Fazi v. U.S.

• Decision Date: 12 June 1991
• Docket Number: D,No. 995,995
• Parties: Joseph Alphonse FAZI, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 90-6266.
• Court: U.S. Court of Appeals — Second Circuit

Page 535

935 F.2d 535

Joseph Alphonse FAZI, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 995, Docket 90-6266.

United States Court of Appeals, Second Circuit.

Argued Jan. 28, 1991.

Decided June 12, 1991.

Dominic Pellegrino (Palmiere & Pellegrino, P.C., Rochester, N.Y., on the brief), for plaintiff-appellant.

Donald P. Simet, Asst. U.S. Atty. (Dennis C. Vacco, U.S. Atty., W.D.N.Y., Buffalo, N.Y., on the brief), for defendant-appellee.

Before KEARSE, PRATT, and McLAUGHLIN, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Joseph Alphonse Fazi appeals from a judgment of the United States District Court for the Western District of New York, David G. Larimer, Judge, dismissing his complaint seeking damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 1346(b), 2671 et seq. (1982), from defendant United States of America ("government"), for injuries sustained when he was kidnaped and the truck he was driving was robbed while he was transporting mail pursuant to a contract between his employer and the United States Postal Service ("USPS"). The district court granted summary judgment dismissing Fazi's complaint on the grounds, inter alia, that (1) USPS exercised its discretion in determining under what conditions the

mail was to be transported by private contract carriers such as Fazi's employer, thus exempting the government from liability under the FTCA's "discretionary function" doctrine, and (2) USPS had no duty to protect Fazi from injury by third persons. On appeal, Fazi challenges each of the district court's rulings. For the reasons below, we affirm.

I. BACKGROUND

The pertinent events are not in dispute. In 1984, Fazi was employed by S.J. Fazi, Inc. ("Fazi Inc."), a firm owned by his father. Fazi Inc. had contracted with USPS to carry mail between Buffalo, New York, and Rochester, New York. On April 19, 1984, Fazi was driving a Fazi Inc. truck from Buffalo to Rochester, carrying United States mail, including registered mail. As Fazi drove up a highway on-ramp, he was stopped by armed robbers blocking his path. The robbers bound Fazi's hands and feet, causing him injury, drove him and the truck to a secluded spot, and made off with the registered mail.

After exhausting his administrative remedies by unsuccessfully presenting a claim for injuries to USPS as required by the FTCA, see 28 U.S.C. Sec. 2675(a), Fazi commenced the present action against the government. He alleged that he had suffered psychic and physical injuries as a result of the negligent failure of USPS employees to provide him with a secure route and to take appropriate measures to protect him. He sought $3,000,000 in damages.

As discussed in greater detail in Part II.A. below, under USPS rules and regulations, senders of registered mail are required to declare the full value of the items sent. For these purposes, negotiable instruments, described as instruments payable to bearer and stock certificates endorsed in blank, are to be declared at market value. Nonnegotiable instruments, such as registered bonds, checks, wills, deeds, and abstracts, are to be declared as having no value, or, if postal insurance coverage is desired, the replacement cost is to be declared. When registered mail has an aggregate declared value above a certain level--$250,000 in some circumstances--the regulations require that shipments via surface transportation receive an escort by a postal police officer, or if such an officer is not available, by a postal employee who has experience in handling registered mail. The escort in such circumstances is to attend closely to the security of the shipment.

Fazi contended that these rules were applicable to the shipment he carried on April 19, 1984, because it included jewelry and other valuables with total declared values in excess of $50,000, plus blank American Express traveler's checks whose face value totaled $220,500. He contended that, in light of the value of the shipment, USPS violated its rules principally by failing to provide him with a secure route and a security escort.

