Pornomo v. United States of America, No. 3:2014cv00307 - Document 20 (E.D. Va. 2014)

Court Description: MEMORANDUM OPINION. Signed by District Judge James R. Spencer on 10/20/2014. (tjoh, )

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Pornomo v. United States of America Doc. 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION J ONATAN PORNOMO, Plaintiff, v. Civil Action No. 3:14 CV 30 7 UNITED STATES OF AMERICA, Defendant. MEMORAN D U M OPIN ION THIS MATTER is before the Court on Defendant s Motion to Dism iss Plaintiff s Am ended Com plaint (ECF No. 14) ( Motion ) pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff J onatan Pornom o ( Plaintiff ) opposes this Motion. For the reasons below, the Court hereby GRANTS the Motion. I. FACTU AL AN D PROCED U RAL BACKGROU N D A. Procedural Posture This case arises out of a m otor coach bus accident that occurred on May 31, 20 11. On April 28, 20 14, Plaintiff, the adm inistrator of the estate of Sie Giok Giang, filed a com plaint in this Court against Defendant, pursuant to the Federal Tort Claim s Act ( FTCA ), for a wrongful death allegedly caused by the negligence of the Federal Motor Carrier Safety Adm inistration ( FMCSA ), an agency within the United States Departm ent of Transportation ( DOT ). See ECF No. 1. In his com plaint, Plaintiff essentially alleges that FMCSA was negligent in allowing Sky Express Inc. ( Sky Express ) to operate at the tim e of its accident in violation of federal law. ECF No. 1. On August 21, 20 14, Defendant filed the instant Motion along with an accom panying Mem orandum in Support, alleging that this Court lacks subject m atter jurisdiction over Plaintiff s wrongful death action because Plaintiff cannot establish that Defendant waived 1 Dockets.Justia.com sovereign im m unity. ECF Nos. 14, 15. Defendant argues that the discretionary function exception to the FTCA, 28 U.S.C. § 2680 (a), m andates that this action be dism issed for lack of subject m atter jurisdiction, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Alternatively, Defendant argues that the Court lacks subject m atter jurisdiction over the instant action because Plaintiff s com plaint fails to satisfy the FTCA s private liability analogue requirem ent. See 28 U.S.C. §§ 2674, 1346(b). Subsequently, on Septem ber 4, 20 14, Plaintiff filed his opposition to the Motion and Defendant, in turn, filed its reply on Septem ber 10 , 20 14. This m atter is now ripe for review. B. Statutory and Regulatory Background Congress has directed the Secretary of Transportation to determ ine whether an owner or operator is fit to operate safely com m ercial m otor vehicles, utilizing am ong other things ... [the] safety inspection record of such owner or operator. 49 U.S.C. § 31144(a)(1); see also Defendant s Mem orandum of Law in Support of Defendant s Motion to Dism iss Plaintiff s am ended com plaint ( Def. s Mem . ) at 2. To fulfill Congress directive, the Secretary m ust m aintain by regulation a procedure for determ ining the safety fitness of an owner or operator. 49 U.S.C. § 31144(b); see also id. § 31136. With regard to the transportation of hazardous m aterials, Congress has declared that an owner or operator who the Secretary determ ines is not fit m ay not operate in interstate com m erce beginning on the 46th day after the date of such fitness determ ination and until the Secretary determ ines that such owner or operator is fit. Id. § 31144(c)(3); see also id. § 31144(c)(5). The Secretary s authority to regulate the procedures of such fitness determ inations has been delegated to FMCSA. See 49 U.S.C. § 113(f); 49 C.F.R. § 1.87(f). The Secretary has prom ulgated regulations establishing standards and procedures for evaluating the safety and fitness of com m ercial m otor vehicle owners and operators. FMCSA has established a fitness determ ination procedure as directed by Congress. See 49 C.F.R. Pt. 385. Under this regulatory fram ework, a m otor carrier is either unrated or is 2 assigned one of three possible safety ratings: satisfactory, conditional, or unsatisfactory. See id. § 385.3; Def. s Mem . at 3. A m otor carrier receives a satisfactory safety rating if it has in place adequate safety m anagem ent controls to m eet the safety fitness standard prescribed in § 385.5.1 Id. A m otor carrier is assigned a conditional safety rating if it does not have adequate safety m anagem ent controls in place to ensure com pliance with the safety fitness standard that could result in violation of safety regulations. Id. § 385.3. An unsatisfactory safety rating m eans that the carrier does not have adequate safety m anagem ent controls in place to ensure com pliance with the safety fitness standard and that, as a result, violation of the safety regulations has occurred. Id. The factors considered in determ ining a carrier s safety rating include inform ation collected during on-site exam ination[s] of m otor carrier operations, which are term ed com pliance reviews. 