Pornomo v. United States, No. 14-2391 (4th Cir. 2016)Annotate this Case
Sie Giok Giang, a passenger on a Sky Express interstate, was killed when the driver fell asleep at the wheel and ran the bus off the side of a highway. About seven weeks before the crash, Sky Express had been given an “unsatisfactory” safety rating by the FMCSA. At issue is whether the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680, bars an FTCA claim against the FMCSA for allowing Sky Express to continue to operate during a 10 day extension. The district court concluded that, pursuant to that exception, it lacked subject matter jurisdiction and dismissed the case. The court concluded that, considering that any waiver of sovereign immunity must be strictly construed, the FMCSA’s decision to promulgate a regulation permitting 10-day extensions for passenger carriers was a permissible exercise of judgment subject to the FTCA’s discretionary function exception and thus did not waive sovereign immunity. Therefore, the district court correctly dismissed the case for lack of subject matter jurisdiction, and the court affirmed the judgment.