1 2 3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON ‘6 AT SEATTLE
7 ELLIE BONEBRAKE, 8 Plaintiff, 9 v. C19-1639 RAJ 10 UNITED STATES OF AMERICA: ORDER and UNITED STATES POSTAL 1 SERVICE, D Defendants. 13 THIS MATTER comes before the Court on a motion for summary judgment, 14 | docket no. 25, brought by defendants United States of America and the United States 15 || Postal Service (collectively, “United States”). Neither side requested oral argument. 16 || Having reviewed all papers filed in support of, and in opposition to, the motion, the Court 17 || enters the following order. 18 | Background 19 Plaintiff Ellie Bonebrake asserts a negligence claim against the United States in 20 || connection with her slip-and-fall while attempting to retrieve her mail. The underlying 21 || facts are undisputed. On January 8, 2017, which was a Sunday, plaintiff, who is currently 22 || 81 years old, see Bonebrake Dep. at 6:4—5, Ex. B to Mumford Decl. (docket no. 29-2), 23 ORDER - 1
| || went to the post office in Blaine, see Bonebrake Dep. at 27:2~4, Ex. C to Mumford Decl. 2 || (docket no. 29-3). While walking through the lobby toward her post office box, plaintiff 3 | slid on an accumulation of ice melt. See Bonebrake Dep. at 33:18-34:19, Ex. E to 4 | Mumford Decl. (docket no. 29-5).! As a result of her fall, plaintiff suffered a fracture of 5 | her patella, requiring surgery. Pla.’s Resp. at 3 (docket no. 28). 6 The United States moves for summary judgment on two grounds: (i) lack of 7 || subject matter jurisdiction because the Blaine Postmaster’s decision to keep the lobby 8 | open on a 24-hour basis (and not clean or maintain it during non-business hours) was 9 || discretionary and therefore not conduct as to which sovereign immunity has been waived 10 || under the Federal Tort Claims Act (“FTCA”); and (ii) even if the Court has subject 11 | matter jurisdiction, plaintiff cannot prevail on a negligence theory because she cannot 12 | prove that Blaine postal employees had actual or constructive notice of the snow or ice 13 | melt upon which she slipped. The Court agrees with the first contention and therefore 14 || does not address the second argument. 15 | Discussion 16 The Court treats the pending motion as being brought pursuant to Federal Rule of 17 | Civil Procedure 12(b)(1). The United States presents a facial, rather than a factual, 18 19 ' According to plaintiff and her son, garbage was also strewn across the lobby floor. Bonebrake 20 Dep. at 74:15-18, Ex. A to Mumford Decl. (docket no. 29-1); Schamel Decl. at § 4 (docket no. 30). Plaintiff had previously complained to postal employees about the garbage issue, which 21 apparently resulted from the absence of trash bins. See Bonebrake Dep. at 73:16-74:25, Ex. A to Mumford Decl. (docket no. 29-1). Plaintiff, however, made clear in her deposition that she did 22 || not slip on any garbage. Id. at 77:19-21. 23 ORDER - 2
| || jurisdictional challenge. A facial attack asserts that the allegations of the complaint are 2 || insufficient on their face to invoke federal jurisdiction, while a factual challenge disputes 3 || the truth of the allegations in the complaint that would otherwise support subject-matter 4 | jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 5 || With respect to a facial challenge under Rule 12(b)(1), a plaintiff is entitled to the same 6 || safeguards that apply to a Rule 12(b)(6) motion to dismiss for failure to state a claim. 7 | See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). The factual allegations of 8 | the complaint are presumed to be true, and the pleading is construed in the light most 9 || favorable to the non-moving party. See Does v. Univ. of Wash., No. C16-1212, 2016 10 || WL 5792693, at *3-4 (W.D. Wash. Oct. 4, 2016). 1] The waiver of sovereign immunity set forth in the FTCA does not extend to any 12 | claim “based upon the exercise or performance or the failure to exercise or perform a 13 | discretionary function or duty on the part of a federal agency or an employee of the 14 | Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). 15 || This FTCA exception “covers only acts that are discretionary in nature,” involving “an 16 || element of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322 (1991). 17 || The appropriate inquiry concerns the nature of the conduct, not the status of the actor. Id. 18 || Gaubert has been understood as establishing a two-part test: the first prong asks whether 19 || the federal agency’s or employee’s behavior was discretionary in nature, and if so, the 20 || second prong evaluates whether the exercise of discretion was inherently grounded in 21 || socia!, economic, or political policy considerations. See, e.g., Hogan v. U.S. Postmaster 22 || Gen., 492 F. App’x 33, 34 (11th Cir. 2012); see also Gaubert, 499 U.S. at 323. 23 ORDER - 3
