Jonatan Pornomo v. United States

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2391

JONATAN PORNOMO, Administrator of the Estate of Sie Giok
Giang, Deceased,

Plaintiff - Appellant,

v.

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:14-cv-00307-JRS)

Argued: December 8, 2015 Decided: February 25, 2016

Before AGEE and HARRIS, Circuit Judges, and Theodore D. CHUANG,
United States District Judge for the District of Maryland,
sitting by designation.

Affirmed by published opinion. Judge Chuang wrote the opinion,
in which Judge Agee and Judge Harris joined.

ARGUED: Philip L. Bradfield, THE BRADFIELD INJURY LAW FIRM, PLC,
Newport News, Virginia, for Appellant. Megan Barbero, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Mark B. Stern, Appellate Staff, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia; Paul M. Geier, Assistant General Counsel for
Litigation, Paula Lee, Trial Attorney, Abel L. Smith, III,
Assistant Chief Counsel, FMCSA General Law Division, Sabrina E.
Redd, Attorney Advisor, FMCSA General Law Division, Federal
Motor Carrier Safety Administration, UNITED STATES DEPARTMENT OF
TRANSPORTATION, Washington, D.C., for Appellee.

2
CHUANG, District Judge:

On May 31, 2011, Sie Giok Giang, a passenger on a Sky

Express interstate bus traveling from North Carolina to New

York, was killed when the driver fell asleep at the wheel and

ran the bus off the side of a Virginia highway. About seven

weeks before the crash, Sky Express had been given an

“unsatisfactory” safety rating by the Federal Motor Carrier

Safety Administration (“FMCSA”), a rating that ordinarily would

require a passenger motor carrier to cease operations after 45

days. The fatal crash occurred after that 45-day period, but

during an extension period granted by the FMCSA that allowed Sky

Express to remain on the road for an additional 10 days. At

issue is whether the discretionary function exception to the

Federal Tort Claims Act (“FTCA”) bars an FTCA claim against the

FMCSA for allowing Sky Express to continue to operate during

those 10 days. The district court concluded that, pursuant to

that exception, it lacked subject matter jurisdiction and

dismissed the case. We affirm.

I.

A.

The present dispute stems from the operation of the federal

regulatory scheme for monitoring the safe operation of

interstate passenger motor carriers. Congress has charged the

Secretary of Transportation (“the Secretary”) to “determine

3
whether an owner or operator is fit to operate safely commercial

motor vehicles.” 49 U.S.C. § 31144(a)(1) (2012). In turn, the

Secretary has delegated this authority to the FMCSA. 49 C.F.R.

§ 1.87(f) (2015). To carry out this mandate, the FMCSA has

promulgated regulations that provide for compliance reviews of

commercial motor carriers to ensure their safe operation. 49

C.F.R. §§ 385.3, 385.9. Based on a compliance review, a

commercial motor carrier is given a safety rating of

“satisfactory,” “conditional,” or “unsatisfactory.” Id. § 385.3.

A “satisfactory” rating means that the motor carrier has

adequate safety management controls in place. Id. A

“conditional” rating means that the motor carrier does not have

adequate safety management controls in place and that the lack

of those controls “could result” in safety violations. Id. An

“unsatisfactory” rating means that the motor carrier “does not

have adequate safety management controls in place” and that the

lack of safety management controls “has resulted” in safety

violations. Id.; see 49 C.F.R. § 385.5 (delineating salient

safety violations).

If a commercial motor carrier receives an “unsatisfactory”

rating, it does not have to cease operation immediately.

Instead, for passenger carriers, an “unsatisfactory” rating

becomes final “beginning on the 46th day after the date of the

FMCSA notice of proposed ‘unsatisfactory’ rating,” 49 C.F.R.

4
§ 385.13(a)(1), at which point the carrier may not operate until

the owner or operator is found to be “fit,” 49 U.S.C.

§ 31144(c)(2). The carrier may seek an upgrade of its rating by

submitting to the FMCSA a written description of corrective

actions it has taken and documentation of those changes. 49

C.F.R. § 385.17(a)-(c). A request for an upgrade does not toll

the 45-day provisional period. However, in 2011, when the

events at issue in this case occurred, the regulations provided

that “[i]f the motor carrier has submitted evidence that

corrective actions have been taken . . . and the FMCSA cannot

make a final determination within 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).

