in pain and suffering.
2

See id.

Plaintiff has exhausted her administrative remedies
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §
1346 et seq., and her complaint was timely filed.

Plaintiff

filed her administrative claim on January 29, 2016, before the
statute of limitations expired.
denied on August 18, 2016.

The administrative claim was

Plaintiff filed her Complaint with

this court on December 8, 2016.

ECF No. 1.

On July 7, 2017, the United States filed its Motion to
Dismiss and accompanying memorandum, ECF Nos. 21-22.2

The United

States contends that the discretionary function exception to the
FTCA bars plaintiff’s suit because plaintiff does not identify
any mandatory directives regarding 1) giving patrons twenty-four
hour access to the post office boxes, 2) snow removal, and 3)
providing for re-inspection and cleaning.

See ECF 22.

Therefore, the United States asks the court to dismiss this case
for lack of subject matter jurisdiction.
II.

STANDARD OF REVIEW

A motion to dismiss pursuant to Rule 12(b)(1) asks whether
a court has the ability to hear and adjudicate the claims
brought before it.

Federal courts are courts of limited

2

Defendant also requested a stay of discovery proceedings
until adjudication of this motion, ECF No. 26, which this court
granted. See ECF No. 30.
3

jurisdiction and can act only in those specific instances
authorized by Congress.

Bowman v. White, 388 F.2d 756, 760 (4th

Cir. 1968).
The plaintiff bears the burden of proving the existence of
subject matter jurisdiction.

Evans v. B.F. Perkins Co., 166

F.3d 642, 647 (4th Cir. 1999).

Further, a party who brings an

action against the United States pursuant to the FTCA “bears the
burden of pointing to . . . an unequivocal waiver of immunity.”
Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995)
(quoting Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)).
The court notes that its analysis of defendant’s motion is
not limited to the evidence presented by the parties in their
pleadings.

When considering a motion to dismiss under Rule

12(b)(1), “the court may consider the evidence beyond the scope
of the pleadings to resolve factual disputes concerning
jurisdiction.”

Williams, 50 F.3d at 304 (citing 2A James W.

Moore, Moore’s Federal Practice ¶ 12.07 at 12-49-12-50 (2d ed.
1994)); see also S.R.P. v. United States, 676 F.3d 329, 332 (3d.
Cir. 2012) (“Because the Government’s motion presented a factual
challenge to subject matter jurisdiction, the District Court was
not confined to the allegations in [plaintiff’s] complaint, and
was entitled to independently evaluate the evidence to resolve
disputes over jurisdictional facts.”)(internal citations
4

omitted).
III. APPLICABLE LAW
Fundamentally, federal courts do not have jurisdiction over
actions against the United States unless Congress has expressly
waived the United States’ sovereign immunity.

United States v.

Sherwood, 312 U.S. 584, 586 (1941); Dalehite v. United States,
346 U.S. 15, 30 (1953) (“[N]o action lies against the United
States unless the legislature has authorized it.”).

The FTCA,

however, provides a limited waiver of the United States’
sovereign immunity in actions arising from personal injuries
caused by government employees acting within the scope of their
employment.

See 28 U.S.C. § 1346(b), § 2671, et seq.

Under

these circumstances, “the Government will accept liability in
the same manner and to the same extent as a private individual
would have under like circumstances.”

Strand v. United States,

233 F. Supp. 3d 446, 455 (D. Md. 2017) (citing Wood v. United
States, 845 F.3d 123, 132 (4th Cir. 2017)).

Nevertheless,

numerous exceptions prohibit complainants from recovery under
the FTCA, most prominently the “discretionary function”
exception.
As “a form of retained sovereign immunity,” In re World
Trade Ctr. Disaster Site Litig., 521 F.3d 169, 190 (2d Cir.
2008), the “discretionary function” exception “marks the
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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’”

Berkovitz v. United States, 486 U.S. 531, 536

(1988) (internal quotations and citations omitted).

The

exception “assure[s] protection for the Government against tort
liability for errors in administration or in the exercise of
discretionary functions.”

