Jonatan Pornomo v. United States , 814 F.3d 681 ( 2016 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2391
JONATAN PORNOMO, Administrator of the Estate of Sie Giok
Giang, Deceased,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:14-cv-00307-JRS)
Argued: December 8, 2015 Decided: February 25, 2016
Before AGEE and HARRIS, Circuit Judges, and Theodore D. CHUANG,
United States District Judge for the District of Maryland,
sitting by designation.
Affirmed by published opinion. Judge Chuang wrote the opinion,
in which Judge Agee and Judge Harris joined.
ARGUED: Philip L. Bradfield, THE BRADFIELD INJURY LAW FIRM, PLC,
Newport News, Virginia, for Appellant. Megan Barbero, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Mark B. Stern, Appellate Staff, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia; Paul M. Geier, Assistant General Counsel for
Litigation, Paula Lee, Trial Attorney, Abel L. Smith, III,
Assistant Chief Counsel, FMCSA General Law Division, Sabrina E.
Redd, Attorney Advisor, FMCSA General Law Division, Federal
Motor Carrier Safety Administration, UNITED STATES DEPARTMENT OF
TRANSPORTATION, Washington, D.C., for Appellee.
2
CHUANG, District Judge:
On May 31, 2011, Sie Giok Giang, a passenger on a Sky
Express interstate bus traveling from North Carolina to New
York, was killed when the driver fell asleep at the wheel and
ran the bus off the side of a Virginia highway. About seven
weeks before the crash, Sky Express had been given an
“unsatisfactory” safety rating by the Federal Motor Carrier
Safety Administration (“FMCSA”), a rating that ordinarily would
require a passenger motor carrier to cease operations after 45
days. The fatal crash occurred after that 45-day period, but
during an extension period granted by the FMCSA that allowed Sky
Express to remain on the road for an additional 10 days. At
issue is whether the discretionary function exception to the
Federal Tort Claims Act (“FTCA”) bars an FTCA claim against the
FMCSA for allowing Sky Express to continue to operate during
those 10 days. The district court concluded that, pursuant to
that exception, it lacked subject matter jurisdiction and
dismissed the case. We affirm.
I.
A.
The present dispute stems from the operation of the federal
regulatory scheme for monitoring the safe operation of
interstate passenger motor carriers. Congress has charged the
Secretary of Transportation (“the Secretary”) to “determine
3
whether an owner or operator is fit to operate safely commercial
motor vehicles.” 49 U.S.C. § 31144(a)(1) (2012). In turn, the
Secretary has delegated this authority to the FMCSA. 49 C.F.R.
§ 1.87(f) (2015). To carry out this mandate, the FMCSA has
promulgated regulations that provide for compliance reviews of
commercial motor carriers to ensure their safe operation. 49
C.F.R. §§ 385.3, 385.9. Based on a compliance review, a
commercial motor carrier is given a safety rating of
“satisfactory,” “conditional,” or “unsatisfactory.” Id. § 385.3.
A “satisfactory” rating means that the motor carrier has
adequate safety management controls in place. Id. A
“conditional” rating means that the motor carrier does not have
adequate safety management controls in place and that the lack
of those controls “could result” in safety violations. Id. An
“unsatisfactory” rating means that the motor carrier “does not
have adequate safety management controls in place” and that the
lack of safety management controls “has resulted” in safety
violations. Id.; see 49 C.F.R. § 385.5 (delineating salient
safety violations).
If a commercial motor carrier receives an “unsatisfactory”
rating, it does not have to cease operation immediately.
Instead, for passenger carriers, an “unsatisfactory” rating
becomes final “beginning on the 46th day after the date of the
FMCSA notice of proposed ‘unsatisfactory’ rating,” 49 C.F.R.
4
§ 385.13(a)(1), at which point the carrier may not operate until
the owner or operator is found to be “fit,” 49 U.S.C.
§ 31144(c)(2). The carrier may seek an upgrade of its rating by
submitting to the FMCSA a written description of corrective
actions it has taken and documentation of those changes. 49
C.F.R. § 385.17(a)-(c). A request for an upgrade does not toll
the 45-day provisional period. However, in 2011, when the
events at issue in this case occurred, the regulations provided
that “[i]f the motor carrier has submitted evidence that
corrective actions have been taken . . . 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.” 49 C.F.R.