In 2012, the FMCSA rescinded this 10-day extension

provision to make the regulations “consistent with the policy

and the statutory language” of 49 U.S.C. § 31144(c)(2) and (4).

77 Fed. Reg. 64,759, 64,759 (Oct. 23, 2012). 49 U.S.C.

§ 31144(c)(2) states that “[w]ith regard to owners or operators

of commercial motor vehicles designed or used to transport

passengers, an owner or operator who the Secretary determines is

not fit may not operate in interstate commerce beginning on the

46th day after the date of such fitness determination and until

the Secretary determines such owner or operator is fit.” The

5
statute provides the Secretary with discretion to extend

operations for some carriers “for an additional 60 days,” but

expressly excludes passenger carriers from that provision. 49

U.S.C. § 31144(c)(4).

B.

In 2011, Sky Express, Inc., a commercial motor carrier

based in Charlotte, North Carolina, operated buses engaged in

interstate passenger transportation. On April 7, 2011, the

FMCSA conducted a safety compliance review of Sky Express and

gave the carrier an “unsatisfactory” rating. On April 12, 2011,

the FMCSA sent Sky Express written notice of that rating,

explaining that the rating would become final in 45 days, on May

28, 2011, unless Sky Express took “the necessary steps to

improve the rating to conditional or satisfactory.” J.A. 35.

On May 11, 2011, Sky Express submitted a Request for Change to

Proposed Safety Rating in which it detailed efforts it had taken

to resolve the safety issues identified in the April 7, 2011

compliance review.

After reviewing Sky Express’s submission, the FMCSA

concluded on May 12, 2011 that Sky Express had failed to provide

adequate evidence that it had corrected all of the safety

violations and thus decided to conduct a follow-up compliance

review. In a May 13, 2011 letter from FMCSA Field Administrator

Darrell Ruban to Sky Express, the FMCSA informed Sky Express

6
that it was “denying” Sky Express’s request for a change in its

rating because the submitted materials did not “provide

sufficient evidence that the violations cited in the compliance

review have been corrected.” J.A. 52. The letter then notified

Sky Express that the FMCSA would conduct a follow-up compliance

review before June 7, 2011, during which Sky Express would need

to provide additional documentation for review by safety

investigators. In a second letter sent that same day, the FMCSA

informed Sky Express that in order to provide additional time to

conduct the follow-up compliance review, the deadline for Sky

Express’s “unsatisfactory” rating to become final had been

extended by 10 days, from May 28, 2011 to June 7, 2011.

During that 10-day extension period, on May 31, 2011 at

approximately 4:45 a.m., a Sky Express bus traveling northbound

on Interstate 95 crashed in Caroline County, Virginia after the

driver fell asleep at the wheel and allowed the bus to go off

the road and down an embankment. The bus flipped over and

rolled upside down, and Sie Giok Giang, a passenger, suffocated

to death when her head became trapped between the collapsed bus

roof and the top of her seat.

C.

On April 28, 2014, Appellant Jonatan Pornomo, Giang’s adult

son and the administrator of Giang’s estate, filed a wrongful

death action against the United States pursuant to the Federal

7
Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2012), in the

United States District Court for the Eastern District of

Virginia, Richmond Division. Pornomo alleged that the FMCSA had

been negligent in issuing the 10-day extension because the

language of 49 U.S.C. § 31144(c) does not permit any extension

of the 45-day deadline, such that the regulation authorizing

such an extension, 49 C.F.R. § 385.17(f), was invalid. Pornomo

further contended that even if the FMCSA had the authority to

issue an extension under 49 C.F.R. § 385.17(f), the criteria for

issuance of such an extension had not been met.

The United States filed a Motion to Dismiss for Lack of

Subject Matter Jurisdiction, arguing that the district court did

not have jurisdiction over Pornomo’s claim because the issuance

of the 10-day extension was a discretionary act shielded from

suit under the discretionary function exception to the FTCA, and

because Pornomo’s claim that the FMCSA lacked statutory

authority to promulgate and apply 49 C.F.R. § 385.17(f) was a

challenge to the validity of the regulation that, under 28

U.S.C. § 2342(3)(A), could be raised only in the court of

appeals. The Government also argued that subject matter

jurisdiction was lacking because the conduct at issue here did

not constitute a tort under Virginia law.

