By Whitney Pakalka

On February 25, 2016, in the civil case of Pornomo v. United States, the Fourth Circuit issued a published opinion affirming the district court’s dismissal of a wrongful death action filed under the Federal Tort Claims Act (FTCA) against the United States.   The plaintiff, Jonatan Pornomo, alleged that the Federal Motor Carrier Safety Administration (FMCSA) had been negligent in extending the period before an “unsatisfactory” safety rating became final for a passenger carrier. The Fourth Circuit concluded that the FMCSA’s decision to grant an extension fell within the FTCA’s discretionary function exception, and affirmed the district court’s dismissal for lack of subject matter jurisdiction.

Pornomo’s FTCA Claim and the District Court’s Dismissal for Lack of Subject Matter Jurisdiction

Sky Express, Inc., a commercial motor carrier based in Charlotte, North Carolina, operated buses that engaged in interstate passenger transportation. On April 12, 2011, the FMCSA notified Sky Express that it had received an “unsatisfactory” safety rating that would become final in forty-five days and require it to stop operations on May 28, 2011. On May 11, 2011, Sky Express submitted a Request for Change to Proposed Safety Rating, detailing its efforts to resolve safety issues.  A letter sent from the FMCSA on May 13, 2011 informed Sky Express that its request for a change in rating had been denied for failure to give adequate evidence that it had corrected all safety violations. The letter further stated that the FMCSA would conduct a follow-up compliance review before June 7, 2011. That same day, the FMCSA sent Sky Express another letter stating that it had extended the date on which the rating would become final by ten days, to June 7, 2011.

On May 31, 2011, a Sky Express bus traveling from North Carolina to New York went off the side of a Virginia highway when the driver fell asleep. The bus went down an embankment and rolled upside down, suffocating a passenger, Sie Giok Giang, whose head became trapped between the bus roof and the top of her seat.   On April 28, 2014, Pornomo, Giang’s adult son and the administrator of Giang’s estate, filed a wrongful death action against the United States in the District Court for the Eastern District of Virginia, pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671–2780 (2012). Pornomo alleged that the FMCSA was negligent in issuing the ten-day extension because the FMCSA had no statutory authority to issue extensions for passenger carriers, and was thus an invalid regulation. Pornomo contended further, that even if the FMCSA had authority to issue an extension, the criteria for the issuance of an extension had not been met.

The district court granted the United States’ motion to dismiss for lack of subject matter jurisdiction, holding that the discretionary function exception of the FTCA applied to the FMCSA’s decision to grant the extension.   The court found that the plain language of the agency regulation granted the agency discretion to issue such an extension. Because the FMCSA concluded it could not make a final determination before the “unsatisfactory” rating became final, it granted an extension to allow for further review. As such, it was a discretionary decision that fell within the discretionary function exception, and the United States had not waived sovereign immunity. The district court did not address Pornomo’s argument that the regulation was invalid because the underlying statute does not permit extensions for passenger carriers.

FMCSA’s Safety Compliance Review Process

The FMCSA, acting pursuant to delegated authority from the Secretary of Transportation, promulgated regulations for compliance reviews of commercial motor carriers to ensure safe operation. Compliance reviews that result in an “unsatisfactory” rating indicate that the motor carrier’s lack of adequate safety management controls has resulted in safety violations. 49 C.F.R. § 385.5. Passenger carriers that receive an “unsatisfactory” rating do not have to cease operation immediately, but the rating will become final after forty-five days. At that point, the operator must cease operations until it is found to be “fit,” 49 C.F.R. § 385.13(a)(1), which it may attempt to demonstrate by submitting a request for an upgrade of its rating that provides a written description of remedial actions taken. 49 C.F.R. § 385.17(a)–(c). The FMCSA has discretion to grant a ten-day extension if the carrier submitted evidence of corrective actions and the FMCSA cannot make a final determination within the forty-five days before the rating becomes final. 49 C.F.R. § 385.17(f).