§ 385.17(f)(2011).
In 2012, the FMCSA rescinded this 10-day extension
provision to make the regulations “consistent with the policy
and the statutory language” of 49 U.S.C. § 31144(c)(2) and (4).
77 Fed. Reg. 64,759, 64,759 (Oct. 23, 2012). 49 U.S.C.
§ 31144(c)(2) states that “[w]ith regard to owners or operators
of commercial motor vehicles designed or used to transport
passengers, an owner or operator who the Secretary determines is
not fit may not operate in interstate commerce beginning on the
46th day after the date of such fitness determination and until
the Secretary determines such owner or operator is fit.” The
5
statute provides the Secretary with discretion to extend
operations for some carriers “for an additional 60 days,” but
expressly excludes passenger carriers from that provision. 49
U.S.C. § 31144(c)(4).
B.
In 2011, Sky Express, Inc., a commercial motor carrier
based in Charlotte, North Carolina, operated buses engaged in
interstate passenger transportation. On April 7, 2011, the
FMCSA conducted a safety compliance review of Sky Express and
gave the carrier an “unsatisfactory” rating. On April 12, 2011,
the FMCSA sent Sky Express written notice of that rating,
explaining that the rating would become final in 45 days, on May
28, 2011, unless Sky Express took “the necessary steps to
improve the rating to conditional or satisfactory.” J.A. 35.
On May 11, 2011, Sky Express submitted a Request for Change to
Proposed Safety Rating in which it detailed efforts it had taken
to resolve the safety issues identified in the April 7, 2011
compliance review.
After reviewing Sky Express’s submission, the FMCSA
concluded on May 12, 2011 that Sky Express had failed to provide
adequate evidence that it had corrected all of the safety
violations and thus decided to conduct a follow-up compliance
review. In a May 13, 2011 letter from FMCSA Field Administrator
Darrell Ruban to Sky Express, the FMCSA informed Sky Express
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that it was “denying” Sky Express’s request for a change in its
rating because the submitted materials did not “provide
sufficient evidence that the violations cited in the compliance
review have been corrected.” J.A. 52. The letter then notified
Sky Express that the FMCSA would conduct a follow-up compliance
review before June 7, 2011, during which Sky Express would need
to provide additional documentation for review by safety
investigators. In a second letter sent that same day, the FMCSA
informed Sky Express that in order to provide additional time to
conduct the follow-up compliance review, the deadline for Sky
Express’s “unsatisfactory” rating to become final had been
extended by 10 days, from May 28, 2011 to June 7, 2011.
During that 10-day extension period, on May 31, 2011 at
approximately 4:45 a.m., a Sky Express bus traveling northbound
on Interstate 95 crashed in Caroline County, Virginia after the
driver fell asleep at the wheel and allowed the bus to go off
the road and down an embankment. The bus flipped over and
rolled upside down, and Sie Giok Giang, a passenger, suffocated
to death when her head became trapped between the collapsed bus
roof and the top of her seat.
C.
On April 28, 2014, Appellant Jonatan Pornomo, Giang’s adult
son and the administrator of Giang’s estate, filed a wrongful
death action against the United States pursuant to the Federal
7
Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2012), in the
United States District Court for the Eastern District of
Virginia, Richmond Division. Pornomo alleged that the FMCSA had
been negligent in issuing the 10-day extension because the
language of 49 U.S.C. § 31144(c) does not permit any extension
of the 45-day deadline, such that the regulation authorizing
such an extension, 49 C.F.R. § 385.17(f), was invalid. Pornomo
further contended that even if the FMCSA had the authority to
issue an extension under 49 C.F.R. § 385.17(f), the criteria for
issuance of such an extension had not been met.
The United States filed a Motion to Dismiss for Lack of
Subject Matter Jurisdiction, arguing that the district court did
not have jurisdiction over Pornomo’s claim because the issuance
of the 10-day extension was a discretionary act shielded from
suit under the discretionary function exception to the FTCA, and
because Pornomo’s claim that the FMCSA lacked statutory
authority to promulgate and apply 49 C.F.R. § 385.17(f) was a
challenge to the validity of the regulation that, under 28
U.S.C. § 2342(3)(A), could be raised only in the court of
appeals. The Government also argued that subject matter
jurisdiction was lacking because the conduct at issue here did
not constitute a tort under Virginia law.