2 Id. §§ 385.3, 385.7. During a com pliance review, FMCSA evaluates the m otor carrier s com pliance with the Federal Motor Carrier Safety Regulations 3 and Hazardous Materials Regulations.4 See id. Pt. 385, App. B § (d); Def. s Mem . at 3. Specifically, based on the inform ation collected from the com pliance review, FMCSA assigns the carrier a proposed safety rating based on any regulatory violations found. Id. § 385.9(a); see §§ 385.5, 385.7, & 385.9(a) (explaining that the agency issues the m otor carrier a rating after considering the adequacy of the m otor carrier s safety m anagem ent controls, frequency and severity of safety violations, and other safety-related factors). Pursuant to FMCSA s safety ratings procedures, a hazardous m aterials carrier that receives an unsatisfactory safety rating is prohibited from operating a com m ercial m otor 1 All citations are to Title 49 of the Code of Federal Regulations unless otherwise noted. Specifically, the FMCSA conducts on-site com pliance reviews of whether a carrier or operator m eets safety standards pertaining to m atters such as drivers hours of service, vehicle m aintenance and inspection, and license requirem ents. 49 C.F.R. § 385.3; see also Defendant s Mem orandum of Law in Support of Defendant s Motion to Dism iss Plaintiff s Am ended Com plaint ( Def. s Mem . ) at 2. 3 See 49 C.F.R. parts 350 399. 4 See 49 C.F.R. parts 171 180 . 2 3 vehicle in interstate or intrastate com m erce beginning on the 46th day after the date of the safety fitness determ ination. Id. § 385.13(a)(1); see also 49 U.S.C. § 31144(c)(3); Def. s Mem . at 3. FMCSA m ay also revoke the operating registration of a m otor carrier rated unsatisfactory. 49 C.F.R. § 385.13(e). A proposed overall unsatisfactory safety rating is provisional and does not becom e final until 45 days after the carrier receives written notice of the proposed rating. Id. § 385.11(c)(1); Def. s Mem . at 4. Pursuant to 49 C.F.R. § 385.15, a carrier m ay seek adm inistrative review of a proposed or final safety rating within 90 days of its issuance. Id. §§ 385.15(a), (c)(2). Carriers assigned an unsatisfactory rating, however, are encouraged to file such requests within 15 days to allow the agency to issue a final decision before the prohibition on operating accom panying such a rating takes effect. Id. § 385.15(c)(1). In addition to, or instead of, seeking adm inistrative review under § 385.15, a carrier m ay request an upgrade of its safety rating under § 385.17 based on steps the carrier has taken to correct violations found during the com pliance review. Def. s Mem . at 3. The request m ust include a written description of corrective actions taken, and other docum entation the carrier wishes the FMCSA to consider. Id.; 49 C.F.R. § 385.17(a)(c). Such upgrade requests are separate from petitions for adm inistrative review under § 385.15, and m ay be filed at any tim e, including after the proposed safety rating becom es final and operating authority is revoked. See 49 C.F.R. § 385.17(a). Upon receipt of an upgrade request, the agency m ust determ ine whether the m otor carrier has taken the corrective actions required and [whether] its operations currently m eet the safety standard and factors specified in [49 C.F.R.] §§ 385.5 and 385.7. Id. § 385.17(h), (i); see Def. s Mem . at 3-4. The FMCSA Field Adm inistrator for the designated service center m akes a determ ination on the request for change in safety fitness rating based upon the docum entation the m otor carrier subm its and any additional relevant inform ation. Def. s Mem . at 3 (citing 49 C.F.R. § 385.17(d)). If the agency denies the upgrade request, the carrier m ay seek adm inistrative review of that denial under § 385.15(c)(2). 4 A request for change in safety rating based upon corrective action does not stay the effective date (i.e., the 46th day) of a final safety rating that would require a carrier to cease operations. Def. s Mem . at 4 (citing 49 C.F.R. § 385.17(f)). However, at the tim e of the crash that led to the subject of the instant case, § 38 5.17 (f) read in part, if the m otor carrier has subm itted evidence that corrective actions have been taken . . . and the FMCSA cannot m ake a final determ ination within the 45-day period, the period before the proposed safety rating becom es final m ay be extended for up to 10 days at the discretion of the FMCSA. Id.5 C. Factual Allegations On Tuesday, May 31, 20 11, the decedent, Sie Giok Giang, was a passenger on a Sky Express m otor coach bus, which was travelling north on Interstate 95. Am . Com pl. ¶ 7. As a private m otor carrier of interstate transportation, Sky Express was subject to regulation by FMCSA. Id. ¶¶ 12-13. Around 4:45 a.m ., in Caroline County, Virginia, the Sky Express bus driver fell asleep while the bus was going approxim