Dalehite, 346 U.S. at 26—27 (citation

omitted).
Under the discretionary function exception, the waiver of
sovereign immunity does not apply 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).

The Supreme Court has established a two-

step analysis to ascertain whether the “discretionary function”
exception is appropriate in a given case.
Gaubert, 499 U.S. 315, 322 (1991).

See United States v.

First, a court must

determine whether the governmental action at issue “involves an
element of judgment or choice.”

Berkovitz, 486 U.S. at 536.

If

the action is “the subject of any mandatory federal statute,
regulation, or policy prescribing a specific course of action,”
then the governmental actor must adhere to the directive and the
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action does not involve an element of choice.

Baum v. United

States, 986 F.2d 716, 720 (4th Cir. 1993); see also U.S.
Aviation Underwriters, Inc. v. United States, 562 F.3d 1297,
1299 (11th Cir. 2009) (“A function is non-discretionary if a
federal statute, regulation,

or policy specifically prescribes

a course of action for an employee to follow where the employee
has no rightful option but to adhere to the directive.”).

If

there is a mandatory directive on point, the plaintiff must show
that the governmental actor failed to adhere to this standard.
Id. (citing Berkovitz, 486 U.S. at 530).
However, if no mandatory directive exists, the court
proceeds to the second prong, where a court must decide whether
the challenged action is one “based on public policy
considerations.”

Berkovitz, 486 U.S. at 531.

In this analysis,

a court focuses on “the nature of the actions taken and on
whether they are susceptible to policy analysis,” rather than
“the agent’s subjective intent in exercising the discretion.”
United States v. Gaubert, 499 U.S. at 324-25; Wood, 845 F.3d at
128 (“This second step . . . prohibit[s] courts from second
guessing decisions grounded in social, economic, and political
policy through the medium of an action in tort.”) (internal
quotations and citations omitted).

Thus, the absence of a

mandatory directive creates a presumption that the discretionary
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function applies.

Gaubert, 499 U.S. at 323 (construing

decisions “based on . . . public policy” broadly to include
decisions based on “social, economic, and political policy.”).
Said another way, “[d]etermining 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)(citations omitted).
“Plaintiffs bear the burden of proving that the
discretionary function exemption does not apply.”

Indemnity

Ins. Co. of North America v. United States, 569 F.3d 175, 180
(4th Cir. 2009).

Additionally, the FTCA is strictly construed

with ambiguities resolved in favor of the United States.

See

United States v. Nordic Village, Inc., 503 U.S. 30, 33–34
(1992).
IV.

DISCUSSION

A. First Prong: Judgment and Choice are Involved
The court must first determine whether “a federal statute,
regulation, or policy specifically prescribe[d] a course of
action for” the Post Office, “its employee[s],” or agents “to
follow.”

Berkovitz, 486 U.S. at 536.
8

The plaintiff concedes

that it is within the Postmaster’s discretion whether or not to
leave the Post Office open to allow people to access their post
office boxes after regular hours.3

Instead, plaintiff argues

that the United States Postal Service’s (“USPS”) Supervisor’s

3

Indeed, the discretion of having around-the-clock lobby hours
is explicitly committed to the Post Office. Concerning retail
hours, the Postal Operations Manual (“POM”) states:
The availability of retail services and
lobby hours should reflect time periods that
most appropriately meet the needs of the
majority of customers in the local area.
Stations and branches are not required to be
open at the same scheduled hours as the main
office. Stations and branches can adjust
retail service hours to meet the needs of
the local community. Units in suburban
communities and/or large shopping centers
may provide late evening service for
customer convenience if approved by the
district manager and area office.
POM § 126.41 (emphasis added).
POM states:

Moreover, as to lobby hours, the

At a minimum, customers must have access to
their PO Boxes during all retail service
hours of operation. Separate PO Box lobbies
should remain open when someone is on duty
in the postal unit. At the postmaster’s
discretion, lobbies may remain open 24 hours
a day to allow customer access to PO Boxes
and self-service equipment, provided that
customer safety and security provisions are
deemed adequate by the Inspection service [a
security organization that protects Post
Offices].
POM § 126.43 (emphasis added).
9

