UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1242
RONALD A. BURROWS; SHERYL A. BURROWS,
Plaintiffs - Appellants,
versus
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-
03-1263-DKC)
Submitted: September 15, 2004 Decided: January 25, 2005
Before WILKINSON, LUTTIG, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ronald A. Burrows, Sheryl A. Burrows, Appellants Pro Se. Neil Ray
White, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ronald and Sheryl Burrows filed a complaint against the
United States and the United States Postal Service concerning
excessive noise from the post office across the street from their
townhouse in Rockville, Maryland. The district court denied relief
on all claims. The Burrowses timely appealed.
To the extent that the Burrowses claim on appeal that
they had a cause of action for damages under the Postal
Reorganization Act, 39 U.S.C.A. §§ 401 - 412 (West 1980 & Supp.
2004) (“PRA”), we find that the district court correctly concluded
that monetary relief was not available under the PRA. Instead,
because the Burrowses had a cognizable claim under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346, 2671 - 2680 (2000) (“FTCA”), the
FTCA provided the exclusive remedy. 28 U.S.C. § 2679(a); FDIC v.
Meyer, 510 U.S. 471, 476 (1994).
The Burrowses take issue with the district court’s
finding that their trespass and nuisance claims were barred by the
discretionary function exception to the FTCA’s waiver of sovereign
immunity. The discretionary function exception provides that the
United States is not liable for any claims “based upon the exercise
or performance or the failure to 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). Pursuant to the discretionary function
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exception, a court lacks subject matter jurisdiction over any suit
concerning government conduct that (1) involves an element of
judgment or choice, and (2) is an action or decision based on
considerations of public policy. United States v. Gaubert, 499
U.S. 315, 323 (1991); Berkovitz v. United States, 486 U.S. 531, 537
(1988). We find that decisions concerning the loading and
unloading of mail involve an element of judgment or choice and are
grounded in the economic and social policies of the Postal Service
to provide “prompt, reliable, and efficient [mail] services” to the
nation and therefore fall within the protection of the
discretionary function exception. 39 U.S.C. § 101(a) (2000); cf.
Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997)
(holding that security decisions are “a fundamental part of the
economic and social policy analysis required to achieve the basic
goals of the Postal Service” and therefore are entitled to
protection from action under the discretionary function exception).
Accordingly, we find that the district court properly concluded
that it lacked subject matter jurisdiction over the Burrowses’ FTCA
claims.
In addition to damages, the Burrowses sought declaratory
and injunctive relief, specifically a declaration that the Postal
Service’s activities amounted to trespass and nuisance and an order
directing the agency to comply with state and local noise laws and
ordinances. Holding that the federal Noise Control Act did not
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provide a private right of action and did not require the Postal
Service to comply with local regulations, the district court denied
relief.
On appeal, the Burrowses assert that because the Postal
Service waived its sovereign immunity through the PRA’s sue-and-be-
sued clause, 39 U.S.C. § 401(1) (2000), they were entitled to
enforce local Maryland noise ordinances against the agency without
regard to whether any federal statutes created a private cause of
action to enforce state and local law. We conclude that we need
not evaluate this claim because the Burrowses failed to raise it
properly in the district court. Muth v. United States, 1 F.3d 246,
250 (4th Cir. 1993) (holding that claims raised for the first time
on appeal will not be considered absent exceptional circumstances).
Without expressing an opinion concerning the merits of this claim,
if the Burrowses wish to pursue it, they must do so through a new
action.
For these reasons, we affirm the district court’s order
denying relief on the Burrowses’ complaint. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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