ately 65 m iles per hour. Id. ¶ 11. As a result, the bus drifted from its lane onto a sloped, grass em bankm ent, struck a guard wire, and then flipped and rolled before com ing to a rest. Id. Sie Giok Giang died as a result of injuries she sustained in the accident on May 31, 20 11. Id. ¶¶ 9-10 . On April 7, 20 11, along with other review dates not directly relevant in the instant m atter, FMCSA conducted a com pliance review of Sky Express operations. Am . Com pl. ¶ 22. After the review, FMCSA determ ined that Sky Express did not have adequate safety m anagem ent controls in place to ensure com pliance with FMCSA s safety fitness standards. Def. s Mem . at 4. Five days later, on April 12, 20 11, FMCSA sent Sky Express an official notice stating that the proposed unsatisfactory rating would becom e final and Sky Express would be prohibited from operating com m ercial m otor vehicles in 45 days that is, on May 28, 20 11 5 The authority to grant a 10 day extension of the effective date of a proposed Unsatisfactory rating contained in 49. C.F.R. § 385.17(f) existed in 1991 when FMCSA prom ulgated the safety fitness procedures and rating rule. See Defendant s Mem orandum of Law in Support of Defendant s Motion to Dism iss Plaintiff s Am ended Com plaint ( Def. s Mem . ) at 3 n.2. As Defendant notes in its m oving papers, [t]he FMCSA rescinded the 10 -day Agency discretionary period effective Novem ber 23, 20 12. Def. s Mem . at 4 (citing 77 Fed. Reg. 64, 759-0 1 (Oct. 23, 20 12)). 5 unless it took the steps necessary to im prove its rating before that date. Am . Com pl. ¶ 26. The notice also provided how to request a safety rating upgrade under § 385.17 and how to file an adm inistrative appeal under § 385.15. Am . Com pl. ¶ 26. On May 11, 20 11, Sky Express accepted FMCSA s invitation to subm it a written upgrade request, pursuant to § 385. 17, to change the proposed unsatisfactory safety rating. Id. ¶ 27. Sky Express written request detailed procedures and actions Sky Express im plem ented for the purposes of achieving com pliance with FMCSA s regulations. See Def. s Mem . Ex. 1.6 Specifically, Sky Express request described the corrective actions it had taken with respect 49 C.F.R. parts 382, 390 , 391, 392, 395, and 396, which included the deficient areas identified in the notice of proposed Unsatisfactory safety rating. Id. On May 12, 20 11, personnel from the North Carolina Division and Southern Service Center held a conference call to discuss Sky Express action plan and whether the proposed safety rating should be upgraded. Id. As a result of the conference call, FMCSA decided that it needed additional inform ation to verify the corrective action Sky Express described in its plan and whether the com pany had adequate safety m anagem ent controls. Def. s Mem . at 5. FMCSA determ ined that an additional com pliance review would be conducted to collect the necessary inform ation to m ake a final determ ination concerning Sky Express safety rating. Def. s Mem . Ex. 1. Accordingly, on May 12, 20 11, by letter, the North Carolina Division Adm inistrator s office inform ed the FMCSA Field Adm inistrator that: (1) steps had not been taken to adequately correct the violations found during the April 7, 20 11 com pliance review7; (2) it would conduct a 6 In considering Defendant s Rule 12(b)(1) m otion to dism iss, the Court considers evidence outside of the pleadings in conjunction with the instant m otion. Velasco v. Gov t of Indon., 370 F.3d 392, 398 (4th Cir.20 0 4) (stating that, in m otion to dism iss for lack of subject m atter jurisdiction, a court m ay consider evidence outside the pleadings without converting it to a sum m ary judgm ent m otion). 7 Defendant notes in its Mem orandum that the correspondence the North Carolina Division Adm inistrator s office ( DA ) sent to the FMCSA Field Adm inistrator ( FA ) was sim ply a recom m endation concerning Sky Express corrective action plan. Def. s Mem . at 6 n.4. Furtherm ore, Defendant reports that the DA expressed the opinion that corrective action was not sufficient, but he did not state that the FMCSA should issue a final determ ination denying Sky Express a rating upgrade. Id. 6 follow-up com pliance review; and (3) Sky Express would need to subm it specific inform ation, identified in the letter, during the review. Def. s Mem . Ex. 1. On May 13, 20 11, the FMCSA issued two official notices, by two separate letters, to Sky Express. In one of the letters, FMCSA denied Sky Express request for a safety upgrade, holding that Sky Express corrective plan did not include sufficient evidence to justify an upgrade to . . . [Sky Express ] proposed safety rating, and it failed to dem onstrate that adequate corrective actions have been taken to address the violations found during the April 7, 20 11 com pliance review. Id. But the notice went on to state, FMCSA believes that these correctives actions