Chhetri v. United States, 15–10644.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation823 F.3d 577
Docket NumberNo. 15–10644.,15–10644.
PartiesGeeta CHHETRI, Pratik Chhetri, Plaintiffs–Appellants, v. UNITED STATES of America, Defendant–Appellee.
Decision Date12 May 2016

823 F.3d 577

Geeta CHHETRI, Pratik Chhetri, Plaintiffs–Appellants
UNITED STATES of America, Defendant–Appellee.

No. 15–10644.

United States Court of Appeals, Eleventh Circuit.

May 12, 2016.

823 F.3d 579

Richard Craig Mitchell, Patrick Joseph O'Connor, Mitchell & Shapiro, Atlanta, GA, Robert Joseph Stoney, Peter Everett, Mark Andrew Towery, Blankingship & Keith, PC, Fairfax, VA, for Plaintiffs–Appellants.

Megan Barbero, Mark B. Stern, U.S. Department of Justice, Washington, DC, Aileen Bell Hughes, John Andrew Horn, Lawrence R. Sommerfeld, U.S. Attorney's Office, Atlanta, GA, for Defendant–Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

The tragic facts of this case involve a bus crash that happened because the driver fell asleep at the wheel. Two of the survivors of that crash sued the Federal Motor Carrier Safety Administration under the Federal Tort Claims Act, contending that agency officials were at fault for allowing the bus company to continue operating after it should have been declared unsafe to do so. The District Court dismissed the suit for lack of federal subject-matter jurisdiction. Specifically, the District Court held that the United States had not waived its immunity from suit related to the decision allowing the bus company to continue operating because that decision was a discretionary one, excepted under 28 U.S.C. § 2680(a) from the United States' waiver of sovereign immunity for certain tort actions. After careful review, we affirm.



On May 31, 2011, Geeta and Pratik Chhetri (“the Chhetris”) sustained serious injuries when the Sky Express, Inc. (“Sky Express”) bus on which they were riding, leaving from North Carolina and heading to New York, crashed on Interstate 95 in Caroline County, Virginia. The crash resulted from the bus driver falling asleep at the wheel.

Prior to the crash, on April 7, 2011, officials of the Federal Motor Carrier Safety Administration (“FMCSA”)1 based

823 F.3d 580

in North Carolina conducted a compliance review of Sky Express, a Charlotte-based motor carrier. After discovering a number of safety violations,2 the FMCSA assigned Sky Express a proposed safety rating of “unsatisfactory,” which would require Sky Express to cease transporting passengers after the safety rating became final in forty-five days and until such time that it could be deemed “fit” to continue. See 49 U.S.C. § 31144(c)(2) ; 49 C.F.R. § 385.13. The FMCSA notified Sky Express of its proposed “unsatisfactory” rating on April 12, 2011.

On May 11, 2011, Sky Express, through a transportation-safety consultant it had hired, submitted a written request to an FMCSA official in the Southern Service Center, located in Atlanta, Georgia, asking the FMCSA to raise its safety rating from “unsatisfactory” to “conditional,” which would allow Sky Express to continue operating after the forty-five-day period set to expire on May 28, 2011. See generally 49 C.F.R. §§ 385.3, 385.17(f) (2011). In its written request, Sky Express explained the various steps it was taking to achieve compliance, including making improvements to its drug-testing policies, creating an accident register, reviewing its drivers' qualifications and implementing new language-training policies, adopting a driver-safety manual, adding additional drivers to specific routes, and developing systems to manage various reporting and inspection requirements. Sky Express ended its written request by asking that “a review for an upgrade of our safety rating be scheduled as soon as possible.”