The district court granted the Motion, holding that the

discretionary function exception applied to the decision to

8
issue the 10-day extension and that the United States therefore

had not waived sovereign immunity for this suit. The court

found that the plain language of 49 C.F.R. § 385.17(f) afforded

the agency discretion to grant an extension. The decision was

“still a discretionary decision” even though the regulation

provided two preconditions, because those preconditions were

“not detailed” or a “safety check list,” but instead required

the application of FMCSA’s “expertise” to determine whether they

had been met. J.A. 14-15. The court then concluded that the

“FMCSA received a detailed, written corrective action plan from

Sky Express but determined, using its judgment, that it needed

more information to verify the contents of the plan.” Id. at

15. It further found that the “FMCSA determined it was unable

to make a final determination concerning Sky Express’ operating

authority registration and therefore granted the extension to

provide additional time to conduct a follow-up compliance

review.” Id. The district court thus dismissed the case for

lack of subject matter jurisdiction. The district court did not

directly address Pornomo’s argument that 49 C.F.R. § 385.17(f)

was invalid because the enabling statute does not permit any

extensions for passenger carriers. It also did not address the

Government’s argument that the FMCSA’s conduct did not

constitute a tort under Virginia law.

9
 Pornomo appealed. We have jurisdiction under 28 U.S.C.

§ 1291.

II.

Pornomo first claims that the district court erred in

dismissing the Complaint because the facts related to subject

matter jurisdiction are intertwined with the facts central to

the merits of his claim. Because Pornomo did not make this

argument below, it is waived. Robinson v. Equifax Information

Services, LLC, 560 F.3d 235, 242 (4th Cir. 2009) (“Absent

exceptional circumstances . . . we do not consider issues raised

for the first time on appeal.”) (quoting Volvo Const. Equip. N.

Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004));

Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (“As this

court has repeatedly held, issues raised for the first time on

appeal generally will not be considered.”).

Pornomo also contends that the district court erred in (1)

finding that the issuance of the 10-day extension was a

discretionary act, such that the court lacked subject matter

jurisdiction pursuant to the discretionary function exception to

the FTCA; and (2) failing to find that 49 C.F.R. § 385.17(f)

(2011) was invalid because its provision authorizing a 10-day

extension exceeded the agency’s statutory authority. We address

these arguments in turn.

10
 A.

The district court dismissed Pornomo’s complaint for lack

of subject matter jurisdiction because it found that the United

States had not waived sovereign immunity. See Medina v. United

States, 259 F.3d 220, 223-24 (4th Cir. 2001) (“[T]he

Government’s potential immunity from suit affects our

jurisdiction[.]”). We review a district court’s dismissal for

lack of subject matter jurisdiction de novo. Suter v. United

States, 441 F.3d 306, 310 (4th Cir. 2006). In determining

whether subject matter jurisdiction exists, the reviewing court

is not limited to the grounds relied on by the district court,

but rather “may affirm on any grounds apparent from the record.”

Id.

B.

“As a sovereign, the United States is immune from all suits

against it absent an express waiver of its immunity.” Welch,

Jr. v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing

United States v. Sherwood, 312 U.S. 584, 586 (1941)). Because

the default position is that the federal government is immune to

suit, any waiver of that immunity “must be ‘strictly construed

. . . in favor of the sovereign.’” Id. at 650-51 (quoting Lane

v. Pena, 518 U.S. 187, 192 (1996)) (ellipses in original).

Pornomo’s tort claims are brought under the Federal Tort

Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. The FTCA does not

11
create a new cause of action; rather, it permits the United

States to be held liable in tort by providing a limited waiver

of sovereign immunity “for injury or loss caused by the

negligent or wrongful act of a Government employee acting within

the scope of his or her employment.” Medina, 259 F.3d at 223.

The FTCA renders the United States liable for such tort claims

“in the same manner and to the same extent as a private

individual under like circumstances.” 28 U.S.C. § 2674.

The FTCA contains several exceptions to its waiver of

immunity. In particular, the FTCA’s waiver of sovereign

immunity does not extend 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).