are not sufficient to correct the deficiencies discovered during the com pliance review. Therefore, the North Carolina Division office will be conducting a Com pliance Review prior to J une 7, 20 11, at the principle place of business as listed on the Motor Carrier Identification Report (MCS150 ). During this com pliance review, the attached list of docum ents will need to be available at the principle place of business for Sky Express Inc. for exam ination by [the] agency s safety investigators. (Id.). On the sam e day, May 13, 20 11, FMCSA issued another letter, notifying Sky Express that FMCSA would extend Sky Express 45 day deadline to subm it a sufficient and acceptable corrective action plan by 10 days, thereby extending the carrier s deadline from May 28, 20 11 to J une 7, 20 11.8 Am . Com pl. ¶ 29. According to the Field Adm inistrator for the FMCSA, because of the scope of review and availability of FMCSA personnel, FMCSA determ ined that the review could not be com pleted before May 28 , 20 11, which was the effective date of the proposed Unsatisfactory rating. Accordingly, the period before the proposed Unsatisfactory rating 8 Under the regulation in effect in 20 11, according to the FA, if a m otor coach carrier s written request was insufficient for the Agency to m ake a determ ination concerning whether its proposed rating should be upgraded, the Agency was authorized to grant a 10 -day extension of the period before the proposed rating becam e final. Def. s Mem . Ex. 1. Further, according to the FA, authority for the extension was contained in 49 C.F.R. § 385.17(f), which stated: The filing of a request for change to a proposed or final safety rating under this section does not stay the 45-day period specified in § 385.13(a)(1) for m otor carriers transporting passengers or hazardous m aterials. If the m otor carrier has subm itted evidence that corrective actions have been taken pursuant to this section and the FMCSA cannot m ake a final determ ination within the 45-day period, the period before the proposed safety rating becom es final m ay be extended for up to 10 days at the discretion of the FMCSA. (Id.). 7 becam e effective was extended by 10 days pursuant to the authority granted under 49. C.F.R. § 17(f). Def. s Mem . Ex. 1. According to its letter, FMCSA, upon Sky Express good faith effort, issued a 10 day extension of the effective date of the proposed unsatisfactory rating to provide additional tim e for the North Carolina Division to conduct a follow-up Com pliance Review 9 and for Sky Express to attain full com pliance in all areas in which they were found deficient. Id. On May 23, 20 11, Sky Express subm itted an update, 10 Def. s Mem . at 6, to its May 11, 20 11 corrective action plan via e-m ail with an attachm ent titled, Corrective Update, Def. s Mem . Ex. 1. The 10 day extension, as previously m entioned, m ade the effective date of the proposed unsatisfactory rating J une 7, 20 11. Def. s Mem . at 7. The m otor coach crash involving Sky Express occurred on May 31, 20 11. Id. II. LEGAL STAN D ARD A. Rule 12(b)(1) Federal Rule of Civil Procedure 12 allows for a num ber of defenses to be raised to a com plaint at the pleading stage. Am ong these is the defense that a Court lacks subject m atter jurisdiction over the case. See Fed. R. Civ. P. 12(b)(1). Once subject m atter jurisdiction has been challenged, it is the plaintiff s burden of proving that subject m atter jurisdiction exists. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); see Piney -Run Pres. Ass n Cnty Com rs of Carrol Cnty ., 523 F.3d 453, 459 (4th Cir. 20 0 8). When considering a Rule 12(b)(1) m otion to dism iss, unlike a m otion to dism iss pursuant to Rule 12(b)(6), the district court m ay regard the pleadings as m ere evidence on the issue and m ay consider evidence outside the pleadings without converting the proceeding to one 9 According the FMCSA Field Adm inistrator s declaration attached to Defendant s Mem orandum , FMCSA was unable to m ake a final determ ination concerning Sky Express safety rating before the proposed unsatisfactory rating becam e effective because the com pliance review could not be com pleted before May 28, 20 11. Id. 10 The plain language of the letter reads as follows: You m ay subm it another request for a change to the proposed or final Unsatisfactory safety rating and SMP for reconsideration . . . . Def. s Mem . Ex. 1. 