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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