After internal communications between officials in Atlanta and North Carolina, the FMCSA sent two letters to Sky Express on May 13, 2011. The first letter denied Sky Express's request for an upgrade to its safety rating because the request “did not include sufficient evidence to justify an upgrade” and “failed to demonstrate that adequate corrective actions have been taken.” The letter continued on to note that a follow-up compliance review had been scheduled to take place prior to June 7, 2011. The second letter granted Sky Express a ten-day extension of continued operation “based upon [its] good faith effort” and “to provide additional time ... to conduct a follow-up Compliance Review.” The ten-day extension held in abeyance Sky Express's proposed “unsatisfactory” rating until June 7, 2011. Had the extension not been granted, the rating would have become final on May 28, 2011.

It was during this ten-day extension that the bus crash injuring the Chhetris occurred.


After exhausting their administrative remedies, on April 2, 2014, the Chhetris filed suit against the United States in the United States District Court for the Northern District of Georgia. The Chhetris sought damages for their injuries under the Federal Tort Claims Act (“FTCA”)

823 F.3d 581

on the theory that the FMCSA officials “failed to use due care and violated federal law” in granting the ten-day extension, which “was grossly and recklessly negligent.”

The United States moved to dismiss the Chhetris' complaint on three grounds. See Fed.R.Civ.P. 12(b)(1), (b)(3). First, the United States argued that there was no subject-matter jurisdiction because it had not waived its immunity under the FTCA's discretionary-function exception. See 28 U.S.C. § 2680(a). Second, the United States argued that the complaint was likewise barred because the Chhetris failed to show that “a private individual under like circumstances” would be liable under governing state tort law. See id. § 2674. Third, the United States argued that the Chhetris' complaint should be dismissed for improper venue because the Chhetris did not reside, nor did the negligent or wrongful act or omission occur, in the Northern District of Georgia. See id. § 1402(b).

On December 19, 2014, the District Court entered an order granting the United States' motion to dismiss. Concluding that the FTCA's discretionary-function exception barred the Chhetris' claim, the Court did not reach the United States' alternative grounds for dismissal.

The District Court began its analysis of the discretionary-function exception with the Supreme Court's seminal discussion of that exception in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Under the analysis called for by Berkovitz, courts use a two-prong test to determine whether the exception applies: First, the action in question must “involve[ ] an element of judgment or choice.” Id. at 536, 108 S.Ct. at 1958. Second, the action must be “of the kind that the discretionary function exception was designed to shield”—that is, it must be “based on considerations of public policy.” Id. at 536–37, 108 S.Ct. at 1959. If the discretionary-function exception extends to the conduct in question, claims based on that conduct are barred “whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a).

The District Court held that the FMCSA's decision to grant extensions to motor carriers like Sky Express clearly involved an element of judgment or choice under the first prong of the Berkovitz analysis. In line with the “plain language of the regulation” then in effect, 49 C.F.R. § 385.17(f) (2011), the Court noted that the FMCSA was expressly afforded the discretion to grant extensions of up to ten days. See id. (“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 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.”). The Court rejected the Chhetris' argument that the then-current version of § 385.17(f) conflicted with the governing statute, 49 U.S.C. § 31144, and therefore the regulation failed to grant the FMCSA the discretion it purports to, reasoning that the relevant portion of the Hobbs Act, 28 U.S.C. § 2342(3)(A),3 deprives district courts of the jurisdiction to determine the validity of any rule, regulation, or final order issued by the Secretary of Transportation.4 The

823 F.3d 582

Court also rejected the Chhetris' argument that either of the conditions required for the FMCSA to exercise discretion—that Sky Express submit evidence that corrective actions have been taken and that the FMCSA cannot make a final determination within forty-five days, see 49 C.F.R. § 385.17(f) (2011)—had not been met.

Turning to the second prong of the Berkovitz analysis, the District Court held that the FMCSA's authority to grant extensions during its review of a motor carrier's safety-rating status was “of the kind that the discretionary function exception was designed to shield.” Considering the nature of the FMCSA's role of monitoring and regulating the safety of a diverse range of motor carriers, whether to grant a particular extension is “a discretionary decision involving the safety and policy considerations imbued within the statute and its regulations.” As both Berkovitz prongs were satisfied, the Court concluded that the discretionary-function...

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