8 for sum m ary judgm ent. Velasco v. Gov t. of Indon., 370 F.3d 392, 398 (4th Cir.20 0 4) (citin g Adam s v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982)). Therefore, this Court m ay weigh the evidence and resolve factual disputes regarding jurisdiction by considering evidence outside the com plaint. W illiam s v. United States, 50 F.3d 299, 30 4 (4th Cir.1995). Even though a Rule 12(b)(1) m otion to dism iss is not converted into a m otion for sum m ary judgm ent, district courts should apply the standard applicable to a m otion for sum m ary judgm ent, under which the nonm oving party m ust set forth specific facts beyond the pleadings to show that a genuine issue of m aterial fact exists. Richm ond, Fredericksburg & Potom ac R.R. Co., 945 F.2d at 768. Only when the m aterial jurisdictional facts are not in dispute and the m oving party is entitled to prevail as a m atter of law should the Court grant the m otion. Id. Additionally, it is well established that the United States, as a sovereign, is im m une from suit except to the extent that it has consented to be sued by statute. See United States v. Dalm , 494 U.S. 596, 60 8 (1990 ); Lehm an v. Nakshian, 453 U.S. 156, 160 (1981); United States v . Mitchell, 445 U.S. 535, 538 (1980 ); W elch v. United States, 40 9 F.3d 646, 650 -51 (4th Cir. 20 0 5). Absent a waiver, sovereign im m unity shields the Federal Governm ent and its agencies from suit. FDIC v. Mey er, 510 U.S. 471 (1994). Therefore, in suits where the federal governm ent is nam ed as a defendant, it is the plaintiff s burden to show that an unequivocal waiver exists. W elch, 40 9 F.3d at 651. III. D ISCU SSION According to Defendant, Plaintiff s wrongful death action is barred by both: (1) the FTCA s discretionary function exception; and (2) the FTCA s private liability analogue requirem ent. Def. s Mem . at 7. The Court finds the discretionary exception dispositive and thus will not address the parties argum ents related to the private liability requirem ent. A. Parties Argum ents Defendant argues that Plaintiff s wrongful death claim is barred, and the Court stripped of subject m atter jurisdiction, by the FTCA s discretionary function exception. Defendant argues 9 that FMCSA s decisions regarding a m otor carrier s com pliance with FMCSA s regulations, including whether a carrier should be perm itted to operate in interstate com m erce, are decisions taken under the Agency s statutory authority under 49 U.S.C. § 31136(a) to prescribe m inim um safety standards for com m ercial m otor vehicles and to determ ine safety fitness under 49 U.S.C. § 31144. Thus, Defendant argues, FMCSA m ade com pliance and safety decisions to which the discretionary function exception of the FTCA applies. Id. at 8. Defendant energetically argues that FMCSA, contrary to Plaintiff s assertion, had the discretion to grant the 10 day extension to facilitate its review and final determ ination. Id. at 8 -9. Defendant avers that the federal regulation in effect at the tim e, 49 C.F.R. § 38 5.17(f), provided that the decision to grant Sky Express a 10 day extension which Plaintiff challenges was expressly vested to the discretion of FMCSA. Section 385.17(f), the federal regulation at issue, provides, If the m otor carrier has subm itted evidence that corrective actions have been taken pursuant to this section and the FMCSA cannot m ake a final determ ination within the forty-five day period, the period before the proposed safety ratin g becom es final m ay be extended for up to ten days at the discretion of the FMCSA. (Def. s Mem . at 9). Defendant contends that, based on the plain language of the then-existing federal regulation, there can be no dispute that the decision m ade was a discretionary one. Id. Accordingly, because the discretionary function exception applies, there has been no waiver of sovereign im m unity. Id. Additionally, reasserting that the discretion ary function exception applies, Defendant argues that Plaintiff s attem pt to avoid the discretionary function exception and establish jurisdiction fails for two reasons. First, the Court is forbidden by the Hobbs Act, 28 U.S.C. § 2342(3)(A), from considering Plaintiff s request to find 49 C.F.R. § 385.17(f), as it existed in 20 11, invalid on the basis that it was prom ulgated in excess of the Agency s statutory authority given to FMCSA under 49 U.S.C. § 31136(a). Def. s Mem . at 10 -11. Second, Defendant argues that there is no legitim ate dispute that both conditions set forth in 49 C.F.R. 385.17(f) were satisfied and, therefore, the regulation expressly granted the FMCSA the discretion to issue a 10 10 day extension of the period before Sky Express proposed safety rating becam e final. Id. at 1114. In sum , Plaintiff argues that the Court has subject m atter jurisdiction in the instant case under the FTCA because FMCSA was not perform ing discretionary functions or duties when their negligent acts and/ or om issions proxim ately caused the death of the decedent. Pl. s Opp n at 7. Instead, Plaintiff argues that FMCSA was violating m andatory, non-discretionary requirem ents of a federal statute [49 U.S.C. §§ 31144(c)(2)-(3),(c)(5)] and a federal regulation [49 C.F.R. 385.17(f) as it existed in 20 11]. Id. Plaintiff essentially raises two argum ents in its am ended com plaint as to why he believes that the discretionary function exception should not apply and subject m atter jurisdiction should exist. First, Plaintiff argues that FMCSA lacked legal authority or discretion to extend the 45 day period under 49 U.S.C. § 31144, thereby violating that federal statute. Am . Com pl. ¶ 33-34; Pl s Opp n 10 -11. He argues that 49 C.F.R. § 385.17(f) is contrary to 49 U.S.C.