Jonatan Pornomo v. United States
2016 U.S. App. LEXIS 3315
| 4th Cir. | 2016Background
- Sky Express received an “unsatisfactory” FMCSA safety rating after an April 7, 2011 compliance review; notice was sent April 12, 2011 and the rating would become final after a 45‑day provisional period (May 28, 2011).
- 49 C.F.R. § 385.17(f) (2011) permitted the FMCSA, in its discretion, to extend that 45‑day period up to 10 days if the carrier submitted evidence of corrective actions and the agency could not decide within 45 days.
- Sky Express submitted a Request for Change; FMCSA concluded more information was needed, scheduled a follow‑up review, and extended the provisional period 10 days to June 7, 2011.
- On May 31, 2011, during the 10‑day extension, a Sky Express bus crashed in Virginia killing passenger Sie Giok Giang; her son Pornomo sued the United States under the FTCA for wrongful death, alleging negligent issuance of the extension and asserting the regulation was unauthorized.
- The district court dismissed for lack of subject matter jurisdiction, holding the discretionary‑function exception to the FTCA barred the claim; Pornomo appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FMCSA’s grant of the 10‑day extension is barred by the FTCA discretionary‑function exception | Pornomo: extension was unlawful/non‑discretionary because FMCSA had already denied Sky Express’s request and statute prohibits extensions for passenger carriers | U.S.: issuance was discretionary under the regulation and thus immune under § 2680(a) | Held: discretionary‑function exception applies; FMCSA’s decision involved judgment and public‑policy considerations, so FTCA claim barred |
| Whether 49 C.F.R. § 385.17(f) was invalid as inconsistent with 49 U.S.C. § 31144 | Pornomo: statute’s text precludes extensions for passenger carriers, so the regulation exceeded statutory authority | U.S.: regulation was a permissible exercise of agency judgment and challenges to regulation validity are for courts of appeals | Held: challenge to regulation’s validity cannot be litigated in district court FTCA action; even if considered, promulgation is discretionary and barred |
| Whether factual overlap between jurisdiction and merits precluded dismissal without addressing merits | Pornomo: jurisdictional facts are intertwined with merits, so dismissal improper | U.S.: discretionary‑function is jurisdictional bar regardless of factual overlap | Held: argument waived (not raised below); dismissal reviewed de novo and affirmed |
| Whether the FMCSA’s conduct would constitute a tort under Virginia law | Pornomo: claims amount to negligence under state law | U.S.: argues conduct does not constitute state tort | Held: court declined to reach this issue after resolving discretionary‑function jurisdictional bar |
Key Cases Cited
- Berkovitz v. United States, 486 U.S. 531 (setting two‑part test for discretionary‑function exception)
- United States v. Gaubert, 499 U.S. 315 (discretionary acts grounded in policy are protected even if abused)
- United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (regulatory enforcement decisions are discretionary)
- Dalehite v. United States, 346 U.S. 15 (FTCA not vehicle to test validity of regulations through tort suits)
- Holbrook v. United States, 673 F.3d 341 (FAA certification decision was discretionary under § 2680(a))
- Medina v. United States, 259 F.3d 220 (government immunity affects jurisdiction)
- Suter v. United States, 441 F.3d 306 (de novo review of jurisdictional dismissals)
- Welch v. United States, 409 F.3d 646 (waiver of sovereign immunity construed narrowly)