1 The parties here do not disagree concerning the applicable standard. Rather, they 2 || battle over how to define the conduct at issue. The United States contends that the action 3 | being challenged by plaintiff is the Postmaster’s discretionary decision to keep the lobby 4 || area of the Blaine post office open to the public during hours when the retail area is 5 || closed and postal employees are not present. Plaintiff counters that the injury-causing 6 || behavior was failing to keep the lobby clean and free of slipping hazards, as opposed to 7 || merely allowing access to post office boxes on a 24-hour basis. 8 The Eleventh Circuit has expressly rejected plaintiffs “narrow” view. See Hogan, 9 | 492 F. App’x at 35. The Hogan Court reasoned that, because U.S. Postal Service 10 || Maintenance Handbook MS-10 contains no indication that it applies “after business 11 | hours,” the existence or nonexistence of after-hours cleanup procedures is a product of a 12 | local postmaster’s discretion, which may be exercised pursuant to the Postal Operations 13 || Manual (“POM”). Id. at 35-36. The relevant provision of the POM currently reads: 14 At the postmaster’s discretion, lobbies may remain open 24 hours a day to allow customers access to PO Boxes and self-service equipment, provided 15 that customer safety and security provisions are deemed adequate by the Inspection Service. 6 POM § 126.43, Ex. C to Waldrop Decl. (docket no. 26-3). The Sixth Circuit has provided a similar analysis, albeit in an unpublished opinion. 8 Bell v. United States, Nos. 99-5563 & 99-5655, 2000 WL 1720932 (6th Cir. Nov. 6, 2000). In Bell, the plaintiff slipped on the wet floor of a post office lobby when the °° service window was closed. Id. at *1. The Bell Court held that the conduct at issue was not the failure to rope off or place signs around the wet areas, install rubber or all-weather 22 23 ORDER - 4
1 | mats, or mop the floor, as the plaintiff alleged, but rather was the postmaster’s decision 2 || concerning the circumstances under which to allow the lobby area to remain open to the 3 || public at times when the service windows were closed. Id. at *3—4. The Sixth Circuit 4 | observed that the determination of whether, for purposes of keeping a lobby continually 5 | open, customer safety and security provisions are adequate “falls squarely within the 6 || postmaster’s discretionary judgment.” Id. at *4. 7 With one exception, district courts have generally reached the same conclusion. 8 || Ferguson v. United States, No. 19-340, 2021 WL 3288359, at *4 (D. Md. Aug. 2, 2021); 9 | Cronin v. United States, No.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON ‘6 AT SEATTLE
7 ELLIE BONEBRAKE, 8 Plaintiff, 9 v. C19-1639 RAJ 10 UNITED STATES OF AMERICA: ORDER and UNITED STATES POSTAL 1 SERVICE, D Defendants. 13 THIS MATTER comes before the Court on a motion for summary judgment, 14 | docket no. 25, brought by defendants United States of America and the United States 15 || Postal Service (collectively, “United States”). Neither side requested oral argument. 16 || Having reviewed all papers filed in support of, and in opposition to, the motion, the Court 17 || enters the following order. 18 | Background 19 Plaintiff Ellie Bonebrake asserts a negligence claim against the United States in 20 || connection with her slip-and-fall while attempting to retrieve her mail. The underlying 21 || facts are undisputed. On January 8, 2017, which was a Sunday, plaintiff, who is currently 22 || 81 years old, see Bonebrake Dep. at 6:4—5, Ex. B to Mumford Decl. (docket no. 29-2), 23 ORDER - 1
| || went to the post office in Blaine, see Bonebrake Dep. at 27:2~4, Ex. C to Mumford Decl. 2 || (docket no. 29-3). While walking through the lobby toward her post office box, plaintiff 3 | slid on an accumulation of ice melt. See Bonebrake Dep. at 33:18-34:19, Ex. E to 4 | Mumford Decl. (docket no. 29-5).! As a result of her fall, plaintiff suffered a fracture of 5 | her patella, requiring surgery. Pla.’s Resp. at 3 (docket no. 28). 6 The United States moves for summary judgment on two grounds: (i) lack of 7 || subject matter jurisdiction because the Blaine Postmaster’s decision to keep the lobby 8 | open on a 24-hour basis (and not clean or maintain it during non-business hours) was 9 || discretionary and therefore not conduct as to which sovereign immunity has been waived 10 || under the Federal Tort Claims Act (“FTCA”); and (ii) even if the Court has subject 11 | matter jurisdiction, plaintiff cannot prevail on a negligence theory because she cannot 12 | prove that Blaine postal employees had actual or constructive notice of the snow or ice 13 | melt upon which she slipped. The Court agrees with the first contention and therefore 14 || does not address the second argument. 