Shrieve v. U.S.

• Decision Date: 02 September 1998
• Docket Number: No. 5:98-CV-522.,5:98-CV-522.
• Citation: 16 F.Supp.2d 853
• Parties: Judith SHRIEVE, Individually and as Administratrix of the Estate of Emerson Shrieve, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Ohio

16 F.Supp.2d 853

Judith SHRIEVE, Individually and as Administratrix of the Estate of Emerson Shrieve, Plaintiff, v. UNITED STATES of America, Defendant.

No. 5:98-CV-522.

United States District Court, N.D. Ohio, Eastern Division.

September 2, 1998.

COPYRIGHT MATERIAL OMITTED

Jeffrey H. Friedman, Friedman, Domiano & Smith, Cleveland, OH, for Plaintiff.

Steven J. Paffilas, Office of the U.S. Attorney, Cleveland, OH, for United States Postal Service, United States of America, Defendants.

OPINION AND ORDER

GWIN, District Judge.

On July 13, 1998, the defendant federal government filed a motion to dismiss the plaintiff's wrongful death suit [Doc. 14]. The defendant argues the plaintiff's wrongful death suit against the federal government is stopped by the doctrine of sovereign immunity. On August 18, 1998, the Court granted the plaintiff leave to file an amended complaint. The amended complaint clarifies that the United States, and not the United States Postal Service, is the party defendant in this action. That change is not enough to prevent the Court from considering the merits of the government's motion pursuant to Fed. R.Civ.P. 12(b)(1).

In ruling on this motion, the Court must determine whether the Postal Service's designation of curbside mail delivery for only one side of a residential roadway constitutes a discretionary function or duty. If the designation is a discretionary function of the Postal Service, then sovereign immunity stops this wrongful death suit.

For the following reasons, the Court will grant the government's motion to dismiss as this Court lacks subject matter jurisdiction over this cause of action.

I. Procedural history

Plaintiff is the duly appointed administratrix of the estate of Emerson Shrieve, her late husband. She brings this wrongful death and survivorship action under the Federal Tort Claims Act ("FTCA" or "Act"), 28 U.S.C. § 1346(b) and § 2671 et seq. Plaintiff Judith Shrieve is now a resident of New York. At those times relevant to this lawsuit, Shrieve was a resident of Streetsboro, Ohio. Shrieve seeks $1,750,000 in compensatory damages.

II. Factual background

The United States Postal Service maintained mailboxes on State Route 303, opposite the residence side of the street. This requires postal patrons to cross State Route 303 to obtain their mail. Plaintiff claims the Postal Service negligently placed mailboxes on the opposite side of the street from the decedent's residence. The Postal Service delivered the mail at such late hours, the plaintiff claims, that residents in that area had to cross the street in the dark in order to retrieve their mail. Further, plaintiff claims the Postal Service was aware of the problem as the City of Streetsboro had requested the Postal Service reposition mailboxes on the residents' side of the street.

Near December 20, 1996, plaintiff's decedent, Emerson Shrieve, and his wife, Plaintiff Judith Shrieve, lived at 993 S.R. 303, in Streetsboro, Ohio. There were no lights on State Route 303 and the speed limit was 45 miles per hour.

On December 20, 1996, at approximately 5:45 p.m., plaintiff's decedent crossed State Route 303 to retrieve his mail, which had just arrived. As plaintiff's decedent attempted to cross State Route 303 to retrieve his mail, two westbound vehicles struck and killed him. Plaintiff filed a claim with the Postal Service before filing suit in federal court.

III. Motion to dismiss

When subject matter jurisdiction is challenged under Fed.R.Civ.P. 12(b)(1), the plaintiff has the burden of proving that the Court has jurisdiction over the cause of action. Madison-Hughes v. Shalala, 80 F.3d 1121, 1130 (6th Cir.1996); Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986). In ruling on such a motion, the district court may resolve factual issues when necessary to resolve its jurisdiction. Madison-Hughes, 80 F.3d at 1130; Rogers, 798 F.2d at 918.

