Bonebrake v. United States of America

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, | docket no. 25, brought by defendants United States of America and the United States || 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 || enters the following order.

18 | Background 19 Plaintiff Ellie Bonebrake asserts a negligence claim against the United States in || connection with her slip-and-fall while attempting to retrieve her mail. The underlying || facts are undisputed. On January 8, 2017, which was a Sunday, plaintiff, who is currently || 81 years old, see Bonebrake Dep. at 6:4—5, Ex. B to Mumford Decl. (docket no. 29-2), 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 | slid on an accumulation of ice melt. See Bonebrake Dep. at 33:18-34:19, Ex. E to | Mumford Decl. (docket no. 29-5).! As a result of her fall, plaintiff suffered a fracture of | 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 || subject matter jurisdiction because the Blaine Postmaster’s decision to keep the lobby | open on a 24-hour basis (and not clean or maintain it during non-business hours) was || discretionary and therefore not conduct as to which sovereign immunity has been waived || under the Federal Tort Claims Act (“FTCA”); and (ii) even if the Court has subject | matter jurisdiction, plaintiff cannot prevail on a negligence theory because she cannot | prove that Blaine postal employees had actual or constructive notice of the snow or ice | melt upon which she slipped. The Court agrees with the first contention and therefore || does not address the second argument.

15 | Discussion 16 The Court treats the pending motion as being brought pursuant to Federal Rule of | Civil Procedure 12(b)(1). The United States presents a facial, rather than a factual, ' According to plaintiff and her son, garbage was also strewn across the lobby floor. Bonebrake 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 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 || not slip on any garbage. Id. at 77:19-21.

ORDER - 2 | || jurisdictional challenge. A facial attack asserts that the allegations of the complaint are || insufficient on their face to invoke federal jurisdiction, while a factual challenge disputes || the truth of the allegations in the complaint that would otherwise support subject-matter | 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 || 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 | the complaint are presumed to be true, and the pleading is construed in the light most || favorable to the non-moving party. See Does v. Univ. of Wash., No. C16-1212, 2016 || 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 | 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).

15 || This FTCA exception “covers only acts that are discretionary in nature,” involving “an || 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. || Gaubert has been understood as establishing a two-part test: the first prong asks whether || the federal agency’s or employee’s behavior was discretionary in nature, and if so, the || second prong evaluates whether the exercise of discretion was inherently grounded in || socia!, economic, or political policy considerations. See, e.g., Hogan v. U.S. Postmaster || Gen., 492 F. App’x 33, 34 (11th Cir. 2012); see also Gaubert, 499 U.S. at 323.

ORDER - 3 1 The parties here do not disagree concerning the applicable standard. Rather, they || battle over how to define the conduct at issue. The United States contends that the action | being challenged by plaintiff is the Postmaster’s discretionary decision to keep the lobby || area of the Blaine post office open to the public during hours when the retail area is || closed and postal employees are not present. Plaintiff counters that the injury-causing || behavior was failing to keep the lobby clean and free of slipping hazards, as opposed to || merely allowing access to post office boxes on a 24-hour basis.

8 The Eleventh Circuit has expressly rejected plaintiffs “narrow” view. See Hogan, | 492 F. App’x at 35. The Hogan Court reasoned that, because U.S. Postal Service || Maintenance Handbook MS-10 contains no indication that it applies “after business | hours,” the existence or nonexistence of after-hours cleanup procedures is a product of a | local postmaster’s discretion, which may be exercised pursuant to the Postal Operations || 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 ORDER - 4 | mats, or mop the floor, as the plaintiff alleged, but rather was the postmaster’s decision || concerning the circumstances under which to allow the lobby area to remain open to the || public at times when the service windows were closed. Id. at *3—4. The Sixth Circuit | observed that the determination of whether, for purposes of keeping a lobby continually | open, customer safety and security provisions are adequate “falls squarely within the || 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); | Cronin v. United States, No. 2:18-cv-573, 2020 WL 5040597, at *4-6 (E.D.N.Y. | Aug. 26, 2020) (citing Krey v. Brennan, No. 15-3800, 2017 WL 2797491 (D. Md. | June 28, 2017), aff'd sub nom. Krey v. United States, 734 F. App’x 203 (4th Cir. 2018)); | Williams v. United States, No. 1:18CV21, 2018 WL 5077652, at *3 (W.D. Va. Oct. 18, | 2018); Stephenson v. United States, No. 1:16-11979, 2017 WL 5760451, at *4 (S.D. || W. Va. Nov. 28, 2017). In these decisions, the district courts also found that a | postmaster’s determination concerning 24-hour access to post office boxes and self- || service equipment involves the types of policy considerations envisioned in the FTCA’s || discretionary function exemption. In opting to keep a lobby area perpetually open, a || postmaster must balance the convenience of the public, the safety of federal property, and | budgetary constraints on snow or ice removal efforts, as well as on staffing during times || 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 || whether to keep a post office lobby open after hours, the Postal Service must consider the ORDER _5 || costs to the government and the benefit to the community); Cronin, 2020 WL 5040597, at || *5; Stephenson, 2017 WL 5760451, at *5. Thus, the conduct at issue in this matter is || outside the boundaries of the FTCA’s waiver of sovereign immunity and beyond the | scope of the Court’s subject matter jurisdiction.

5 The District of Montana has reached a different result. Fikani v. United States, | No. CV 19-64, 2021 WL 2000298 (D. Mont. May 19, 2021). In Fikani, the plaintiff | slipped and fell in a puddle of water on the lobby floor of a post office in Belgrade, || Montana. Id. at *1. The Fikani Court reasoned that, although the Belgrade Postmaster | had discretion to allow the lobby to remain open 24-hours-a-day, such decision carried | with it a duty, outlined in the Supervisor’s Safety Handbook, to “always maintain a dry || area for pedestrian traffic.” Id. at *2 (quoting Handbook EL-801, Supervisor’s Safety || Handbook, § 8-7.3). The Fikani Court further concluded that, even if the decision of | whether or not to maintain a dry area for pedestrians was discretionary, it was not || grounded in social, economic, and political policy. Id. Although this reasoning has some | emotional appeal, it is fundamentally flawed because it essentially requires a postmaster | to staff a post office lobby during evenings, weekends, and holidays in order to provide || after-hours access. This result is incompatible with the discretion accorded by POM || § 126.43 to keep lobbies perpetually open, and it demonstrates that the analysis in Fikani | constitutes the kind of “judicial ‘second-guessing”” that the discretionary function || exemption was designed to prevent, see Gaubert, 499 U.S. at 323. Fikani appears to be | an outlier, as opposed to a trendsetter, and the Court declines to adopt its analysis.

ARDER _& || 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 | motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1), and it is | GRANTED. Plaintiff's complaint and this case are DISMISSED for lack of subject || matter jurisdiction.

7 (2) Plaintiff's motion for a continuance pursuant to Federal Rule of Civil || Procedure 56(d), docket no. 28, and plaintiff's motion for an extension of the discovery || deadline, docket no. 21, are STRICKEN as moot.

10 (3) Plaintiff's counsel submitted an excerpt of the transcript of plaintiff’ s | deposition in which her entire date of birth was provided. The Clerk is DIRECTED to | SEAL this excerpt, Exhibit B to the Declaration of Tom Mumford, docket no. 29-2. See | LCR 5.2(a)(1).

14 (4) | The Clerk is further DIRECTED to CLOSE this case and to send a copy of | this Order to all counsel of record.

16 IT IS SO ORDERED.

17 Dated this 18 day of October, 2021.

19 ichard A. Jones United States District J¥dge ORDER _ 7