The district court granted the Motion, holding that the
discretionary function exception applied to the decision to
8
issue the 10-day extension and that the United States therefore
had not waived sovereign immunity for this suit. The court
found that the plain language of 49 C.F.R. § 385.17(f) afforded
the agency discretion to grant an extension. The decision was
“still a discretionary decision” even though the regulation
provided two preconditions, because those preconditions were
“not detailed” or a “safety check list,” but instead required
the application of FMCSA’s “expertise” to determine whether they
had been met. J.A. 14-15. The court then concluded that the
“FMCSA received a detailed, written corrective action plan from
Sky Express but determined, using its judgment, that it needed
more information to verify the contents of the plan.” Id. at
15. It further found that the “FMCSA determined it was unable
to make a final determination concerning Sky Express’ operating
authority registration and therefore granted the extension to
provide additional time to conduct a follow-up compliance
review.” Id. The district court thus dismissed the case for
lack of subject matter jurisdiction. The district court did not
directly address Pornomo’s argument that 49 C.F.R. § 385.17(f)
was invalid because the enabling statute does not permit any
extensions for passenger carriers. It also did not address the
Government’s argument that the FMCSA’s conduct did not
constitute a tort under Virginia law.
9
Pornomo appealed. We have jurisdiction under 28 U.S.C.
§ 1291.
II.
Pornomo first claims that the district court erred in
dismissing the Complaint because the facts related to subject
matter jurisdiction are intertwined with the facts central to
the merits of his claim. Because Pornomo did not make this
argument below, it is waived. Robinson v. Equifax Information
Services, LLC, 560 F.3d 235, 242 (4th Cir. 2009) (“Absent
exceptional circumstances . . . we do not consider issues raised
for the first time on appeal.”) (quoting Volvo Const. Equip. N.
Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 603 (4th Cir. 2004));
Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993) (“As this
court has repeatedly held, issues raised for the first time on
appeal generally will not be considered.”).
Pornomo also contends that the district court erred in (1)
finding that the issuance of the 10-day extension was a
discretionary act, such that the court lacked subject matter
jurisdiction pursuant to the discretionary function exception to
the FTCA; and (2) failing to find that 49 C.F.R. § 385.17(f)
(2011) was invalid because its provision authorizing a 10-day
extension exceeded the agency’s statutory authority. We address
these arguments in turn.
10
A.
The district court dismissed Pornomo’s complaint for lack
of subject matter jurisdiction because it found that the United
States had not waived sovereign immunity. See Medina v. United
States, 259 F.3d 220, 223-24 (4th Cir. 2001) (“[T]he
Government’s potential immunity from suit affects our
jurisdiction[.]”). We review a district court’s dismissal for
lack of subject matter jurisdiction de novo. Suter v. United
States, 441 F.3d 306, 310 (4th Cir. 2006). In determining
whether subject matter jurisdiction exists, the reviewing court
is not limited to the grounds relied on by the district court,
but rather “may affirm on any grounds apparent from the record.”
Id.B.
“As a sovereign, the United States is immune from all suits
against it absent an express waiver of its immunity.” Welch,
Jr. v. United States, 409 F.3d 646, 650 (4th Cir. 2005) (citing
United States v. Sherwood, 312 U.S. 584, 586 (1941)). Because
the default position is that the federal government is immune to
suit, any waiver of that immunity “must be ‘strictly construed
. . . in favor of the sovereign.’” Id. at 650-51 (quoting Lane
v. Pena, 518 U.S. 187, 192 (1996)) (ellipses in original).
Pornomo’s tort claims are brought under the Federal Tort
Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. The FTCA does not
11
create a new cause of action; rather, it permits the United
States to be held liable in tort by providing a limited waiver
of sovereign immunity “for injury or loss caused by the
negligent or wrongful act of a Government employee acting within
the scope of his or her employment.” Medina, 259 F.3d at 223.
The FTCA renders the United States liable for such tort claims
“in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674.
The FTCA contains several exceptions to its waiver of
immunity. In particular, the FTCA’s waiver of sovereign
immunity does not extend to 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
or an employee of the Government, whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a).
