Lopez v. U.S.

• Decision Date: 21 July 2004
• Docket Number: No. 03-2131.,03-2131.
• Citation: 376 F.3d 1055
• Parties: Glendean LOPEZ and Kelley Marlow, as co-guardians of Michelle R. Williams, an incapacitated adult, and Carroll E. Nowak, as parent and next friend of Ashley Nowak, a minor, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, and John Doe, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

376 F.3d 1055

Glendean LOPEZ and Kelley Marlow, as co-guardians of Michelle R. Williams, an incapacitated adult, and Carroll E. Nowak, as parent and next friend of Ashley Nowak, a minor, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee, and John Doe, Defendant.

No. 03-2131.

United States Court of Appeals, Tenth Circuit.

July 21, 2004.

Appeal from the United States District Court for the District of New Mexico, C. Leroy Hansen, J Richard J. Valle, O'Brien & Houliston (Richard L. Kraft, The Kraft Law Firm, LLP, with him on the briefs), for Plaintiffs-Appellants.

Cynthia L. Weisman, Assistant United States Attorney (David C. Iglesias, United States Attorney, Elizabeth M. Martinez, Assistant United States Attorney, with her on the brief), Albuquerque, NM, for Defendant-Appellee.

Before EBEL, KELLY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

In August 2000, plaintiffs were driving along Sacaton Street in Chaves County New Mexico. At the intersection of U.S. Highway 70, their vehicle collided with a pickup truck, resulting in significant injury to driver Michelle Williams, who remains in a coma. Plaintiffs allege that a row of mailboxes on the shoulder of the highway obstructed their view of the intersection as they entered the highway from the crossroad and was the proximate cause of the injuries sustained in the accident.

In May 2002, plaintiffs filed their suit in district court under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80. They alleged that the United States Postal Service (USPS) negligently failed to take proper account of the safety of the driving public when locating the mailboxes. In April 2003, the district court dismissed plaintiffs' action for lack of subject matter jurisdiction, holding that the actions of the USPS were discretionary functions exempt from FTCA liability pursuant to 28 U.S.C. § 2680(a). We review that ruling de novo. Duke v. Dep't of Agric., 131 F.3d 1407, 1409 (10th Cir.1997).

I

The FTCA immunizes instrumentalities of the federal government from tort liability based on the performance of "a discretionary function or duty on the part of a federal agency or an employee of the Government." 28 U.S.C. § 2680(a). This restriction is jurisdictional. Elder v. United States, 312 F.3d 1172, 1176 (10th Cir.2002), quoting Aragon v. United States, 146 F.3d 819, 823 (10th Cir.1998) ("The discretionary function exception poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction.") (internal quotation marks omitted). The exception applies "whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Accordingly, the question of negligence is irrelevant to the applicability of the discretionary function exception. Elder, 312 F.3d at 1176; Aragon, 146 F.3d at 822.

The Supreme Court has set forth a two-part test to determine whether conduct is encompassed by the discretionary function exception and thereby immunized from FTCA liability. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). We must first consider whether the government function in question was "discretionary," meaning whether it was "a matter of judgment or choice for the acting employee." Id. If we find that it was, we must then consider whether it was the type of decision the discretionary function exception was designed to protect, namely one requiring the exercise of judgment based on considerations of public policy. Id. at 536-37, 108 S.Ct. 1954.

The Court clarified the second prong of the Berkovitz test in United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). When making the second inquiry, we are not to consider the subjective intent of the particular actor or whether he or she was animated by a concern for public policy. Id. Rather, we must consider whether the nature of the actions taken implicate public policy concerns, or are "susceptible to policy analysis." Id. We need not find that a government employee made a conscious decision regarding policy considerations in order to satisfy the second prong of the Berkovitz test. Kiehn v. United States, 984 F.2d 1100, 1105 (10th Cir.1993).

II

In the case before us, plaintiffs contend first that USPS regulations and administrative policy remove discretion from Post Office employees to situate the mailboxes at the location in question because mailboxes "must be placed to conform to state laws and highway regulations." Postal Operations Manual § 632.524. This requirement is reiterated in the Domestic Mail Manual, which states that mailboxes must be placed "subject to state laws and regulations." Domestic Mail Manual § 2.7. Plaintiffs correctly argue that these regulations demand that applicable state highway safety regulations be followed when determining mailbox locations. Therefore, if mailboxes are placed in violation of state law or regulations, the USPS is compelled by its own regulations to relocate them. This is a nondiscretionary mandate.

