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Pornomo v. United States

United States District Court, E.D. Virginia, Richmond Division

October 20, 2014

JONATAN PORNOMO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant

For Jonatan Pornomo, Administrator of the Estate of Sie Giok Giang, Deceased, Plaintiff: Philip Loyd Bradfield, LEAD ATTORNEY, Law Office of Philip L Bradfield, Newport News, VA.

For United States of America, Defendant: Jonathan Holland Hambrick, LEAD ATTORNEY, Office of the U.S. Attorney, Richmond, VA.

Page 456

MEMORANDUM OPINION

James R. Spencer, Senior United States District Judge.

THIS MATTER is before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 14) (" Motion" ) pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Plaintiff Jonatan Pornomo (" Plaintiff" ) opposes

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this Motion. For the reasons below, the Court hereby GRANTS the Motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural Posture

This case arises out of a motor coach bus accident that occurred on May 31, 2011. On April 28, 2014, Plaintiff, the administrator of the estate of Sie Giok Giang, filed a complaint in this Court against Defendant, pursuant to the Federal Tort Claims Act (" FTCA" ), for a wrongful death allegedly caused by the negligence of the Federal Motor Carrier Safety Administration (" FMCSA" ), an agency within the United States Department of Transportation (" DOT" ). See ECF No. 1. In his complaint, Plaintiff essentially alleges that FMCSA was negligent in allowing Sky Express Inc. (" Sky Express" ) to operate at the time of its accident in violation of federal law. ECF No. 1.

On August 21, 2014, Defendant filed the instant Motion along with an accompanying Memorandum in Support, alleging that this Court lacks subject matter jurisdiction over Plaintiff's wrongful death action because Plaintiff cannot establish that Defendant waived sovereign immunity. ECF Nos. 14, 15. Defendant argues that the " discretionary function exception" to the FTCA, 28 U.S.C. § 2680(a), mandates that this action be dismissed for lack of subject matter jurisdiction, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Alternatively, Defendant argues that the Court lacks subject matter jurisdiction over the instant action because Plaintiff's complaint fails to satisfy the FTCA's private liability analogue requirement. See 28 U.S.C. § § 2674, 1346(b). Subsequently, on September 4, 2014, Plaintiff filed his opposition to the Motion and Defendant, in turn, filed its reply on September 10, 2014. This matter is now ripe for review.

B. Statutory and Regulatory Background

Congress has directed the Secretary of Transportation to " determine whether an owner or operator is fit to operate safely commercial motor vehicles, utilizing among other things ... [the] safety inspection record of such owner or operator." 49 U.S.C. § 31144(a)(1); see also Defendant's Memorandum of Law in Support of Defendant's Motion to Dismiss Plaintiff's amended complaint (" Def.'s Mem." ) at 2. To fulfill Congress' directive, the Secretary must " maintain by regulation a procedure for determining the safety fitness of an owner or operator." 49 U.S.C. § 31144(b); see also id. § 31136. With regard to the transportation of hazardous materials, Congress has declared that " 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 that such owner or operator is fit." Id. § 31144(c)(3); see also id. § 31144(c)(5).

The Secretary's authority to regulate the procedures of such fitness determinations has been delegated to FMCSA. See 49 U.S.C. § 113(f); 49 C.F.R. § 1.87(f). The Secretary has promulgated regulations establishing standards and procedures for evaluating the safety and fitness of commercial motor vehicle owners and operators.

FMCSA has established a fitness determination procedure as directed by Congress. See 49 C.F.R. Pt. 385. Under this regulatory framework, a motor carrier is either " unrated" or is assigned one of three possible safety ratings: " satisfactory," " conditional," or " unsatisfactory." See id. § 385.3; Def.'s Mem. at 3. A motor carrier receives a " satisfactory" safety rating if it has in place " adequate safety management controls" to meet the safety

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fitness standard prescribed in § 385.5.[1] Id. A motor carrier is assigned a " conditional" safety rating if it " does not have adequate safety management controls in place to ensure compliance with the safety fitness standard that could result in" violation of safety regulations. Id. § 385.3.

An " unsatisfactory" safety rating means that the carrier " does not have adequate safety management controls in place to ensure compliance with the safety fitness standard" and that, as a result, violation of the safety regulations has occurred. Id. The factors considered in determining a carrier's safety rating include information collected during " on-site examination[s] of motor carrier operations," which are termed " compliance reviews." [2] Id. § § 385.3, 385.7. During a compliance review, FMCSA evaluates the motor carrier's compliance with the Federal Motor Carrier Safety Regulations[3] and Hazardous Materials Regulations. [4] See id. Pt. 385, App. B § (d); Def.'s Mem. at 3. Specifically, based on the information collected from the compliance review, FMCSA assigns the carrier a proposed safety rating based on any regulatory violations found. Id. § 385.9(a); see § § 385.5, 385.7, & 385.9(a) (explaining that the agency issues the motor carrier a rating after considering the adequacy of the motor carrier's safety management controls, frequency and severity of safety violations, and other safety-related factors).

Pursuant to FMCSA's safety ratings procedures, a hazardous materials carrier that receives an " unsatisfactory" safety rating is prohibited from operating a commercial motor vehicle in interstate or intrastate commerce beginning on the 46th day after the date of the safety fitness determination. Id. § 385.13(a)(1); see also 49 U.S.C. § 31144(c)(3); Def.'s Mem. at 3. FMCSA may also revoke the operating registration of a motor carrier rated " unsatisfactory." 49 C.F.R. § 385.13(e).

A proposed overall " unsatisfactory" safety rating is provisional and does not become final until 45 days after the carrier receives written notice of the proposed rating. Id. § 385.11(c)(1); Def.'s Mem. at 4. Pursuant to 49 C.F.R. § 385.15, a carrier may seek administrative review of a proposed or final safety rating within 90 days of its issuance. Id. § § 385.15(a), (c)(2). Carriers assigned an " unsatisfactory" rating, however, are encouraged to file such requests within 15 days to allow the agency to issue a " final decision" before the prohibition on operating accompanying such a rating takes effect. Id. § 385.15(c)(1).

In addition to, or instead of, seeking administrative review under § 385.15, a carrier may request an upgrade of its safety rating under § 385.17 based on steps the carrier has taken to correct violations found during the compliance review. Def.'s Mem. at 3. The request " must include a written description of corrective actions taken, and other documentation the carrier wishes the FMCSA to consider." Id.; 49 C.F.R. § 385.17(c). Such " upgrade requests" are separate from petitions for administrative review under § 385.15, and may be filed at any time,

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including after the proposed safety rating becomes final and operating authority is revoked. See 49 C.F.R. § 385.17(a). Upon receipt of an upgrade request, the agency must determine whether " the motor carrier has taken the corrective actions required and [whether] its operations currently meet the safety standard and factors specified in [49 C.F.R.] § § 385.5 and 385.7." Id. § 385.17(h), (i); see Def.'s Mem. at 3-4. The FMCSA Field Administrator for the designated service center makes a determination on the request for change in safety fitness rating " based upon the documentation the motor carrier submits and any additional relevant information." Def.'s Mem. at 3 (citing 49 C.F.R. § 385.17(d)). If the agency denies the upgrade request, the carrier may seek administrative review of that denial under § 385.15(c)(2).

A request for change in safety rating based upon corrective action does not stay the effective date (i.e., the 46th day) of a final safety rating that would require a carrier to cease operations. Def.'s Mem. at 4 (citing 49 C.F.R. § 385.17(f)). However, at the time of the crash that led to the subject of the instant case, § 385.17 (f) read in part, " if 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 ...


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