Fothergill v. United States

United States Court of Appeals
For the First Circuit

No. 08-1365

LUCY FOTHERGILL,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA
(UNITED STATES POSTAL SERVICE),

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]
____________________

No. 08-1951

CRUZ TERESA DEL TORO PINEIRO,

Plaintiff, Appellant,

v.

UNITED STATES OF AMERICA
(UNITED STATE POSTAL SERVICE),

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]
 Before

Howard, Selya and Hansen,* Circuit Judges.

Luis M. Chaves Ghigliotty on brief for appellants.
Ray E. Donahue, Acting Chief Counsel, Appellate Division,
United States Postal Service, Michelle A. Windmueller, Attorney,
Appellate Division, and Rosa Emilia Rodríguez-Vélez, United States
Attorney, on brief for appellee.

May 21, 2009

*
Of the Eighth Circuit, sitting by designation.
 SELYA, Circuit Judge. These appeals arise out of a freak

accident that occurred on April 25, 2005, at a post office in

Boqueron, Puerto Rico. On that date, two unrelated parties

(plaintiffs Lucy Fothergill and Cruz Teresa del Toro Pineiro)

happened to be inside the facility. Each woman was bent on

transacting routine business.

In the same time frame, another postal customer was

maneuvering her car in the parking lot. That customer accidentally

drove her vehicle through the front entrance of the building and

into its public area. Both plaintiffs sustained injuries as a

result of the mishap.

After complying with applicable administrative

preconditions, the women instituted separate civil actions against

the United States, as a surrogate for the United States Postal

Service, under the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346(b), 2671-2680. We chronicle the travel of these actions.

On May 2, 2007, Fothergill filed a complaint alleging

that the United States was liable in tort for her damages. The

government responded by moving to dismiss the action for want of

subject-matter jurisdiction. Astonishingly, Fothergill did not

oppose the motion.

Well after the expiration of the deadline for filing an

opposition to the government's motion, the district court (Pieras,

J.) granted the unopposed motion on the ground that the FTCA's

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discretionary function exception foreclosed the claim. See

Fothergill v. United States, No. 07-cv-01378, slip op. at 5 (D.P.R.

Dec. 19, 2007) (unpublished). Fothergill moved unsuccessfully for

reconsideration and later appealed.

The same attorney represented the other plaintiff, del

Toro. It is, therefore, unsurprising that her action traveled a

similar path. She sued on April 11, 2007; her complaint alleged

that the United States was liable in tort for her damages under the

FTCA; and on September 22, 2007, the government moved to dismiss

the complaint for want of subject-matter jurisdiction. The

plaintiff did not deign to file an opposition to the government's

motion.

On May 6, 2008, the district court (Casellas, J.)

dismissed the action, holding that the FTCA's discretionary

function exception barred its further prosecution. See Del Toro

Pineiro v. United States, No. 07-cv-01304, slip op. at 4 (D.P.R.

May 6, 2008) (unpublished). In a binary move, del Toro sought

reconsideration and served a notice of appeal. After the district

court declined to revisit its dismissal of the action, del Toro

amended her notice of appeal.

Fothergill's and del Toro's appeals present the same

central issue. Thus, we consolidated them.

The courts below acted in response to motions to dismiss

for lack of subject-matter jurisdiction. See Fed. R. Civ. P.

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12(b)(1). When such decisions are made on the pleadings, they

engender de novo review. See, e.g., McCloskey v. Mueller, 446 F.3d

262, 266 (1st Cir. 2006); see also Irving v. United States, 162

F.3d 154, 162 (1st Cir. 1998) (en banc) (explaining that de novo

review is appropriate for a conclusion that the FTCA's

discretionary function exception applies). In carrying out that

task, we take as true all well-pleaded facts in the plaintiffs'

complaints, scrutinize them in the light most hospitable to the

plaintiffs' theory of liability, and draw all reasonable inferences

therefrom in the plaintiffs' favor.1 See Muñiz-Rivera v. United

States, 326 F.3d 8, 11 (1st Cir. 2003). If the well-pleaded facts,

evaluated in that generous manner, do not support a finding of

federal subject-matter jurisdiction, the orders of dismissal must

stand. See id.