§§ 31144 and requests the Court to find the regulation, as it existed in 20 11, invalid and im properly prom ulgated in excess of the Agency s statutory authority.11 Pl. s Opp n 11-13. Alternatively, Plaintiff argues that FMCSA violated federal regulations because it did not com ply with clear and m andatory standards of conduct established in the requirem ents of 49 11 Specifically, Plaintiff argues that, per the governing statutes, 49 U.S.C. § 31144(c)(2) and (c)(5), the Secretary of the USDOT, and his delegated agent, the FMCSA . . . are not authorized or perm itted by these governing statutes to extend an interstate passenger m otor carrier s fortyfive day deadline to subm it a written corrective action plan to address safety deficiencies, and to the contrary, the FMCSA is required by these statutes to prohibit such an interstate carrier from resum ing interstate transportation operations unless and until the carrier has dem onstrated to the FMCSA that the carrier is fit and its safety operations and practices are satisfactory. (Am . Com pl. ¶ 33). In his opposition, Plaintiff confirm s that she is attacking the validity of 49 C.F.R. § 385.17(f), as it existed in 20 11, before proceeding to her alternative argum ent. Pl. s Opp n at 13 ( Assum ing that the U.S. Departm ent of Transportation and its agent, the FMCSA, had the legal authority to prom ulgate . . . 49 C.F.R. 385.17(f), even though the version of this regulation in effect at the tim e directly conflicted with the requirem ents of the applicable federal statute, 49 U.S.C Sec. 31144(c)(3) and (c)(5). . . . ) 11 C.F.R. § 385.17(f). Am . Com pl. ¶ 36-38; Pl. s Opp n 9-12. Because it issued an extension to Sky Express before Sky Express com plied with the two conditions for obtaining an extension, Plaintiff argues that FMCSA negligently caused the death of Plaintiff s decedent by allowing the m otor carrier to operate at the tim e of the accident in violation of federal law. Id. Plaintiff asserts, specifically, that FMCSA did not com ply with the regulation s prescribed, nondiscretionary course of action because: (1) Sky Express had not subm itted evidence that corrective actions had been im plem ented ; and (2) the FMCSA had m ade a final determ ination to deny the request within 45 days. Pl. s Opp n at 13-14. Concerning the regulation s first condition precedent, Plaintiff argues that FMCSA s May 13, 20 11 written notification denying Sky Express request to upgrade the proposed unsatisfactory safety rating unequivocally states that Sky Express failed to subm it evidence of corrective actions to rem edy its safety violations. See Pl. s Opp n at 12. Plaintiff notes that the letter expressly states that Sky Express failed to dem onstrate that adequate corrective actions have been taken to address the acute and/ or critical violations cited during the [April 7, 20 11] com pliance review. Id. at 12-13. Plaintiff argues that because the letter clearly concludes that Sky Express failed to provide sufficient evidence that the violations cited in the com pliance review have been corrected, Sky Express had not m et the first regulatory prerequisite for extending the 45 day deadline, when the carrier s proposed unsatisfactory safety rating would becom e final and its operating authority would be revoked. Id. at 13. Also, Plaintiff argues that FMCSA failed to com ply with the second m andatory directive in the 49 C.F.R. 385.17(f). In sum , Plaintiff argues that the May 13, 20 11 notification letter constituted a final determ ination on the m otor carrier s request for change to its safety rating. To support its position, Plaintiff points to the letter s language that reads, in relevant part, that the FMCSA is denying [Sky Express ] request. Id. at 14. Because the May 13, 20 11 letter inform s Sky Express, Inc. that the FMCSA has considered the bus carrier s written request for change to its Unsatisfactory safety rating, along with the carrier s [corrective action plan] and other relevant evidence, and has decided to deny the carrier s 12 request Plaintiff subm its that a final determ ination had been m ade and thus, the second condition precedent of the regulation was not triggered. Id. at 13-14. As such, the negligent acts and om issions of Defendant s officials, supervisors, em ployees, etc. do not fall within the discretionary function exception to the FTCA s wavier of tort liability of the federal governm ent, and the United States is not im m une from liability to Plaintiff. In reply, regarding whether the FMCSA was negligent because it did not com ply with the condition precedents