To determine whether this discretionary function exception

applies, courts apply a two-part test. The first step is to

decide whether the conduct at issue involves “an element of

judgment or choice” by the employee, rather than, for example,

“when a federal statute, regulation, or policy specifically

prescribes a course of action for an employee to follow.”

Berkovitz v. United States, 486 U.S. 531, 536 (1988). The

second step is to determine whether that judgment “is of the

kind that the discretionary function exception was designed to

12
shield” in that the judgment relates to a governmental action or

decision “based on considerations of public policy.” Id. at

536-37; see Suter, 441 F.3d at 310-11.

If an action is discretionary within the meaning of the

exception, the exception applies “whether or not the discretion

involved be abused.” 28 U.S.C. § 2680(a); United States v.

Gaubert, 499 U.S. 315, 323 (1991) (noting that discretionary

actions are “protected, even if those particular actions were

negligent”). It applies “even if the discretion has been

exercised erroneously” and is deemed to have frustrated the

relevant policy purpose. Holbrook v. United States, 673 F.3d

341, 350 (4th Cir. 2012). “The inquiry is thus whether the

discretion exists, not whether in later litigation it is alleged

to have been abused. Were it otherwise, Congress’ intent to

shield an agency’s discretionary decisions from FTCA lawsuits

would be set at naught.” Id.

III.

“[W]hatever else the discretionary function exception may

include, it plainly was intended to encompass the discretionary

acts of the Government acting in its role as a regulator of the

conduct of private individuals.” United States v. S.A. Empresa

de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,

813-14 (1984). As discussed below, because the FMCSA’s decision

to grant the 10-day extension pursuant to an existing regulation

13
involved an “element of judgment or choice” and was “based on

considerations of public policy,” the discretionary function

exception applies. Berkovitz, 486 U.S. at 536-37.

Pornomo does not dispute that the matter at issue,

government regulators’ safety determinations for commercial

motor vehicles, involves considerations of public policy. See

United States v. Gaubert, 499 U.S. 323, 324 (1991) (stating that

if a regulation “allows a Government agent to exercise

discretion, it must be presumed that the agent’s acts are

grounded in policy when exercising that discretion”). Thus, the

applicability of the discretionary function exception turns on

the first prong: whether the conduct at issue involves an

element of judgment or choice.

The 10-day extension was issued pursuant to a regulation

that states,

If the motor carrier has submitted evidence that
corrective actions have been taken pursuant to this
section 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) (emphasis added). On the face of

the regulation, therefore, the act of granting an extension

requires an exercise of judgment or choice by the FMCSA. The

regulation thus differs markedly from the mandatory provisions

at issue in the cases cited by Pornomo in which regulatory

14
action was deemed nondiscretionary. See Berkovitz, 486 U.S. at

543-44 (finding that the discretionary function exception did

not bar an FTCA claim against a federal agency for licensing

polio vaccine without first receiving mandatory safety data and

determining compliance with safety standards); In re: Sabin Oral

Polio Vaccine Prods. Liab. Litig., 984 F.2d 124, 127 (4th Cir.

1993) (finding that release of a vaccine upon meeting mandatory

safety requirements was a nondiscretionary function).

Pornomo nevertheless argues that the discretionary function

exception does not bar his claim because § 385.17(f) gives the

FMCSA discretion to grant a 10-day extension only if and when

two conditions have been met: (1) the motor carrier has

submitted evidence that corrective actions have been taken; and

(2) the FMCSA cannot make a final determination within the 45-

day period. 49 C.F.R. § 385.17 (2011). Pornomo asserts that

because the first May 13, 2011 FMCSA letter to Sky Express

stated that the company had “failed to demonstrate that adequate

corrective actions have been taken to address the acute and/or

critical violations” and that the agency was “denying” Sky

Express’s request to upgrade its safety rating, J.A. 52, the

FMCSA had already made a final determination as of that date.

Pornomo thus asserts that neither condition was satisfied, such

that the FMCSA was not vested with the discretion referenced in

the regulation.

15
 This argument cuts too fine a distinction. “Where there is

room for policy judgment and decision there is discretion.”

