William Hogan v. U.S. Postmaster General

492 F. App'x 33
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 11, 2012
Docket12-11694
StatusUnpublished
Cited by8 cases

This text of 492 F. App'x 33 (William Hogan v. U.S. Postmaster General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
William Hogan v. U.S. Postmaster General, 492 F. App'x 33 (11th Cir. 2012).

Opinion

PER CURIAM:

William Hogan appeals the district court’s order granting summary judgment to the United States on his claim for damages under the Federal Tort Claims Act (FTCA). Because we agree with the district court that Hogan’s claim is barred by the discretionary function exception to the FTCA, we affirm.

I. FACTS AND PROCEDURAL HISTORY

The relevant facts of this case are undisputed. The United States Post Office branch in Lake Park, Georgia (Post Office) provides twenty-four hour access to post office boxes in its facility. Access is provided to customers even when the Post Office service counter is closed and even when no Post Office employees are on duty. Hogan receives his mail at a post office box in the Post Office.

On Saturday, March 28, 2009 Hogan went to the Post Office at around 8:00 p.m. to check his mail. It was raining at the time, and as Hogan stepped through the *34 entryway into the Post Office lobby, he immediately slipped and fell due to water that had accumulated on the lobby floor. As a result of his fall, Hogan injured his back, hip, and jaw.

Hogan filed suit against the United States under the FTCA in the Middle District of Georgia, alleging that the Post Office should have been aware of the dangerous condition presented by slippery floors and should have taken precautionary measures to ensure that the Post Office remained safe. The United States moved for summary judgment, arguing that on the facts alleged, the Post Office was not negligent under Georgia law. The United States then filed an amended motion for summary judgment, asserting that the district court lacked jurisdiction over the complaint because the Post Office’s decision to maintain a twenty-four hour access facility fell within the discretionary function exception to the FTCA. The district court granted the amended motion for summary judgment, rendering moot the arguments about Georgia law on negligence made on behalf of the Post Office in the original motion. This appeal followed.

II. Discussion

We address one issue: whether the discretionary function exception to the FTCA bars Hogan’s suit against the United States. By arguing that Hogan’s claim is governed by the discretionary function exception, the United States factually attacks our subject matter jurisdiction. U.S. Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11th Cir.2009). Our review of factual attacks on the existence of subject matter jurisdiction is de novo. Id. We also review the facts in the light most favorable to the plaintiff. Id. (citation omitted).

A.

“The United States cannot be sued except as it consents to be sued.” Powers v. United States, 996 F.2d 1121, 1124 (11th Cir.1993). Congress, through the FTCA, waived the sovereign immunity of the United States in certain limited circumstances, and gave the federal district courts jurisdiction over certain tort actions against the United States. See 28 U.S.C. § 1346(b); Powers, 996 F.2d at 1124. Exempted from this limited waiver of sovereign immunity, however, is “[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). “The discretionary function exception is intended to prevent the courts from second-guessing administrative decisions grounded in social, economic, or political policy through the medium of an action in tort.” Aviation Underwriters, 562 F.3d at 1299 (quotation marks omitted).

A precise definition of “discretionary” for purposes of applying the discretionary function exception does not exist. Id. Instead, in determining whether the discretionary function exception applies, courts administer a two-part test. See United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991).

First, the court must examine whether the challenged conduct is discretionary in nature or whether the conduct involves an element of judgment or choice. Second, the court must decide whether that judgment is of the kind that the discretionary function exception was designed to shield, i.e. whether it is susceptible to policy analysis.

Aviation Underwriters, 562 F.3d at 1299 (quotation marks omitted). “A function is non-discretionary if a federal statute, regu *35 lation, or policy specifically prescribes a course of action for an employee to follow where the employee has no rightful option but to adhere to the directive.” Id. (quotation marks omitted).

1.

“Before we address whether the government’s conduct violated a mandatory regulation or policy, we must determine exactly what conduct is at issue.” Autery v. United States, 992 F.2d 1523, 1527 (11th Cir. 1993). Hogan argues that “[t]he conduct at issue in this case is the following of the safety procedures [related to cleanup of wet floors] in the Post Office.” The government, on the other hand, contends that “the [conduct] at issue ... [is] whether to allow twenty-four hour access to post offices [sic] boxes, and under what conditions. ...”

In deciding what conduct is at issue here, a review of the facts and holding of Autery is instructive. In that case, Roy Autery was killed and Charlotte Schreiner was injured when a tree fell on their car as they drove through Great Smokey Mountain National Park (GSMNP). Autery, 992 F.2d at 1524. Autery’s estate and Schreiner (the plaintiffs) brought a negligence action against the United States under the FTCA. Id. After a bench trial, the district court entered judgment for the plaintiffs. Id. The government appealed, and we reversed. In pertinent part, we took issue with the plaintiffs’ and the district court’s description of the “conduct at issue” as “the park’s failure to carry out the mandates of its then existing policy of identifying and eliminating known hazardous trees.” Id. at 1527. This focus was “too narrow,” we said. Id. We went on to clarify that it is “the governing administrative policy ... that determines whether certain conduct is mandatory for purposes of the discretionary function exception.” Id. at 1528.

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Bluebook (online)
492 F. App'x 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-hogan-v-us-postmaster-general-ca11-2012.