of 49 C.F.R. § 385.17(f), Defendant scrutinizes the plain language of the relevant docum ents, which Plaintiff analyzed, to arrive at the factual conclusion that that there was sufficient corrective evidence subm itted by Sky Express and there was not a final order determ ined by FMCSA. Since the two condition precedents of the regulation were satisfied, Defendant argues, FMCSA had discretion to grant a 10 day extension. B. Analy sis Whether the Court has jurisdiction to adjudicate this case turns on an analysis of the scope of the discretionary function exception. The exception provides that the United States is not liable for any claim based upon the exercise or perform ance or the failure to perform a discretionary function or duty on the part of a federal agency or an em ployee of the Governm ent, whether or not the discretion involved be abused. 28 U.S.C. § 2680 (a). The Suprem e Court has attem pted to define the contours of the discretionary function exception in a series of cases, from Dalehite v. United States, 346 U.S. 15 (1953) and United States v. Varig Airlines, 467 U.S. 797 (1984), to Berkovitz v. United States, 486 U.S. 531 (1988) and, m ost recently, United States v. Gaubert, 499 U.S. 315 (1991). These contours, however, rem ain ill-defined, prim arily because courts have encountered som e difficulty in applying [the discretionary function exception's] rather general term s to the m yriad of fact patterns that predictably present them selves as litigants attem pt to m easure governm ental conduct by the m easuring stick of state tort law. Baum v. United States, 986 F.2d 716, 719 20 (4th Cir.1993). 13 An act or om ission m ust pass a two-part test before it qualifies as discretionary. An act is discretionary if it involves choice or judgm ent . . . there is nothing in that description that refers exclusively to policym aking or planning functions. Gaubert, 499 U.S. at 325. According to the fram ework established in Berkovitz and articulated in Gaubert, the act or om ission m ust: (1) not violate a pertinent statute, regulation, or policy that prescribes a specific course of action and (2) be of the kind that the discretionary function exception was designed to shield. Id. at 322-23 (quoting Berkovitz, 486 U.S. at 536). It m ust be based on considerations of public policy. Gaubert, 499 U.S. at 322. If a governm ent agent is granted discretion, despite the fact that the discretion involves m ere im plem entation of policy or planning decisions m ade by higher-level officials, there is a strong presum ption that the discretion granted to the agent involves considerations of the sam e policies that led to the prom ulgation of the regulation and, in turn, there is a strong presum ption that the discretionary function exception applies. Id. at 324. Furtherm ore, it is sufficient is the actions taken are grounded in policies of the regulatory regim e. Id. at 323. Application of the discretionary function exception is highly fact-specific. Varig Airlines, 467 U.S. at 813. The precise issue presented by the facts of this case is whether FMCSA s decision regarding a m otor carrier s com pliance with FMCSA s regulations, including whether a carrier should be perm itted to operate in interstate com m erce, are com pliance and safety decisions to which the discretionary function exception of the FTCA applies. In answering this question, the Court will first consider whether the 49 C.F.R. § 385.17(f), the federal regulation in effect at the tim e of the crash, granted FMCSA discretion. The Court will then turn to the question of whether FMCSA s decision to grant Sky Express a 10 day extension was grounded in policy. The first part of the inquiry is not difficult. An exam ination of the plain language of the regulation confirm s that the decision Plaintiff challenges was expressly vested to the discretion of the FMCSA. 49 C.F.R. § 385.17(f). FMCSA m ust exercise a considerable degree of choice and 14 judgm ent when determ ining whether to perm it a carrier to operate in interstate com m erce. The regulation provides criteria to guide the exercise of FMCSA s discretion by providing that two conditions m ust be present in order for FMCSA to grant a carrier an extension. But they are not detailed. Regarding the first condition precedent, FMCSA m ust apply their expertise to determ ine what is and what is not evidence of corrective action. Id. Here, FMCSA received a detailed, written corrective action plan from Sky Express but determ in ed, using its judgm ent, that it needed m ore inform ation to verify the contents of the action plan. See Def. s Mem . at 3. The regulation does not prescribe against such a determ ination nor does it offer any specific direction as to what FMCSA m ust do thereafter. Regarding the second condition, FMCSA determ ined it was unable to m ake a final determ ination concerning Sky Express operating authority