Dalehite v. United States, 346 U.S. 15, 36 (1953). In Holbrook,

this Court held that the discretionary function exception barred

an FTCA claim arising from a Federal Aviation Administration

(“FAA”) issuance of an airworthiness certificate. 673 F.3d at

349. The Court determined that a predicate requirement in the

relevant regulation, that an aircraft’s application must include

a certification from the country of manufacture that the

aircraft conformed to its type design and was safe to operate,

afforded discretion to the FAA to “make its own findings”

whether the submitted documentation satisfied that requirement.

Id. Likewise, as the district court noted, 49 C.F.R.

§ 385.17(f) is not a “check list.” J.A. at 105. It leaves it

to the FMCSA to determine whether a carrier’s submission

provides evidence that corrective action has been taken, and

whether the agency has the resources to reach a final decision

within 45 days. Such decisions, which relate to a regulatory

agency’s “implementation of a mechanism for compliance review”

and necessarily require “balancing the objectives sought to be

obtained against such practical considerations as staffing and

funding,” constitute discretionary functions themselves. Varig

Airlines, 467 U.S. at 819-20 (holding that the FAA’s application

of a spot-check system to a particular aircraft was a

16
discretionary function). Discretion thus suffuses 49 C.F.R.

§ 385.17(f) (2011), rather than, as Pornomo would have it,

appearing only after certain mandatory predicates have been

satisfied.

The FMCSA, in fact, exercised this discretion. Although

Pornomo focuses on the FMCSA’s statement in its first May 13,

2011 letter that it was “denying” Sky Express’s request, J.A.

52, an FMCSA internal memorandum dated May 12, 2011 indicates

that the FMCSA had reviewed Sky Express’s submission, found that

it had submitted some evidence of corrective actions, but

concluded that those actions did not address “all violations”

and were “not sufficient to correct the deficiencies discovered

during the compliance review.” J.A. 44. Rather than close the

matter, the FMCSA then determined that it would conduct a

follow-up compliance review “prior to June 7, 2011,” which would

be 10 days after the expiration of the 45-day period. Id. at

44. It then informed Sky Express, in the first May 13 letter,

of the follow-up compliance review and requested that Sky

Express prepare to provide additional documentation “for

examination” at that review. Id. at 53. Thus, the FMCSA made

the judgments that Sky Express had submitted some “evidence that

corrective actions have been taken,” 49 C.F.R. § 385.17 (2011),

and that the FMCSA needed additional time to make a final

determination on Sky Express’s rating.

17
 Ultimately, it does not matter whether the FMCSA was

correct in these judgments. The discretionary function

exception applies “whether or not the discretion involved be

abused,” 28 U.S.C. § 2680(a), and “even if the discretion has

been exercised erroneously,” Holbrook, 673 F.3d at 350 (quoting

Gaubert, 499 U.S. at 338 (Scalia, J., concurring in part and

concurring in the judgment)) (rejecting the argument that an

allegedly erroneous determination by an FAA official that a

helicopter conformed to a certificate requirement was not

discretionary). “If it were not so, the protection of § 2680(a)

would fail at the time it would be needed[.]” Dalehite, 346

U.S. at 36. Here, where the FMCSA made judgments on (1) whether

Sky Express had submitted sufficient evidence of corrective

action to warrant a follow-up compliance review and (2) whether

such a review could reasonably and fairly be conducted without

an extension of the 45-day period for establishing fitness, the

FMCSA was exercising discretion within the meaning of the FTCA.

The FMCSA may have taken certain “calculated risks,” but it did

so for a governmental purpose pursuant to a governing

regulation. See Varig Airlines, 467 U.S. at 820 (holding that

the FAA’s alleged negligence in failing to check certain

specific items in the course of certificating a specific

aircraft as part of a spot-check program involved “calculated

risks” but fell “squarely within the discretionary function

18
exception”). The district court thus properly concluded that

the granting of the 10-day extension was a discretionary

decision that could not form the basis of an FTCA claim.

IV.

Pornomo further argues that even if the FMCSA was

authorized by 49 C.F.R. § 385.17(f) to exercise its discretion

to grant a 10-day extension, that regulation was invalid because

the plain and unambiguous language of the underlying statute, 49

U.S.C. § 31144, barred the grant of any such extension.

