Opinion
Civil Action No. DKC 2003-1263
January 27, 2004
MEMORANDUM OPINION
Presently pending and ready for resolution is Defendants' motion to dismiss or, in the alternative, for summary judgment. The issues have been fully briefed and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons set forth below, Defendants' motion will be granted.
I. Background
A. Factual History
The following facts have been alleged by Plaintiffs or are uncontroverted. In 1999, Plaintiffs purchased and moved into a townhouse located directly across the street from the loading dock and postal truck delivery area of the Rockville, Maryland Main Post Office. The Post Office has operated continuously since 1962. Plaintiffs' townhouse is part of the Cambridge Cluster development and Plaintiffs are members of the Cambridge Cluster Homeowners Association (CCHA). Upon moving in, Plaintiffs became aware, and began to complain, of noise emanating from the Post Office as a result of various postal operations, including the loading and unloading of mail trucks. Plaintiffs' main complaint focused not on how much noise was made, but rather that the noise occurred during the early hours of the morning. Numerous efforts were made, by Plaintiffs and the CCHA, to work with federal and local officials to address the concerns regarding the noise surrounding the loading and docking area. Despite their efforts, Plaintiffs claim that the Post Office has failed to act in any manner to reduce or mitigate the negative impact the noise has on Plaintiffs and their residence. According to Plaintiffs, the Postal Service refused to provide soundproofing, reschedule deliveries, enclose the loading docks, or relocate the docks away from the residential area. Plaintiffs contend that, as a result of the noise, their ability to sleep has been disturbed and they are unable to use the master bedroom as it is located closest to the Post Office.
B. Procedural History
On or about July 14, 2001, Mr. Burrows filed an administrative claim with the United States Postal Service complaining of "past, present and future losses of use and enjoyment of my property . . . due to the unlawful operations and other unnecessary nuisances that are easily and inexpensively abated at the Rockville Main Post Office." On October 19, 2001, the claim was denied although the letter of denial did not set forth his right to litigate. On April 22, 2002, Mr. Burrows requested a reconsideration of the October 19th denial. The Postal Service informed Mr. Burrows that, because the request was not filed within 6 months of the October 19th denial, his request for reconsideration was denied as untimely. The denial is dated April 23, 2002. On May 31, 2002, Mr. Burrows then argued that because the October 19th denial failed to state his right to litigate, it was not a final denial under 39 C.F.R. § 912.9(a). Advancing this argument, Mr. Burrows filed another request for reconsideration, claiming that he was entitled to reassert his April 9, 2002 request based on the insufficiency of the October 19th denial. The Postal Service accepted Mr. Burrows' argument and, on June 3, 2002, issued another denial of the claim, stating unequivocally that Mr. Burrows had a right to file a claim in federal district court within 6 months and that the letter constituted a final denial. On November 2, 2002, Mr. Burrows filed yet another request for reconsideration, which he now claims to be his first request for reconsideration of a final denial under 912.9(d) because the October 19th denial did not properly state his rights. On January 9, 2003, the Postal Service denied Mr. Burrows' last request, stating that he was not entitled to an additional review as he had exhausted all available opportunities to request a reconsideration.
In their opposition, Plaintiffs assert that the claim was "filed" on July 14, 2001 and refer to exhibit P as proof. See paper no. 15, at 3. That version of the claim form, which appears to have been scanned, is very difficult to decipher. Nonetheless, by referring to Defendants' copy of the claim filed, which is a photocopy, it is apparent that the administrative claim was received by the Postal Service on July 16, 2001. See paper no. 8, ex. 6.
39 C.F.R. § 912.9(a) provides that a final denial of an administrative clam "may include a statement of the reasons for the denial and shall include a statement that, if the claimant is dissatisfied with the agency action, he may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the notation." (emphasis added).
Section 912.9(c) states: "For purposes of this section, a request for reconsideration of a final denial of claims shall be deemed to have been filed when received."
On April 29, 2003, Mr. Burrows, joined by Mrs. Burrows, filed a complaint in this court containing the following counts: (1) trespass, (2) nuisance, and (3) declaratory and/or injunctive relief. Plaintiffs allege violation of numerous federal statutes regulating noise control and abatement: the FTCA, the Noise Abatement Act, 42 U.S.C. § 7641 and the Noise Control Act of 1972, 42 U.S.C. § 4901, et seg. Plaintiffs also allege violation of numerous state and local laws, arguing that the Postal Service's compliance with these laws is mandated by federal law.
Defendants' motion to dismiss raises several issues, including whether the United States Postal Service can be sued or whether only the United States is the proper defendant; whether the court lacks subject matter jurisdiction because neither a written claim nor this law suit were timely filed; whether the discretionary function exception applies to divest the court of jurisdiction; and whether count three, for declaratory and injunctive relief, states a claim. The alternative motion for summary judgment challenges the factual underpinnings of Plaintiffs' claims. For the reasons that follow, it will only be necessary to address the discretionary function question as to counts one and two and to determine whether a private right of action exists for the declaratory and injunctive relief sought in count three.
