United States District Court, District of Oregon, Portland Division
OWEN M. PANNER U.S. DISTRICT JUDGE
Plaintiff Manuel Cotta, Jr. brings this personal injury action against the United States under the Federal Tort Claims Act (FTCA). After court trials on liability and damages, I entered judgment for Plaintiff.
Defendant now moves to reconsider the denial of its motion to dismiss. Plaintiff seeks costs as the prevailing party.
I deny Defendant's motion for reconsideration. I award Plaintiff $5, 700.77 in costs.
I. Motion for Reconsideration
Defendant renews its argument that there is no subject matter jurisdiction because of the FTCA's discretionary function exception. Defendant, also contends, for the first time, that Plaintiff's claim is barred because under these facts, a private employer in the same position as the Postal Service would be protected from suit by Oregon worker's compensation law.
A. The Discretionary Function Exception to FTCA Liability Does Not Apply
1. The Discretionary Function Exception
The FTCA provides, "The United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances .'..." 28 U.S.C. § 2674. "The FTCA waives the government's sovereign immunity for tort claims arising out of negligent, conduct of government employees acting within the-scope of their employment." Terbush v. United States, 516'F.3d 1125, 1128 (9th Cir. 2008).
The FTCA's discretionary function exception bars claims "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 protects the government from "judicial "second guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.'" Terbush, 516 F.3d at 1129 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense '(Varing Airlines), 467 U.S. 797, 814 (1984)). "The government bears the burden of proving that the discretionary function exception applies." GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir., 2002) .
To determine whether the discretionary function exception applies, the court asks "(1) whether challenged actions involve an element-of judgment or choice; and (2) if a specific course of action is not specified, whether the discretion left to the government is of the kind that the discretionary function exception was designed to shield, namely, actions and decisions based on considerations of public policy." Myers v. United States, 652 F.3d 1021, 1028 (9th Cir. 2011).
"[T]he discretionary element is not met where, a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.'" Terbush, 516 F.3d at 1129 (quoting Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Here, Defendant cannot satisfy the first part of the test. The Postal Service has a policy of assisting -truck drivers with loading and unloading, ' and the Postal Service's violation of this policy caused Plaintiff's injuries. "If there is, such a statute or policy directing mandatory and specific action, the inquiry comes to an end because there can be no element of discretion when an employee 'has no rightful option but to adhere to the directive.'" Id. (quoting Berkovitz, 486 U.S. at 536).
In Kwitek v. United States Postal Service, 694 F.Supp.2d 219 (W.D.N.Y. 2010), the district court held under similar circumstances that the discretionary function exception did not apply. There, the plaintiff -was a truck driver for a private .contractor to the Postal Service. The plaintiff injured himself while loading his truck because no Postal Service employees were available to help, and he was told he was on his own. Before the plaintiff's injury, the Postal Service had always provided employees to load the plaintiff's truck.
The court in Kwitek concluded that the evidence "indicat[ed] a. reasonable expectation on behalf of both plaintiff and [Postal Service] employees that someone other than plaintiff would be available on the day in question to load mail." Id. The court concluded the ...