The New Mexico Administrative Code prohibits any encroachments that present "a danger to the health, safety, or welfare of the motoring public, or which interfere with the operations of the [State Highway] Department." N.M. Admin. Code tit. 18, § 20.5.9.2. The Code deems a mailbox to be an "encroachment." Id. § 20.5.7.2. Plaintiffs contend that the mailboxes at issue here constituted a danger within the meaning of the Code. It follows, they argue, that the placement of the mailboxes violated Post Office regulations and falls outside of the FTCA's discretionary function exception.

However, we agree with the district court that the Code does not remove discretion from the postal service with regard to the location of the mailboxes. As an initial matter, it is far from clear that § 20.5.9.2, standing alone, is sufficiently clear that it could be said to remove discretion from federal officials with regard to the placement of mailboxes. Presumably, all obstructions present some risk, however small, to the public, and determinations regarding the tolerable degree of risk could be said to involve the exercise of discretion. See Berkovitz, 486 U.S. at 545, 108 S.Ct. 1954 ("[T]he question turns on whether the manner and method of determining compliance with the [mandatory] safety standards at issue involve agency judgment of the kind protected by the discretionary function exception."); Duke, 131 F.3d at 1410 (noting that Forest Service Manual provisions establishing a policy of protecting visitors' safety were "not specific enough to eliminate the Forest Service employees' choice regarding how to act in particular circumstances"). In light of the procedures specified for enforcement of this section of the New Mexico Code, however, we need not rest on that ground. New Mexico State Highway Department (SHD) regulations vest authority in the SHD to determine whether any roadside condition constitutes an unlawful encroachment or a hazardous obstruction. See N.M. Admin. Code tit. 18, § 20.5.11.1 ("An unlawful encroachment... shall be identified by the Department...."); id. § 20.5.13.2 ("The determination of whether or not an obstruction is hazardous shall be made by the District Engineer...."). Normally, if the SHD finds that an object is an unlawful encroachment, it must provide written notice specifically identifying the encroachment. See id. § 20.5.11. Only then is the owner of the encroachment required to remove it. Id. § 20.5.11.2.3. There is an exception when the SHD determines that an encroachment "jeopardize[s] public safety by either creating an unsafe condition or significantly hindering the efficient movement of traffic." Id. § 20.5.7.3. Then it is considered a hazardous obstruction and may be removed without notice. The record shows that no finding of encroachment was ever made with regard to the mailboxes in question; no written notice of encroachment was ever sent to the Postal Service, nor did the SHD ever treat the mailboxes as a hazardous obstruction and remove them summarily. Where, as here, the SHD has not identified an encroachment as violating the Code, and has not issued the required notification nor removed the encroachment, there has been no violation of a nondiscretionary duty.

Plaintiffs note that on November 25, 1992, SHD employee Tim Basler sent a letter to Post Office employee Robert Pantoja, expressing his concern that "[e]xisting single mailbox locations are causing significant sight restrictions for exiting movements from Sacaton Street and illegal vehicle movements from the postal patrons utilizing these mailboxes." App. 189. He encouraged the Post Office to relocate them "directly west to our west right-of-way." Id. Nowhere in the letter, however, did Basler declare the mailboxes to be an unlawful encroachment or a hazardous obstruction. It is hardly conceivable that a state employee would complain about the Postal Service's failure to comply with state law without citing that law or mentioning that the Postal Service was in violation. Without notification by the SHD that the mailboxes were positioned illegally, the USPS was empowered to exercise its discretion and to determine a suitable location for its mailboxes. In so doing, it was free to take Basler's expression of concern for sight obstruction into account as one of the many considerations that inform the judgment of where to situate a mailbox.

III

Plaintiffs also argue that the placement of the mailboxes was not the type of decision the discretionary function exception was designed to protect because it was a mundane decision not based on "considerations of public policy." Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954. Specifically, plaintiffs submit that the placement and maintenance of mailboxes along a given mail-delivery route is an ordinary decision unaffected by any policy analysis other than the need to...