Safety Handbook EL-801 (“EL-801”) mandates the Postmaster’s duty
to remove snow and ice and provide for re-inspection and
cleaning by stating:
You must establish snow and ice removal
plans where necessary. Pay particular
attention to areas where customers and other
pedestrians may slip and fall, and where
vehicle maneuvering can be hazardous. Keep
snow and ice away from utility and fire
protection.
Provide for re[-]inspection and cleaning as
often as necessary to handle drift snow and
refreezing. Encourage employees to help
provide safe walking and driving surfaces on
Postal Service premises by reporting icy and
otherwise dangerous spots. Consult your
local Postal service environment coordinator
for guidance on the purchase and use of ice
melting products.
Handbook EL-801, § 8-15.2 (emphases added).

The court does not

perceive any mandatory directive from EL-801.

In stark

contrast, the Handbook specifically grants discretion as to snow
removal “where necessary” and provides for re-inspection and
cleaning “where necessary.”

Id.

It fails to mandate specific

hours of operation or snow removal procedures on federal
holidays.
Accordingly, the Post Office’s decisions concerning the
snow removal and re-inspection and cleaning constitute official
judgment and choice, “falling within the overarching policies of

10

a regulatory scheme that [gives the Postmaster] discretion in
how to implement that policy.”

Wood, 845 F.3d at 131.

Since “no such mandatory statute, regulation or policy
applies to remove the challenged conduct from the choice and
judgment of the government, then [this court must] move to the
second tier of the Berkovitz-Gaubert analysis.”

Baum, 986 F.2d

at 720.
B. Second Prong: Social, Economic and Public Policy
Considerations
Under the second prong, the court must determine whether
the Post Office’s choice is premised “on considerations of
public policy.”

Baum, 986 F.2d at 720 (citations and internal

quotation marks omitted).

The court “presume[s] that the [Post

Office’s] acts are grounded in policy when exercising that
discretion . . . [because] [t]he focus of the inquiry is not on
the agent’s subjective intent in exercising the discretion
conferred by statute or regulation, but on the nature of the
actions taken and on whether they are susceptible to policy
analysis.”

Gaubert, 499 U.S. at 324—25 (footnote omitted).

In

light of Gaubert, this court refuses to decipher the actor’s
“subjective intent,” and instead focuses “on the nature of the
actions taken and on whether they are susceptible to policy
analysis.”

Id. at 324—25 (footnote omitted and emphasis added).
11

If there is any conceivable policy basis upon which the choice
can be justified, then the court should so justify and proceed
to immunize the actor.

Id. at 324.

Moreover, the court must

make every presumption that the Post Office’s choice is
“grounded in policy when [it is] exercising [its] discretion.”
Id.
The court can hypothesize a number of rational public
policy reasons for the Postmaster’s decisions regarding snow
removal on holidays, some of which include: convenience to the
public, safety of federal property for visitors, budgetary
concerns regarding paying snow-removal staff, and paying
employees to staff the Post Office on federal holidays or during
hours which would otherwise experience minimal postal-patron
traffic.

Moreover, plaintiff does not even attempt to overcome

the presumption that [the Postmaster’s] judgment is of the kind
that the discretionary function exception was designed to
shield.”

Aviation Underwriters, 562 F.3d at 1299 (quotation

marks omitted).
Since the Post Office’s choice is founded upon
considerations of public policy, Baum, 986 F.2d at 720; Gaubert,
499 U.S. at 324—25, the second-prong is satisfied by the United
States.

12

Consequently, plaintiff’s claims are barred under the
FTCA’s discretionary function exception.
V.

CONCLUSION

For the reasons stated, the court GRANTS the defendant's
Motion to Dismiss the Complaint with prejudice. The court
DIRECTS the Clerk to send a copy of this Memorandum Opinion and
Order to counsel of record.
IT IS SO ORDERED this 28th day of November, 2017.
ENTER:

David A. Faber
Senior United States District Judge

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