Following a period of discovery, the government moved for summary judgment dismissing the complaint. It contended that as a matter of law (1) the court lacked jurisdiction because the conduct complained of fell within the discretionary function exception of the FTCA, (2) USPS owed no duty to Fazi to protect him from injury by third persons, and (3) the assault and robbery in question were unforeseeable. In support of its contention that provision of security measures with respect to Fazi's trip were purely discretionary, the government argued that USPS security rules and regulations were inapplicable because American Express, by agreement with USPS, had declared the checks to have no value; hence the value of Fazi's cargo was well under the $250,000 minimum that could trigger the security requirements. It also argued that, under the regulations as properly interpreted, the nature of the shipment made the $250,000 minimum inapplicable and that the applicable minimum to trigger security requirements was in fact $500,000. In support of its contention that USPS had no duty to protect Fazi, the government pointed out that the carriage contract obligated Fazi Inc. and its employees to "protect the mail from loss, depredation, or damage"; it did not provide that In a Decision and Order dated September 11, 1990 ("Decision"), the district court granted the government's motion, finding merit in each of its arguments. The court ruled that, in light of the terms of the carriage contract, the government had no duty to guard Fazi against harm from third parties. It also ruled that the robbery of Fazi was not foreseeable, given "that this is the only highway postal robbery of its kind on record in this district, either before or since." Id. at 9. Finally, the court concluded that it had been within USPS's discretion not to provide an escort to Fazi on his April 19, 1984 trip and that the claim was thus barred by the FTCA:

USPS was to protect Fazi Inc. or its employees. In support of its contention that the robbery was unforeseeable, the government presented the affidavit of a postal inspector to the effect that the robbery of Fazi was the only highway postal robbery of its kind on record in the Western District of New York, though there had been two surreptitious, nonviolent thefts by postal service employees from mails carried on the same route in December 1971 and January 1972.

Clearly, USPS exercised discretion in determining under what conditions the mail was to be transported by this private contract carrier. Circumstances of the contract, the route, schedule and protections provided were all determined by discretionary acts of USPS personnel. Clearly whether to provide protection to contract carriers is not mandated by postal regulations but is, at best, discretionary.

Decision at 11.

Judgment was entered dismissing the complaint, and this appeal followed.

II. DISCUSSION

On appeal, Fazi contends that the judgment should be reversed because (1) the FTCA's discretionary function exception was inapplicable, (2) the government owed Fazi a duty to adhere to USPS rules designed to protect the mail and its carriers from harm, and (3) the robbery that resulted in Fazi's injuries was a foreseeable consequence of USPS's breach of its duty. We reject the first and second of these contentions, and hence need not address the third.

A. Discretionary Function

The FTCA, a limited waiver of the United States's sovereign immunity, generally authorizes suits against the government for damages

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. Sec. 1346(b); see also id. Sec. 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances...."). This waiver is subject to a number of exceptions, one of which is that the government has not consented to be sued on

[a]ny 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 or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. Sec. 2680(a). If a claim falls within this exception, the court lacks jurisdiction to entertain the claim. See, e.g., Dalehite v. United States, 346 U.S. 15, 30-36, 73 S.Ct. 956, 965-966, 97 L.Ed. 1427 (1953).

The discretionary function exception precludes claims based on decisions at the policy or planning level. Decisions at this level include decisions as to whether or not to adopt regulations and as to the content of such regulations. See, e.g., United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814-20, 104 S.Ct. 2755, 2764-68, 81 L.Ed.2d 660 (1984); see also Caban v. United States, 671 F.2d 1230, 1233 (2d Cir.1982) (exception protects against tort if a regulation allows the employee discretion, the very existence of the regulation creates a strong presumption that a discretionary act authorized by the regulation involves consideration of the same policies which led to the promulgation of the regulations.

                challenges to decisions based on political practicability or economic expediency).  In addition, the discretionary function exception bars claims based on day-to-day management decisions if those decisions require judgment as to which of a range of permissible courses is wisest.  United States v. Gaubert, --- U.S. ----, 111 S.Ct. 1267, 1275, 113 L.Ed.2d 335 (1991).  When there are government

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