To determine whether this discretionary function exception
applies, courts apply a two-part test. The first step is to
decide whether the conduct at issue involves “an element of
judgment or choice” by the employee, rather than, for example,
“when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow.”
Berkovitz v. United States, 486 U.S. 531, 536 (1988). The
second step is to determine whether that judgment “is of the
kind that the discretionary function exception was designed to
12
shield” in that the judgment relates to a governmental action or
decision “based on considerations of public policy.” Id. at
536-37; see Suter, 441 F.3d at 310-11.
If an action is discretionary within the meaning of the
exception, the exception applies “whether or not the discretion
involved be abused.” 28 U.S.C. § 2680(a); United States v.
Gaubert, 499 U.S. 315, 323 (1991) (noting that discretionary
actions are “protected, even if those particular actions were
negligent”). It applies “even if the discretion has been
exercised erroneously” and is deemed to have frustrated the
relevant policy purpose. Holbrook v. United States, 673 F.3d
341, 350 (4th Cir. 2012). “The inquiry is thus whether the
discretion exists, not whether in later litigation it is alleged
to have been abused. Were it otherwise, Congress’ intent to
shield an agency’s discretionary decisions from FTCA lawsuits
would be set at naught.” Id.III.
“[W]hatever else the discretionary function exception may
include, it plainly was intended to encompass the discretionary
acts of the Government acting in its role as a regulator of the
conduct of private individuals.” United States v. S.A. Empresa
de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797,
813-14 (1984). As discussed below, because the FMCSA’s decision
to grant the 10-day extension pursuant to an existing regulation
13
involved an “element of judgment or choice” and was “based on
considerations of public policy,” the discretionary function
exception applies. Berkovitz, 486 U.S. at 536-37.
Pornomo does not dispute that the matter at issue,
government regulators’ safety determinations for commercial
motor vehicles, involves considerations of public policy. See
United States v. Gaubert, 499 U.S. 323, 324 (1991) (stating that
if a regulation “allows a Government agent to exercise
discretion, it must be presumed that the agent’s acts are
grounded in policy when exercising that discretion”). Thus, the
applicability of the discretionary function exception turns on
the first prong: whether the conduct at issue involves an
element of judgment or choice.
The 10-day extension was issued pursuant to a regulation
that states,
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 with 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.
49 C.F.R. § 385.17(f) (2011) (emphasis added). On the face of
the regulation, therefore, the act of granting an extension
requires an exercise of judgment or choice by the FMCSA. The
regulation thus differs markedly from the mandatory provisions
at issue in the cases cited by Pornomo in which regulatory
14
action was deemed nondiscretionary. See Berkovitz, 486 U.S. at
543-44 (finding that the discretionary function exception did
not bar an FTCA claim against a federal agency for licensing
polio vaccine without first receiving mandatory safety data and
determining compliance with safety standards); In re: Sabin Oral
Polio Vaccine Prods. Liab. Litig., 984 F.2d 124, 127 (4th Cir.
1993) (finding that release of a vaccine upon meeting mandatory
safety requirements was a nondiscretionary function).
Pornomo nevertheless argues that the discretionary function
exception does not bar his claim because § 385.17(f) gives the
FMCSA discretion to grant a 10-day extension only if and when
two conditions have been met: (1) the motor carrier has
submitted evidence that corrective actions have been taken; and
(2) the FMCSA cannot make a final determination within the 45-
day period. 49 C.F.R. § 385.17 (2011). Pornomo asserts that
because the first May 13, 2011 FMCSA letter to Sky Express
stated that the company had “failed to demonstrate that adequate
corrective actions have been taken to address the acute and/or
critical violations” and that the agency was “denying” Sky
Express’s request to upgrade its safety rating, J.A. 52, the
FMCSA had already made a final determination as of that date.
Pornomo thus asserts that neither condition was satisfied, such
that the FMCSA was not vested with the discretion referenced in
the regulation.
15
This argument cuts too fine a distinction. “Where there is
room for policy judgment and decision there is discretion.”