Pornomo’s argument is essentially a challenge to the validity of

49 C.F.R. § 385.17(f) (2011). As such, it cannot be the basis

of an FTCA claim. As a general matter, “[i]t was not intended

that the constitutionality of legislation, the legality of

regulations, or the propriety of a discretionary administrative

act should be tested through the medium of a damage suit for

tort.” Dalehite, 346 U.S. at 27 (internal quotation mark

omitted); Welch, Jr. v. United States, 409 F.3d 646, 653 (4th

Cir. 2005) (stating that the FTCA does “not provide a venue in

which to challenge the validity of [a] law”). More

specifically, Congress has granted the courts of appeals

exclusive jurisdiction to determine the validity of “all rules,

regulations, or final orders of the Secretary of Transportation

issued pursuant to . . . subchapter III of chapter 311 . . . of

title 49,” which includes 49 U.S.C. § 31144. 28 U.S.C.

19
§ 2342(3)(A). Because Pornomo’s claim that the grant of a 10-

day extension pursuant 49 C.F.R. § 385.17(f) violated 49 U.S.C.

§ 31144 amounts to a challenge to the validity of that

regulation, the district court had no jurisdiction to hear it.

See 28 U.S.C. § 2342(3)(A).

Even if Pornomo could challenge the validity of 49 C.F.R.

§ 385.17(f) in the district court, the court would still lack

jurisdiction over his FTCA claim because the FMCSA’s

promulgation of the regulation was itself a discretionary act.

“[T]here is no doubt that planning-level decisions establishing

programs are protected by the discretionary function exception,

as is the promulgation of regulations by which the agencies are

to carry out the programs.” Gaubert, 499 U.S. at 323. Thus,

the FMCSA’s decision to promulgate 49 C.F.R. § 385.17(f), even

if that decision proved to be an abuse of discretion, would be

shielded by the discretionary function exception. See 28 U.S.C.

§ 2680(a).

Pornomo attempts to circumvent this conclusion by asserting

that 49 C.F.R. § 385.17(f) is so plainly at odds with the

language of 49 U.S.C. § 31144(c)(2) that the promulgation of the

regulation could not have been an act of discretion. In support

of this argument, he marshals 49 U.S.C. § 31144(c)(2), which

requires that passenger carriers stop operating 45 days after

they have been deemed unfit, and § 31144(c)(4), which grants the

20
Secretary discretion to “allow an owner or operator who is not

fit to continue operating for an additional 60 days” if it is

“making a good faith effort to become fit,” but expressly

exempts passenger carriers from that provision. The exclusion

of passenger carriers from the 60-day extension, Pornomo

reasons, must mean that no extension of the 45-day period is

permitted. He also notes that in 2012, the FMCSA rescinded the

10-day extension provision in 49 C.F.R. § 385.17(f) to make the

regulations “consistent with the policy and the statutory

language” of 49 U.S.C. § 31144(c)(2) and (4). 77 Fed. Reg. at

64,759.

Yet Pornomo’s conclusion is by no means certain. As

drafted, 49 U.S.C. § 31144(c)(2) prohibits owners and operators

of commercial passenger carriers from operating under certain

conditions. The statute does not expressly proscribe or

prescribe a particular course of action for the Secretary of

Transportation. Nor does 49 U.S.C. § 31144(c)(4) flatly bar the

FMCSA’s action, because it exempts passenger carriers only from

60-day extensions, not necessarily ones of more modest duration,

such as the one here. See Berkovitz, 486 U.S. at 536 (noting

that a government official lacks judgment or choice for the

purposes of determining whether the discretionary function

exception applies when “a federal statute, regulation, or policy

21
specifically prescribes a course of action for an employee to

follow”) (emphasis added)).

While one may conclude, as the FMCSA itself later did, that

the better reading of these statutory provisions is that 45 days

is a hard deadline for passenger carriers with unsatisfactory

ratings, a better reading is not the same as a necessary one.

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. See Gaubert, 499 U.S. at 323. The district

court therefore correctly dismissed the case for lack of subject

matter jurisdiction.

Having reached this conclusion, we need not address the

Government’s argument that the FMCSA’s conduct does not

constitute a tort under Virginia law.

V.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED

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