The Federal Tort Claims Act’s Discretionary Function Exception 

Although the United States, as a sovereign, is immune from all suits against it absent an express waiver of immunity, the FTCA permits the United States to be held liable in tort by providing a limited waiver of sovereign immunity. The FTCA contains several exceptions to this waiver of immunity, one of which excludes 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 . . . , whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). This discretionary function exception applies if two conditions are met. First, the conduct at issue must involve “an element of judgment or choice” by the government agency, as opposed to a specific course of action prescribed by statute, regulation, or policy. Berkovits v. United States, 486 U.S. 531, 536 (1988). Additionally, that “judgment or choice” must be “of the kind that the discretionary function exception was designed to shield,” which are judgments related to governmental action or decision “based on considerations of public policy.” Id. at 536­–37.

The Fourth Circuit Concludes that the FMCSA’s Decision to Grant an Extension Fell Within the Discretionary Function Exception

 On appeal Pornomo contended that FMCSA’s initial letter to Sky Express, indicating that the company failed to demonstrate that it had taken adequate corrective actions and that the FMCSA was “denying” its request, showed that neither condition of 49 C.F.R. § 385.17 was met. As a result, he argued that the FMCSA did not have discretion to grant an extension under its own regulation. However, the Fourth Circuit found that this argument “cut[] too fine a distinction.” It concluded that the regulation in question was not a “check list,” but is suffuse with discretion, in that the regulation leaves it to the FMCSA to determine whether a carrier’s submission provided evidence of corrective action and whether the agency could reach a final decision within forty-five days. The Fourth Circuit concluded that the “FMCSA made the judgments that Sky Express had submitted some ‘evidence that corrective actions have been taken,’ and that the FMCSA needed additional time to make a final determination,” and was thus “exercising discretion within the meaning of the FTCA.” Because the FMCSA’s action fell within the FTCA’s discretionary function exception, the Fourth Circuit affirmed the district court’s dismissal for lack of subject matter jurisdiction.

Pornomo also asserted that the regulation was invalid because the underlying statute barred the grant of such an extension to a passenger carrier. The Court reasoned that this argument is essentially a challenge to the validity of an agency regulation, and “[a]s such, it cannot be the basis of an FTCA claim.” The Court reasoned that Congress did not “intend[] that . . . the legality of regulations, or the propriety of a discretionary administrative act should be tested through . . . a damage suit for tort.” Dalehite v. United States, 345 U.S. 15, 27(1953).   Additionally, the Fourth Circuit noted that Congress gave the courts of appeals exclusive jurisdiction over the validity of all rules, regulations, or final orders that the Secretary of Transportation issued pursuant to the subchapter III of chapter 311 of title 49. 28 U.S.C. § 2342(3)(A). The Court thus rejected Pornomo’s challenge to the validity of the regulation on jurisdictional grounds, but further stated that even if Pornomo could challenge the regulation in the district court, the promulgation of the regulation was itself a discretionary act that would be protected by the discretionary function exception.

Finally, Pornomo challenged the regulation by contending that it is so plainly at odds with the statute under which it was granted that its promulgation could not have been an act of discretion. He noted that in 2012, the FMCSA removed the ten-day extension provision to make the regulations “consistent with the policy and . . . language” of its statutory mandate, 49 U.S.C. § 31144(c)(2) and (4). That provision provides the Secretary with discretion to extend operations for some carriers, but expressly excludes passenger carriers from that provision. However, the Fourth Circuit concluded that Pornomo’s conclusion was “by no means certain” because the statute “does not expressly proscribe or prescribe a particular course of action for the Secretary of Transportation.” The Court concluded that the statute Pornomo referred to does not bar the FMCSA’s action, because it exempts passenger carriers from sixty-day extensions, not the ten-day extensions in question. The Fourth Circuit noted that the FMCSA’s change to the rule indicated that the new regulation was a “better reading” of the statute, which is “not the same as a necessary one.”

The Fourth Circuit Affirmed the District Court’s Decision to Dismiss For Lack of Subject Matter Jurisdiction

The Fourth Circuit affirmed the district court’s dismissal for lack of subject matter jurisdiction, concluding that the FMCSA’s decision to grant a ten-day extension to Sky Express before its safety rating became final was a discretionary decision that fell within the discretionary function exception to the FTCA. It further concluded that the district court lacked jurisdiction to consider what was essentially a challenge to the validity of an agency regulation, making dismissal proper.