Dalehite v. United States, 346 U.S. 15, 36 (1953). In Holbrook,
this Court held that the discretionary function exception barred
an FTCA claim arising from a Federal Aviation Administration
(“FAA”) issuance of an airworthiness certificate. 673 F.3d at
349. The Court determined that a predicate requirement in the
relevant regulation, that an aircraft’s application must include
a certification from the country of manufacture that the
aircraft conformed to its type design and was safe to operate,
afforded discretion to the FAA to “make its own findings”
whether the submitted documentation satisfied that requirement.
Id. Likewise, as the district court noted, 49 C.F.R.
§ 385.17(f) is not a “check list.” J.A. at 105. It leaves it
to the FMCSA to determine whether a carrier’s submission
provides evidence that corrective action has been taken, and
whether the agency has the resources to reach a final decision
within 45 days. Such decisions, which relate to a regulatory
agency’s “implementation of a mechanism for compliance review”
and necessarily require “balancing the objectives sought to be
obtained against such practical considerations as staffing and
funding,” constitute discretionary functions themselves. Varig
Airlines, 467 U.S. at 819-20 (holding that the FAA’s application
of a spot-check system to a particular aircraft was a
16
discretionary function). Discretion thus suffuses 49 C.F.R.
§ 385.17(f) (2011), rather than, as Pornomo would have it,
appearing only after certain mandatory predicates have been
satisfied.
The FMCSA, in fact, exercised this discretion. Although
Pornomo focuses on the FMCSA’s statement in its first May 13,
2011 letter that it was “denying” Sky Express’s request, J.A.
52, an FMCSA internal memorandum dated May 12, 2011 indicates
that the FMCSA had reviewed Sky Express’s submission, found that
it had submitted some evidence of corrective actions, but
concluded that those actions did not address “all violations”
and were “not sufficient to correct the deficiencies discovered
during the compliance review.” J.A. 44. Rather than close the
matter, the FMCSA then determined that it would conduct a
follow-up compliance review “prior to June 7, 2011,” which would
be 10 days after the expiration of the 45-day period. Id. at
44. It then informed Sky Express, in the first May 13 letter,
of the follow-up compliance review and requested that Sky
Express prepare to provide additional documentation “for
examination” at that review. Id. at 53. Thus, the FMCSA made
the judgments that Sky Express had submitted some “evidence that
corrective actions have been taken,” 49 C.F.R. § 385.17 (2011),
and that the FMCSA needed additional time to make a final
determination on Sky Express’s rating.
17
Ultimately, it does not matter whether the FMCSA was
correct in these judgments. The discretionary function
exception applies “whether or not the discretion involved be
abused,” 28 U.S.C. § 2680(a), and “even if the discretion has
been exercised erroneously,” Holbrook, 673 F.3d at 350 (quoting
Gaubert, 499 U.S. at 338 (Scalia, J., concurring in part and
concurring in the judgment)) (rejecting the argument that an
allegedly erroneous determination by an FAA official that a
helicopter conformed to a certificate requirement was not
discretionary). “If it were not so, the protection of § 2680(a)
would fail at the time it would be needed[.]” Dalehite, 346
U.S. at 36. Here, where the FMCSA made judgments on (1) whether
Sky Express had submitted sufficient evidence of corrective
action to warrant a follow-up compliance review and (2) whether
such a review could reasonably and fairly be conducted without
an extension of the 45-day period for establishing fitness, the
FMCSA was exercising discretion within the meaning of the FTCA.
The FMCSA may have taken certain “calculated risks,” but it did
so for a governmental purpose pursuant to a governing
regulation. See Varig Airlines, 467 U.S. at 820 (holding that
the FAA’s alleged negligence in failing to check certain
specific items in the course of certificating a specific
aircraft as part of a spot-check program involved “calculated
risks” but fell “squarely within the discretionary function
18
exception”). The district court thus properly concluded that
the granting of the 10-day extension was a discretionary
decision that could not form the basis of an FTCA claim.
IV.
Pornomo further argues that even if the FMCSA was
authorized by 49 C.F.R. § 385.17(f) to exercise its discretion
to grant a 10-day extension, that regulation was invalid because
the plain and unambiguous language of the underlying statute, 49
U.S.C. § 31144, barred the grant of any such extension.
