Troy Fagg v. USA - Case Law

Case: 15-14091 Date Filed: 05/16/2016 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 15-14091
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-03539-CC

TROY FAGG,

Plaintiff -Appellant,

versus

UNITED STATES OF AMERICA, et.al.,

Defendant -Appellees.

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Appeal from the United States District Court
for the Northern District of Georgia
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(May 16, 2016)

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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Troy Fagg appeals the district court’s dismissal of his negligence suit against

the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). He

argues that the decision of the United States Postal Service to not have armed

guards escort him as he retrieved mail from a post office branch does not come

within the discretionary function exception to the FTCA, see 28 U.S.C. § 2680(a),

and that the district court therefore erred in dismissing his case for lack of subject-

matter jurisdiction.

Following review of the record and consideration of the parties’ briefs, we

affirm the district court’s dismissal of Mr. Fagg’s FTCA suit.

We review de novo the district court’s interpretation and application of the

discretionary function exception to the FTCA, and accept the factual allegations in

the complaint as true. Hughes v. United States, 110 F.3d 765, 767 (11th Cir. 1997).

Because we write for the parties, we recite only what is necessary to resolve this

appeal.

In December of 2013, Mr. Fagg worked for Davosa Transport Service

Trucking Company transporting mail for the USPS. On December 20, while Mr.

Fagg was retrieving mail at the end of the day from the Conley Post Office—in

Georgia—two armed men held him at gunpoint and stole his truck. The robbers

shot Mr. Fagg in the stomach, and restrained him with zip ties. Mr. Fagg

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eventually freed himself and flagged down a passing vehicle. He then received

treatment at a local hospital and incurred a large hospital bill.

In the 13 months prior to the robbery of Mr. Fagg, there had been two

previous robberies at the Conley Post Office. The USPS responded to these earlier

robberies by arranging for armed guards to escort drivers who picked up and

delivered mail at the Conley Post Office at the end of the day. But the practice of

providing armed security only lasted a brief amount of time, and it had been

discontinued by the time of Mr. Fagg’s robbery in December of 2013.

Mr. Fagg filed a negligence suit under the FTCA against the United States

and several individuals involved with the USPS. The United States filed a motion

to dismiss for lack of subject-matter jurisdiction, arguing that the USPS’ decision

to discontinue the use of armed guards fell within the discretionary function

exception to the FTCA. The district court agreed with the United States and

granted its motion to dismiss. 1

The FTCA waives the United States’ sovereign immunity and provides

district courts with jurisdiction over the United States for certain harms caused by

the negligent acts of government employees acting within the scope of their

1
The FTCA does not allow for suits against individuals. See 28 U.S.C. § 2679(a),(b)(1). The
claims against the individual defendants were dismissed in the district court and are not at issue
on appeal.
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employment. See 28 U.S.C. § 1346(b). An exception to this waiver of sovereign

immunity is the discretionary function exception:

Any claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or 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 the discretionary function exception is

applicable we apply a two-part test. See Hughes, 110 F.3d at 767 (citing United

States v. Gaubert, 499 U.S. 315, 322–23 (1991)). We first look to see if the

challenged conduct involves an element of judgment or choice. See id. We then

determine whether that judgment was of the kind that the discretionary function

exception was designed to shield. See id.

As to the first question,“[t]he relevant inquiry is whether the controlling

statute or regulation mandates that a government agent perform his or her function

in a specific manner.” Hughes, 110 F.3d at 768 (internal citation omitted).There

are no statutes, regulations, or express policies of the USPS mandating that armed

guards escort delivery drivers when they pick up or deliver mail at a post office.

Mr. Fagg’s contention—that the USPS’ use of armed escorts at the Conley Post

Office over an undisclosed period of weeks at some point prior to his robbery

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created a mandate that the USPS was not permitted deviate from—is

unconvincing.

The USPS has the general power to operate and maintain buildings and

facilities. See 39 U.S.C. § 401(6). The governing regulations designate the Chief

Postal Inspector as the security officer for the USPS and task him with

responsibility “for the issuance of instructions and regulations pertaining to

security requirements within the Postal Service.” 39 C.F.R. § 231.1(b). In

accordance with the rules issued by the Chief Postal Inspector, each postmaster or

a designated supervisor is responsible for the general security of a post office, its

stations, and branches. See 39 C.F.R. § 231.2. A Postal Operations Manual

provides additional regulations of the operation of a post office. See 39 C.F.R. §

211.2(a)(2). See also Hughes, 110 F.3d at 768.

“These general guidelines do not mandate a specific course of conduct

regarding security at a post office.” Hughes, 110 F.3d at 768. The Security Control

Officer is given broad discretion in arranging security at a post office in

accordance with the regulations established by the Chief Postal Inspector. See id.

The wide latitude given to a postmaster concerning the security measures that are

to be taken at a given location allows for ample room to exercise judgment and

choice. See id.

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The decision as to the use or non-use of armed escorts for mail pickup and

delivery at the Conley Post Office is not mandated by any statute or regulation. We

therefore agree with the district court that the wide latitude allowed in choosing

whether and how to provide security at post offices satisfies the first prong of the

discretionary function test.

Having concluded that the conduct in question involved a discretionary

judgment or choice, we examine whether that judgment is of the type that the

discretionary function exception was designed to shield. See Hughes, 110 F.3d at

768. We focus on whether the challenged actions are “susceptible to policy

analysis.” Id.

We faced an almost identical set of facts in Hughes. There the plaintiff

challenged certain security decisions made by the USPS, such as remaining open

on a 24-hour basis and not providing security for the patrons, inadequate lighting,

and maintaining foliage where assailants could hide. Id. at 766. We held that

decisions concerning post office security are a fundamental part of the economic

and social policy analysis associated with achieving the goal of providing postal

service in the United States. Id. at 768. “When established governmental policy, as

expressed or implied by statute, regulation, or agency guidelines, allows a

Government agent to exercise discretion, it must be presumed that the agent’s acts

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are grounded in policy when exercising that discretion.” Id. (citing Gaubert, 499

U.S. at 324).

Due to the general nature of the statutes and regulations governing the

USPS, postal employees have considerable discretion concerning the allocation of

resources. See id. They must decide how to allocate resources so as to best serve

customers in a prompt, reliable, and efficient manner. Id. Although financial

considerations alone may not necessarily make a decision one involving policy,

such considerations are particularly relevant to the Postal Service, which is

“operated as a basic and fundamental service provided to the people.” 39 U.S.C. §

101(a). See Hughes, 110 F.3d at 769. As in Hughes, “we will not second guess the

Postal Service’s resource allocation decisions.” Id. (citations omitted).

III

Given our decision in Hughes, we affirm the district court’s dismissal of Mr.

Fagg’s complaint for lack of subject-matter jurisdiction.

AFFIRMED.