15 | Discussion 16 The Court treats the pending motion as being brought pursuant to Federal Rule of 17 | Civil Procedure 12(b)(1). The United States presents a facial, rather than a factual, 18 19 ' According to plaintiff and her son, garbage was also strewn across the lobby floor. Bonebrake 20 Dep. at 74:15-18, Ex. A to Mumford Decl. (docket no. 29-1); Schamel Decl. at § 4 (docket no. 30). Plaintiff had previously complained to postal employees about the garbage issue, which 21 apparently resulted from the absence of trash bins. See Bonebrake Dep. at 73:16-74:25, Ex. A to Mumford Decl. (docket no. 29-1). Plaintiff, however, made clear in her deposition that she did 22 || not slip on any garbage. Id. at 77:19-21. 23 ORDER - 2
| || jurisdictional challenge. A facial attack asserts that the allegations of the complaint are 2 || insufficient on their face to invoke federal jurisdiction, while a factual challenge disputes 3 || the truth of the allegations in the complaint that would otherwise support subject-matter 4 | jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 5 || With respect to a facial challenge under Rule 12(b)(1), a plaintiff is entitled to the same 6 || safeguards that apply to a Rule 12(b)(6) motion to dismiss for failure to state a claim. 7 | See Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). The factual allegations of 8 | the complaint are presumed to be true, and the pleading is construed in the light most 9 || favorable to the non-moving party. See Does v. Univ. of Wash., No. C16-1212, 2016 10 || WL 5792693, at *3-4 (W.D. Wash. Oct. 4, 2016). 1] The waiver of sovereign immunity set forth in the FTCA does not extend to any 12 | claim “based upon the exercise or performance or the failure to exercise or perform a 13 | discretionary function or duty on the part of a federal agency or an employee of the 14 | Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). 15 || This FTCA exception “covers only acts that are discretionary in nature,” involving “an 16 || element of judgment or choice.” United States v. Gaubert, 499 U.S. 315, 322 (1991). 17 || The appropriate inquiry concerns the nature of the conduct, not the status of the actor. Id. 18 || Gaubert has been understood as establishing a two-part test: the first prong asks whether 19 || the federal agency’s or employee’s behavior was discretionary in nature, and if so, the 20 || second prong evaluates whether the exercise of discretion was inherently grounded in 21 || socia!, economic, or political policy considerations. See, e.g., Hogan v. U.S. Postmaster 22 || Gen., 492 F. App’x 33, 34 (11th Cir. 2012); see also Gaubert, 499 U.S. at 323. 23 ORDER - 3
1 The parties here do not disagree concerning the applicable standard. Rather, they 2 || battle over how to define the conduct at issue. The United States contends that the action 3 | being challenged by plaintiff is the Postmaster’s discretionary decision to keep the lobby 4 || area of the Blaine post office open to the public during hours when the retail area is 5 || closed and postal employees are not present. Plaintiff counters that the injury-causing 6 || behavior was failing to keep the lobby clean and free of slipping hazards, as opposed to 7 || merely allowing access to post office boxes on a 24-hour basis. 8 The Eleventh Circuit has expressly rejected plaintiffs “narrow” view. See Hogan, 9 | 492 F. App’x at 35. The Hogan Court reasoned that, because U.S. Postal Service 10 || Maintenance Handbook MS-10 contains no indication that it applies “after business 11 | hours,” the existence or nonexistence of after-hours cleanup procedures is a product of a 12 | local postmaster’s discretion, which may be exercised pursuant to the Postal Operations 13 || Manual (“POM”). Id. at 35-36. The relevant provision of the POM currently reads: 14 At the postmaster’s discretion, lobbies may remain open 24 hours a day to allow customers access to PO Boxes and self-service equipment, provided 15 that customer safety and security provisions are deemed adequate by the Inspection Service. 6 POM § 126.43, Ex. C to Waldrop Decl. (docket no. 26-3). The Sixth Circuit has provided a similar analysis, albeit in an unpublished opinion. 8 Bell v. United States, Nos. 99-5563 & 99-5655, 2000 WL 1720932 (6th Cir. Nov. 6, 2000). In Bell, the plaintiff slipped on the wet floor of a post office lobby when the °° service window was closed. Id. at *1. The Bell Court held that the conduct at issue was not the failure to rope off or place signs around the wet areas, install rubber or all-weather 22 23 ORDER - 4