Pornomo’s argument is essentially a challenge to the validity of
49 C.F.R. § 385.17(f) (2011). As such, it cannot be the basis
of an FTCA claim. As a general matter, “[i]t was not intended
that the constitutionality of legislation, the legality of
regulations, or the propriety of a discretionary administrative
act should be tested through the medium of a damage suit for
tort.” Dalehite, 346 U.S. at 27 (internal quotation mark
omitted); Welch, Jr. v. United States, 409 F.3d 646, 653 (4th
Cir. 2005) (stating that the FTCA does “not provide a venue in
which to challenge the validity of [a] law”). More
specifically, Congress has granted the courts of appeals
exclusive jurisdiction to determine the validity of “all rules,
regulations, or final orders of the Secretary of Transportation
issued pursuant to . . . subchapter III of chapter 311 . . . of
title 49,” which includes 49 U.S.C. § 31144. 28 U.S.C.
19
§ 2342(3)(A). Because Pornomo’s claim that the grant of a 10-
day extension pursuant 49 C.F.R. § 385.17(f) violated 49 U.S.C.
§ 31144 amounts to a challenge to the validity of that
regulation, the district court had no jurisdiction to hear it.
See 28 U.S.C. § 2342(3)(A).
Even if Pornomo could challenge the validity of 49 C.F.R.
§ 385.17(f) in the district court, the court would still lack
jurisdiction over his FTCA claim because the FMCSA’s
promulgation of the regulation was itself a discretionary act.
“[T]here is no doubt that planning-level decisions establishing
programs are protected by the discretionary function exception,
as is the promulgation of regulations by which the agencies are
to carry out the programs.” Gaubert, 499 U.S. at 323. Thus,
the FMCSA’s decision to promulgate 49 C.F.R. § 385.17(f), even
if that decision proved to be an abuse of discretion, would be
shielded by the discretionary function exception. See 28 U.S.C.
§ 2680(a).
Pornomo attempts to circumvent this conclusion by asserting
that 49 C.F.R. § 385.17(f) is so plainly at odds with the
language of 49 U.S.C. § 31144(c)(2) that the promulgation of the
regulation could not have been an act of discretion. In support
of this argument, he marshals 49 U.S.C. § 31144(c)(2), which
requires that passenger carriers stop operating 45 days after
they have been deemed unfit, and § 31144(c)(4), which grants the
20
Secretary discretion to “allow an owner or operator who is not
fit to continue operating for an additional 60 days” if it is
“making a good faith effort to become fit,” but expressly
exempts passenger carriers from that provision. The exclusion
of passenger carriers from the 60-day extension, Pornomo
reasons, must mean that no extension of the 45-day period is
permitted. He also notes that in 2012, the FMCSA rescinded the
10-day extension provision in 49 C.F.R. § 385.17(f) to make the
regulations “consistent with the policy and the statutory
language” of 49 U.S.C. § 31144(c)(2) and (4). 77 Fed. Reg. at
64,759.
Yet Pornomo’s conclusion is by no means certain. As
drafted, 49 U.S.C. § 31144(c)(2) prohibits owners and operators
of commercial passenger carriers from operating under certain
conditions. The statute does not expressly proscribe or
prescribe a particular course of action for the Secretary of
Transportation. Nor does 49 U.S.C. § 31144(c)(4) flatly bar the
FMCSA’s action, because it exempts passenger carriers only from
60-day extensions, not necessarily ones of more modest duration,
such as the one here. See Berkovitz, 486 U.S. at 536 (noting
that a government official lacks judgment or choice for the
purposes of determining whether the discretionary function
exception applies when “a federal statute, regulation, or policy
21
specifically prescribes a course of action for an employee to
follow”) (emphasis added)).
While one may conclude, as the FMCSA itself later did, that
the better reading of these statutory provisions is that 45 days
is a hard deadline for passenger carriers with unsatisfactory
ratings, a better reading is not the same as a necessary one.
Considering that any waiver of sovereign immunity must be
strictly construed, the FMCSA’s decision to promulgate a
regulation permitting 10-day extensions for passenger carriers
was a permissible exercise of judgment subject to the FTCA’s
discretionary function exception and thus did not waive
sovereign immunity. See Gaubert, 499 U.S. at 323. The district
court therefore correctly dismissed the case for lack of subject
matter jurisdiction.
Having reached this conclusion, we need not address the
Government’s argument that the FMCSA’s conduct does not
constitute a tort under Virginia law.
V.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
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