A Rule 12(b)(1) dismissal for lack of subject matter jurisdiction is appropriate if the Defendant United States qualifies for the discretionary function exception under the Federal Tort Claims Act. Rich v. United States, 119 F.3d 447, 449 (6th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998).

IV. Federal Tort Claims Act

The Federal Tort Claims Act is the exclusive waiver of sovereign immunity for actions sounding in tort against the United States, its agencies, and its employees acting within the scope of their employment. See 28 U.S.C. § 2679. See also Arbour v. Jenkins, 903 F.2d 416, 419 (6th Cir.1990).

The Act generally authorizes suits against the United States 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. § 1346(b).

The Act includes a number of exceptions to this broad waiver of sovereign immunity. The exception relevant to this case provides that no liability shall lie for

[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. § 2680(a).

Two conditions must be met for the discretionary function or duty exception to apply. Rich, 119 F.3d at 450. A court must find under the first condition that the action involved was a matter of choice for the federal employee. Id. "[C]onduct cannot be discretionary unless it involves an element of judgment or choice." Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). This first condition means that the discretionary function exception should not apply if there is a federal statute, regulation, or policy specifically prescribing a course of conduct or action for the federal employee. If there is no such prescription, the employee must exercise judgment and some protection should be provided for this exercise. Rich, 119 F.3d at 450.

Assuming the first condition is met, a second condition also must be met for the discretionary function exception to apply. "[A] court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. The Supreme Court of the United States has explained the logic of this second condition. "Congress wished to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). "In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment." Rich, 119 F.3d at 450 (quoting Berkovitz, 486 U.S. at 537, 108 S.Ct. 1954).

If the challenged conduct is of the nature and quality that Congress intended to protect, then the discretionary function exception applies even if the decision maker acted negligently. See Rosebush v. United States, 119 F.3d 438, 442 (6th Cir.1997); Myslakowski v. United States, 806 F.2d 94, 97 (6th Cir.1986), cert. denied, 480 U.S. 948, 107 S.Ct. 1608, 94 L.Ed.2d 793 (1987). If a case falls within the discretionary function exception, the court lacks subject matter jurisdiction. Rosebush, 119 F.3d at 441.

V. Judgment or choice

Plaintiff alleges that the Postal Service's placement of mailboxes on the side of State Route 303 opposite from the residence she had shared with her husband was negligent and the direct and proximate cause of the decedent's death.

The Sixth Circuit directs that the Court first must determine whether the act or omission under challenge here "violated a mandatory regulation or policy that allowed no judgment or choice." It is the governing administrative policy, not the agency's knowledge of danger, that determines if "conduct is mandatory for purposes of the discretionary function exception." Rosebush, 119 F.3d at 441-42.

At the time of the accident, the Kent, Ohio, Post Office, and Matthew Smith, Jr., as its postmaster, was responsible for the delivery of mail on State Route 303 in Streetsboro, Ohio. For an indefinite period of years extending back until at least 1992, the Postal Service provided curbside mail delivery service to localities on State Route 303 in Streetsboro only along the eastbound side of the roadway.

It was Postmaster Smith's responsibility to determine what mode of delivery, and what configuration of delivery routes, best met the needs of the Postal Service and its customers. On at least one occasion prior to the accident, Postmaster Smith reviewed the delivery route that served State Route 303 in Streetsboro. He weighed the efficiency, service and numerous safety concerns of the route, and determined that mail delivery should continue only on the eastbound side of the roadway.

Available modes of daily mail delivery are set forth in the Postal Operations Manual ("POM") at Subpart 631. For residential areas, the delivery options are curbside, sidewalk, or central delivery. Subpart 631.31. The only other postal regulations that address the configuration of delivery routes are contained in the Management Delivery Services Handbook, in which Subparts 141, 241, and 242 address the need for delivery managers to continually insure that delivery routes are configured so that delivery is accomplished as efficiently as possible.

POM Subpart 631.32 provides that curbside delivery can be provided when a letter carrier can safely and conveniently serve mail boxes and customers have reasonable and safe access to the...