II. Analysis
In order to bring a suit against the United States or one of its instrumentalities, there must be a waiver of sovereign immunity. See F.D.I.C. v. Meyer, 510 U.S. 471, 484 (1994). If such a waiver exists, the substantive law upon which the claimant relies must provide an avenue for relief. Id. Plaintiffs contend that the Postal Office has waived immunity from suit for damages under the FTCA as well as the "sue and be sued" clause of the Postal Reformation Act of 1970, 39 U.S.C. § 401. Additionally, Plaintiffs claim that they are entitled to seek declaratory and injunctive relief for violation of state and county noise control laws pursuant to the Noise Control Act.
A. Waiver of Immunity
Defendants first argue that, among the claims asserted, the only permissible claim Plaintiffs may bring against the United States or the Postal Service for damages is one based on the Federal Tort Claims Act, 42 U.S.C. § 2675 (FTCA). Plaintiffs respond by claiming that Congress has conferred upon the Postal Service, by virtue of the Postal Reformation Act of 1970, 39 U.S.C. § 401, the right to "sue and be sued in its official name" such that Plaintiffs' other claims are permitted. According to Plaintiffs, the grant of "sue and be sued" power acts as a waiver of sovereign immunity. The language of the FTCA, however, clearly demonstrates otherwise. 28 U.S.C. § 2679(a) states:
The authority of any federal agency to sue and be sued in its own name shall not be construed to authorize suits against such federal agency on claims which are cognizable under section 1346(b) of this title, and the remedies provided by this title in such cases shall be exclusive.
While the statute does in fact establish a waiver of sovereign immunity, the Supreme Court has held that Congress, through the FTCA, limited the scope of sue-and-be-sued waivers "in the context of suits for which [Congress] provided a cause of action under the FTCA." See Loeffler v. Frank, 486 U.S. 548, 562 (1988); see also F.D.I.C., 510 U.S. at 477 ("Thus, if a suit is "cognizable" under § 1346(b) of the FTCA, the FTCA remedy is "exclusive" and the federal agency cannot be sued "in its own name," despite the existence of a sue-and-be-sued clause."). Thus, Plaintiffs' only cognizable claim for damages in this suit are those brought under the FTCA.
B. Federal Tort Claims Act (counts one and two)
The FTCA generally authorizes suits against the United States for damages:
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b). There are, however, a number of exceptions to this broad waiver of sovereign immunity, including the discretionary function exception, which provides that no liability shall lie for:
[a]ny claim . . . based on 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 Supreme Court, in order to guide courts in applying the discretionary function exception, has set forth certain principles. See Berkovitz v. United States, 486 U.S. 531 (1988). First, the court must consider whether the challenged action involves an element of judgment or choice. As the Fourth Circuit has explained, "[t]he inquiry boils down to whether the government conduct is the subject of any mandatory federal statute, regulations, or policy prescribing a specific course of action." Baum v. United States, 986 F.2d 716, 720 (4th Cir. 1993). If the first prong is met — that, is, if a decision does involve an element of judgment — a court then must determine whether that judgment is of the kind that Congress intended the exception to shield. See Berkovitz, 486 U.S. at 537. As the Supreme Court has explained:
The basis for the discretionary function exception was Congress' desire to "prevent judicial "second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. Varig Airlines, [ 467 U.S. 797], 814 (1984). The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy. See Dalehite v. United States, [ 346 U.S. 15,] 36 (1953) ("Where there is room for policy judgment and decision there is discretion."). In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.Berkovitz, 486 U.S. at 536-537. Exploring this exception further, the Court looked to its decision in United States v. Varig Airlines, 467 U.S. 797, 814 (1984), in which it found that the FAA's system of spot-checking airplanes was a discretionary function within the meaning of the FTCA. The court reasoned that the FAA's devised system "represented a policy determination as to how best to "accommodat[e] the goal of air transportation safety and the reality of finite agency resources.'" Berkovitz, 486 U.S. at 537 (citing Varig, 467 U.S. at 820). Thus, the Court held that if an agency's "policy leaves no room for an official to exercise policy judgment in performing a given act, or if the act simply does not involve the exercise of such judgment, the discretionary function exception does not bar a claim that the act was negligent or wrongful." Id. at 1964.
In this case, Plaintiffs' claims are based on the noise resulting from the Postal Service operations conducted in the early morning hours. Congress has given the Postal Service the general authority to maintain and operate buildings and facilities, see 39 U.S.C. § 401(6), and the responsibility to make day-to-day logistical decisions to the Postmaster. See paper 8, ex. 1, ¶ 6. That the loading and unloading of mail at the Rockville facility occurs when it does is based solely on the policy decisions of the Postmaster. See paper 8, ex. 1 at ¶ 7 (stating that the operational decisions governing the timing of delivery of mail to the facility and the equipment used to most efficiently run the operations are made independently by him). The operating hours and delivery methods are not, as Plaintiffs argue, courses of action specifically provided for or governed by a controlling statute or regulation.