1 | mats, or mop the floor, as the plaintiff alleged, but rather was the postmaster’s decision 2 || concerning the circumstances under which to allow the lobby area to remain open to the 3 || public at times when the service windows were closed. Id. at *3—4. The Sixth Circuit 4 | observed that the determination of whether, for purposes of keeping a lobby continually 5 | open, customer safety and security provisions are adequate “falls squarely within the 6 || postmaster’s discretionary judgment.” Id. at *4. 7 With one exception, district courts have generally reached the same conclusion. 8 || Ferguson v. United States, No. 19-340, 2021 WL 3288359, at *4 (D. Md. Aug. 2, 2021); 9 | Cronin v. United States, No. 2:18-cv-573, 2020 WL 5040597, at *4-6 (E.D.N.Y. 10 | Aug. 26, 2020) (citing Krey v. Brennan, No. 15-3800, 2017 WL 2797491 (D. Md. 11 | June 28, 2017), aff'd sub nom. Krey v. United States, 734 F. App’x 203 (4th Cir. 2018)); 12 | Williams v. United States, No. 1:18CV21, 2018 WL 5077652, at *3 (W.D. Va. Oct. 18, 13 | 2018); Stephenson v. United States, No. 1:16-11979, 2017 WL 5760451, at *4 (S.D. 14 || W. Va. Nov. 28, 2017). In these decisions, the district courts also found that a 15 | postmaster’s determination concerning 24-hour access to post office boxes and self- 16 || service equipment involves the types of policy considerations envisioned in the FTCA’s 17 || discretionary function exemption. In opting to keep a lobby area perpetually open, a 18 || postmaster must balance the convenience of the public, the safety of federal property, and 19 | budgetary constraints on snow or ice removal efforts, as well as on staffing during times 20 || when the post office experiences minimal customer traffic. See Williams, 2018 WL 21 || 5077652, at *3; see also Ferguson, 2021 WL 3288359, at *4 (observing that, in deciding 22 || whether to keep a post office lobby open after hours, the Postal Service must consider the 23 ORDER _5
1 || costs to the government and the benefit to the community); Cronin, 2020 WL 5040597, at 2 || *5; Stephenson, 2017 WL 5760451, at *5. Thus, the conduct at issue in this matter is 3 || outside the boundaries of the FTCA’s waiver of sovereign immunity and beyond the 4 | scope of the Court’s subject matter jurisdiction. 5 The District of Montana has reached a different result. Fikani v. United States, 6 | No. CV 19-64, 2021 WL 2000298 (D. Mont. May 19, 2021). In Fikani, the plaintiff 7 | slipped and fell in a puddle of water on the lobby floor of a post office in Belgrade, 8 || Montana. Id. at *1. The Fikani Court reasoned that, although the Belgrade Postmaster 9 | had discretion to allow the lobby to remain open 24-hours-a-day, such decision carried 10 | with it a duty, outlined in the Supervisor’s Safety Handbook, to “always maintain a dry 11 || area for pedestrian traffic.” Id. at *2 (quoting Handbook EL-801, Supervisor’s Safety 12 || Handbook, § 8-7.3). The Fikani Court further concluded that, even if the decision of 13 | whether or not to maintain a dry area for pedestrians was discretionary, it was not 14 || grounded in social, economic, and political policy. Id. Although this reasoning has some 15 | emotional appeal, it is fundamentally flawed because it essentially requires a postmaster 16 | to staff a post office lobby during evenings, weekends, and holidays in order to provide 17 || after-hours access. This result is incompatible with the discretion accorded by POM 18 || § 126.43 to keep lobbies perpetually open, and it demonstrates that the analysis in Fikani 19 | constitutes the kind of “judicial ‘second-guessing”” that the discretionary function 20 || exemption was designed to prevent, see Gaubert, 499 U.S. at 323. Fikani appears to be 21 | an outlier, as opposed to a trendsetter, and the Court declines to adopt its analysis. 22 23 ARDER _&
1 || Conclusion 2 For the foregoing reasons, the Court ORDERS: 3 (1) The motion, docket no. 25, brought by the United States is treated as a 4 | motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), and it is 5 | GRANTED. Plaintiff's complaint and this case are DISMISSED for lack of subject 6 || matter jurisdiction. 7 (2) Plaintiff's motion for a continuance pursuant to Federal Rule of Civil 8 || Procedure 56(d), docket no. 28, and plaintiff's motion for an extension of the discovery 9 || deadline, docket no. 21, are STRICKEN as moot. 10 (3) Plaintiff's counsel submitted an excerpt of the transcript of plaintiff’ s 11 | deposition in which her entire date of birth was provided. The Clerk is DIRECTED to 12 | SEAL this excerpt, Exhibit B to the Declaration of Tom Mumford, docket no. 29-2. See 13 | LCR 5.2(a)(1). 14 (4) | The Clerk is further DIRECTED to CLOSE this case and to send a copy of 15 | this Order to all counsel of record. 16 IT IS SO ORDERED. 17 Dated this 18 day of October, 2021. 18 19 ichard A. Jones United States District J¥dge 20 21 22 23 ORDER _ 7