Here, however, the usual, plaintiff-friendly standard of

review is tilted. After all, neither plaintiff opposed the

government's motion to dismiss. Consequently, the plaintiffs have

forfeited the argument in favor of subject-matter jurisdiction.

See, e.g., United States v. Leahy, 473 F.3d 401, 409-10 (1st Cir.

1
This standard applies to motions to dismiss for want of
subject-matter jurisdiction that are adjudicated on the pleadings,
in advance of jurisdictional discovery and without the taking of
any evidence. Given the procedural posture of these appeals, we
need not dwell upon the standards that pertain in other
circumstances. See, e.g., Foster-Miller, Inc. v. Babcock & Wilcox
Can., 46 F.3d 138, 147-48 (1st Cir. 1995) (describing various
standards).

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2007). Our review, accordingly, is only for plain error. See,

e.g., Dávila v. Corporación De P.R. Para La Difusion Publica, 498

F.3d 9, 14-15 (1st Cir. 2007); Cipes v. Mikasa, Inc., 439 F.3d 52,

56 (1st Cir. 2006). Review for plain error places a formidable

obstacle in an appellant's path. A simple showing of error no

longer will suffice. Rather, the appellant must make a four-part

showing: "(1) that an error occurred (2) which was clear or obvious

and which not only (3) affected the [appellant's] substantial

rights, but also (4) seriously impaired the fairness, integrity, or

public reputation of judicial proceedings." United States v.

Duarte, 246 F.3d 56, 60 (1st Cir. 2001). We discern no error here,

plain or otherwise.

The FTCA dominates the topography of this case.2 That

statute comprises a limited waiver of the federal government's

sovereign immunity with respect to private causes of action

sounding in tort. Shansky v. United States, 164 F.3d 688, 690 (1st

Cir. 1999). The plaintiffs sued on the basis of this limited

waiver, but the government asserts that the plaintiffs' claims fall

outside the waiver's boundaries. If that assertion holds water,

the FTCA affords no license for suing the federal government (and,

2
Although the Postal Reorganization Act itself contains a
generalized waiver of immunity to suit, see 39 U.S.C. § 401(1),
that statute explicitly acknowledges that the provisions of the
FTCA shall apply to all tort claims arising out of the Postal
Service's activities. See id. § 409(c); see also Dolan v. U.S.
Postal Serv., 546 U.S. 481, 484 (2006); Davric Me. Corp. v. U.S.
Postal Serv., 238 F.3d 58, 62 (1st Cir. 2001).

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thus, no footing for the instant actions). See Hydrogen Tech.

Corp. v. United States, 831 F.2d 1155, 1160 (1st Cir. 1987). These

appeals hinge, then, on the credibility of the government's

assertion.

Congress has specified various situations in which the

FTCA's circumscribed waiver of sovereign immunity will not attach.

See 28 U.S.C. § 2680. One such specification, pertinent here,

relates to claims "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 . .

. ." Id. § 2680(a). The courts below held that this provision

controlled here. The analytic framework used in connection with the

discretionary function inquiry is familiar: a court first must

identify the conduct that is alleged to have caused the harm, then

determine whether that conduct can fairly be described as

discretionary, and if so, decide whether the exercise or non-

exercise of the granted discretion is actually or potentially

influenced by policy considerations. See Bolduc v. United States,

402 F.3d 50, 60 (1st Cir. 2005); Shansky, 164 F.3d at 691-92.

This brings us to the claims at hand. To begin, each

plaintiff alleges that the Postal Service (and, thus, the United

States) was guilty of negligence in designing and maintaining the

premises of the Boqueron post office without "the most elemental

means to protect the areas inside its facility used by the public

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to transact their business . . . from intrusion and injury" by

vehicles using the immediately adjacent parking areas. In their

appellate briefs, the plaintiffs flesh out this allegation. They

say, in essence, that the Postal Service negligently designed the

parking lot and the entrance to the post office, and that the

plaintiffs' injuries could have been avoided if the Postal Service

had placed some sort of curb or barrier in front of the building's

entrance or had marked the parking spaces differently.

