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Decided: February 25, 2016

The Fourth Circuit concluded that the district court correctly dismissed the case for lack of subject matter jurisdiction, therefore affirming the judgment of the district court.

Petitioner, Jonathan Pornomo filed a wrongful death claim under the Federal Tort Claims Act (“FTCA”) after his mother was killed on May 31, 2011, when a bus driver fell asleep at the wheel and allowed the bus to go off the road and into an embankment.  The accident occurred during a 10-day extension period that the bus company had been given after receiving an “unsatisfactory” safety rating by the Federal Motor Carrier Safety Administration (“FMCSA”) approximately seven weeks prior to the incident.  Based on the law at the time of the accident, a commercial motor carrier who received an “unsatisfactory” rating did not have to cease operation immediately, but instead received a 45-day provisional period—in which they could request an upgrade of its rating by submitting a written description to FMCSA of corrective actions taken—before the rating becomes final.  In 2011, the regulation also provided that “if the motor carrier has submitted evidence that corrective actions have been taken…and the FMCSA cannot make a final determination with the 45-day period, the period before the proposed safety rating becomes final may be extended for up to 10 days at the discretion of the FMCSA.” 49 C.F.R.  § 385.17(f) (2011).

On May 11, the bus company submitted a Request for Change to Proposed Safety Rating.  The following day the FMCSA concluded that the bus company had failed to provide adequate evidence that it had corrected all of the safety violations.  As a result, the FMCSA decided to conduct a follow up compliance review, whereby they would provide additional time—10 days—to conduct the follow-up compliance review.  The Petitioner alleged that FMCSA had been negligent in issuing the 10-day extension.  Arguing that the 10-day extension was a discretionary act shielded from suit under the discretionary function exception to the FTCA, the United States filed a motion to dismiss for lack of subject matter jurisdiction.  The district court found that the plain language of 49 C.F.R. § 385.17(f) afforded the agency discretion to provide an extension, therefore the court granted the United States’ motion.

On appeal, Petitioner contends that the district court erred in holding that the extension was a discretionary act.  To determine if the discretionary function exception did in fact apply, the Court applied a two-prong test first looking at whether the conduct at issue involved “an element of judgement or choice” by the employee.  Berkovitz v. United States, 486 U.S. 531, 536 (1988). Then the Court looked at whether the judgment, “[was] of the kind that the discretionary function exception was designed to shield” in that the judgement relates to a governmental action or decision “based on considerations of public policy. Id. at 536-37; Suter v. United States, 441 F.3d 306, 310-11 (4th Cir. 2006).  The court determined that the FMCSA’s 10-day extension met the requirements of the first prong and thus could not form the basis of an FTCA claim.  FMCSA was exercising discretion within the meaning of the FTCA.  The fact that the FMSCA may have taken “calculated risks” did not matter because the discretionary function exception applies whether the discretion involved be abused, or even erroneous.  Furthermore, the Court recognized that Petitioner’s argument was essentially a challenge to the validity of 49 C.F.R.  § 385.17(f), and as such, could not be the basis of an FTCA claim.  However, even if Petitioner could challenge the validity of the regulation, FMCSA’s decision to promulgate 49 C.F.R. § 385.17(f), would be shielded by the discretionary function exception—meeting the second prong of the test.

Accordingly, the Court affirmed the judgment of the district court.

Full Opinion

Aleia M. Hornsby