registration and therefore granted the extension to provide additional tim e to conduct a follow-up com pliance review. Id. In considering a carrier s request for upgrade, and hence whether a carrier s operating authority registration should be revoked, FMCSA was authorized to consider any additional relevant inform ation, 49 C.F.R. § 385.17(d), which would include inform ation collected during a supplem ental com pliance review. It is not as if FMCSA was required to apply a safety check list to guide their action, in which case, there would be no discretion in the process. Even where regulations spell out specific safety requirem ents, the process m ay not be specific and thus m ay provide the necessary elem ent of discretion. Additionally, even if FMCSA s decision to issue the extension was m ade in error or was a poor decision, the decision was still a discretionary decision. For exam ple, where Coast Guard inspectors failed to uncover the fact that a ship failed to install handrails on a stairwell, as specifically required by regulation, the Seventh Circuit ruled that the discretionary function exception nonetheless applied because [t]he discretionary function exception shields the entire inspection process including alleged negligent om issions. If the discretionary function exception could be pierced by showing negligent acts in im plem enting the discretionary function, the exception would be no shield at all. Estate of Bernaldes v. U.S., 877 F. Supp. 30 1, 30 6 (1995) 15 (quoting Cassens v. St. Louis River Cruise Lines, Inc., 44 F.3d 50 8, 515 (7th Cir.1995)). The FMCSA exercised discretion both in determ ining whether a carrier m ay operate in interstate com m erce and in form ulating how best to undertake the com pliance review process. The regulation governing the decision to afford Sky Express a 10 day extension granted FMCSA discretion within the m eaning of the discretion ary function exception. Therefore, the Court turns to the second elem ent of the test that is, whether FMCSA s discretionary action was grounded in the policy of the regulatory regim e. In exam ining the second prong of the test, the Court m ust keep in m ind that the purpose of the discretionary function exception is to prevent judicial second-guessing of legislative and adm inistrative decisions grounded in social, econom ic and political policy through the m edium of an action in tort. Berkovitz, 486 U.S. at 536 37. The Court is concerned not only with second-guessing policy decisions of federal agencies and agents, but also with disrupting the regulatory efforts of the federal governm ent by baring the governm ent to tort liability for negligence in the course of carrying out the policies of a regulatory regim e. See Baum , 986 F.2d at 720 (finding that the discretionary function exception s purpose is to protect the governm ent from being hobbled in the discharge of its policy-driven duties by tort suits ). Once a court concludes that a governm ent agent exercises discretion, if that discretion is exercised in the course of carrying out the agent's policy-driven duties, then the discretionary function exception will cover the agent's actions. Id. at 721. The wide scope of this aspect of the exception is illustrated by the Suprem e Court's exam ple of the type of activity that would not be considered policy-based: There are obviously discretionary acts perform ed by a Governm ent agent that are within the scope of his em ploym ent but not within the discretionary function exception because these acts cannot be said to be based on the purposes that the regulatory regim e seeks to accom plish. Gaubert, 499 U.S. at 325 n.7. Clearly, FMCSA s decision to grant the extension to facilitate its review and final determ ination was based on the purposes that the regulatory regim e seeks to accom plish and 16 was within the purview of the policies behind th e statute granting FMCSA authority to regulate interstate com m ercial vehicle transportation and to prom ote safety. Id. Because FMCSA m ade a discretionary decision involving safety and policy considerations, FMCSA perform ed a discretionary function. Thus, the discretionary function exception does apply and the case m ust be dism issed for lack of subject m atter jurisdiction because there has been no waiver of sovereign im m unity. IV. CON CLU SION For the aforem entioned reasons, the Court GRANTS Defendant s Motion. ECF No. 14. The Court finds it unnecessary to address Defendant s alternative argum ent that Virginia law would not im pose a duty on a private individual carrying out conduct undertaken by the governm ent. Let the Clerk send a copy of this Mem orandum Opinion to all counsel of record. An appropriate Order shall issue. ENTERED this 20 th _____________________/s/________________ James R. Spencer Senior U. S. District Judge day of October 20 14. 17

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