It is possible to characterize these plaints either as

claims for improper design or as claims for negligent failure to

furnish a safe place within which postal patrons could transact

their wonted business. For present purposes, choosing between

these labels would be a pointless exercise; the applicability of

the discretionary function exception turns on the nature and

quality of the harm-producing conduct, not on the plaintiffs'

characterization of that conduct. See Berkovitz v. United States,

486 U.S. 531, 536 (1988). Here, regardless of how the conduct is

denominated, the focus of the plaintiffs' complaints is on the

Postal Service's decisionmaking with respect to the implementation

(or eschewal) of safety measures in connection with its operation

of the post office.

Having identified the harm-producing conduct, we proceed

to the second facet of the inquiry. In carving out the

discretionary function exception, Congress wanted to prevent courts

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from second-guessing legislative and administrative decisionmaking.

See id. at 536-37; United States v. S.A. Empresa de Viacao Aerea

Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984). Thus,

the next step is to determine whether the identified conduct

involves a matter that the political branches have left to the

actor's choice.

At its core, the identified conduct involves decisions

about what safety measures should be included and what should be

excluded in the layout of the post office and its appurtenant

amenities. On the record before us, those decisions were wholly

discretionary. The plaintiffs have identified no law, regulation,

rule, or other requirement that tied the Postal Service's hands in

configuring and outfitting either the building or its adjacent

parking areas. In the absence of any such circumscription, the

pertinent decisions are matters of executive choice (that is,

matters committed to the discretion of the responsible officials).

See, e.g., Shansky, 164 F.3d at 691-92; Irving, 162 F.3d at 162-63.

The last phase of the inquiry requires us to determine

whether this discretion is of the type and kind that Congress

sought to safeguard through the discretionary function exception.

See United States v. Gaubert, 499 U.S. 315, 322-23 (1991);

Berkovitz, 486 U.S. at 536-37. That question is easily answered

here. Deciding whether to install curbs or barriers in a parking

lot, when to do so, how to array them, and the like are variables

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about which reasonable persons can differ. In the last analysis,

those choices are informed by a need to balance concerns about a

myriad of factors such as efficiency, safety, aesthetics, and cost.

In other words, those choices are readily susceptible to policy

analysis.

No more is exigible. So long as there is room for

differing policy judgments, there is discretion of the type and

kind shielded by section 2680(a). See Berkovitz, 486 U.S. at 537;

Shansky, 164 F.3d at 692-93.

There remain two loose ends. We address each of them

briefly.

First, the plaintiffs argue that there is no indication

that the Postal Service ever undertook to weigh the competing

policy concerns that we have identified. That argument is

unavailing.

The law imposes no requirement that the government, as a

prerequisite to invoking the discretionary function exception,

demonstrate that a policy judgment actually was made. The

discretionary function exception applies to all acts and omissions

that are susceptible to policy analysis, whether or not that

analysis has been performed on a given occasion. See Gaubert, 499

U.S. at 324-25; Irving, 162 F.3d at 162.

Second, the plaintiffs condemn the negligence that

infuses the Postal Service's conduct. But even if the Postal

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Service acted negligently — a matter on which we take no view —

that shortcoming would not profit the plaintiffs.

We already have established that the challenged conduct

is of the nature and quality that Congress intended to protect by

means of the discretionary function exception. Once that

precondition has been satisfied, the prophylaxis of the exception

attaches regardless of whether the decisionmaker acted negligently

or manifestly abused the granted discretion. See Ayer v. United

States, 902 F.2d 1038, 1041 (1st Cir. 1990); see also 28 U.S.C.

§ 2680(a) (deeming immaterial the question of "whether or not the

discretion involved [was] abused").

We need go no further. In this instance, the plaintiffs

have neither alleged the existence of, nor otherwise identified,

any mandatory law, rule, regulation, or policy that required the

Postal Service to install curbs or barriers in front of the

Boqueron post office, to lay out the parking lot in any special

way, or otherwise to design or maintain the premises in a manner

that might have averted this unfortunate accident. For aught that

appears, the design criteria were in relevant part matters of

unfettered executive choice. Since the choices relative to design

were susceptible to policy analysis, the courts below did not err

in applying the discretionary function exception and dismissing the

plaintiffs' suits.

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Affirmed.

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