While the manuals of the Postal Service may be regulations of the Postal Service for purposes of 39 C.F.R. § 211.2, which provides a list of Postal Service regulations, the court has not found anywhere in those regulations, or elsewhere, a mandatory provision setting forth how and when the Postal Service carries out its loading and unloading of mail. "Only if a federal statute, regulation or policy specifically prescribes a course of action embodying a fixed or readily ascertainable standard, will a government employee's conduct not fall within the discretionary function exception." Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997) (citation and quotations omitted) (emphasis in original). Because there are no such statutes, regulations or policies present here, the first prong of the discretionary function test has been met. See Doe v. United States, 718 F.2d 1039, 1042 (11th Cir. 1983) (holding that the decisions of postal authorities "to schedule its operations for serving local patrons" are discretionary functions).
Even if Plaintiffs' claims were to satisfy the first prong of the discretionary function exception, their claims do not satisfy the second inquiry of the test; that is, whether the judgment exercised is the type of judgment that the discretionary function exception was designed to shield. In analyzing this prong, the court looks to on whether the challenged conduct is "susceptible to policy analysis." See Smith v. Washington Metropolitan Area Transit Authority, 290 F.3d 201, 208 (4th Cir. 2002) (citing United States v. Gaubert, 499 U.S. 315, 325 (1991)). If the action challenged — here, operating the postal facility at certain hours of the day — involves the permissible exercise of policy judgment, the government and the Postal Service are excepted from liability for any harm caused.
As provided for by Congress, "[t]he Postal Service shall have as its basic function the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people." 39 U.S.C. § 101(a). To accomplish such a mission, the Postal Service "shall provide prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities." Id. Decisions involving when and how to load and unload mail are a fundamental part of the "economic and social policy analysis required to achieve these goals." Hughes, 110 F.3d at 768; see also Dalehite v. United States, 346 U.S. 15, 35-36 (1953) ("[T]he `discretionary function or duty' that cannot form a basis for suit under the Tort Claims Act . . . also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations."). It is the Postmaster' s duty to carry out the delivery of mail and serve customers in a prompt, reliable and efficient manner. See Hughes, 110 F.3d at 769. The Postmaster's authority to make operating decisions regarding how best to meet that duty is a necessary ingredient to ensure the Postal Service is operated as a "basic and fundamental service provided to the people." See id. Thus, the second prong of the discretionary function exception has also been satisfied. Accordingly, the court lacks jurisdiction over counts one and two of Plaintiffs' complaint.
C. Declaratory and Injunctive Relief (count three)
Defendants argue that count three of Plaintiffs' complaint, seeking declaratory and injunctive relief for violation of the Montgomery County Code, Chapt. 31B, must be dismissed because the Noise Control Act neither provides a private right of action nor requires the Postal Service to comply with the Montgomery County ordinance. The court agrees.
In their complaint, Plaintiffs also claim that jurisdiction is further based on the Noise Abatement Act, 42 U.S.C. § 7641. A careful reading of the statute, however, leaves clear that there is no private enforcement authority whatsoever. Apparently conceding as much, Plaintiffs do not address this basis any further in their opposition.
In Gonzaga Univ. v. Doe, 526 U.S. 273, 286 (2002), the Court emphasized the limited circumstances under which a private right of action will be found in a federal statute:
[w]here the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit . . . under an implied right of action.
The Court concluded that, "if Congress wishes to create new rights . . ., it must do so in clear and unambiguous terms." 526 U.S. at 290. There are no such clear and unambiguous terms in the Noise Control Act and, thus, no private right of action, particularly for violations of state and local noise requirements. Indeed, even prior to Gonzaga Univ., and its narrowing of the analysis, Judge Kessler so held in Commonwealth of Puerto Rico, ex rel. Sec'y of Justice v. Rumsfeld, 180 F. Supp.2d 145 (D.D.C. 2002), vacated as moot, 2003 WL 21384576 (D.C. Cir. 2003). The Commonwealth of Puerto Rico brought suit to enjoin the military training operations of the United States Navy on the island of Vieques. The Commonwealth alleged that the noise generated from the Navy's firing exercises led to health impairments and substantial interference with the quality of life of the civilian residents of Vieques. Plaintiff asserted that this noise disturbance was in violation of the federal Noise Control Act of 1972 and Puerto Rico's Noise Prohibition Act of 2001. Puerto Rico's noise control law, like the local law at issue in this case, prohibited the generation of sound above a specified level in and around a specified area. According to the Commonwealth, it was entitled to sue under the Noise Control Act to enforce the Navy's compliance with the local Noise Prohibition Act.
Looking to the language of the statute, the court recognized that § 4(b) of the Noise Control Act "requires federal facilities to follow federal, state and local environmental noise laws." Commonwealth of Puerto Rico, 180 F. Supp.2d at 151. But, while the Act grants a private right to enforce certain types of federal noise control requirements, there is no express private right of action to enforce state and local requirements regarding the control and abatement of environmental noise as prohibited under the local law. See id. at 152. Nor is there an implied private right of action in any of the Act's provisions, including the citizen suit and enforcement provisions. Id. at 156-158. As the court explained:
The term "environment noise" is used throughout the Noise Control Act "to describe the overall level of noise in a given area to which individuals are exposed." See Commonwealth of Puerto Rico, 180 F. Supp.2d at 150, n. 10 (quoting S.Rep. No. 92-1160, at 7 (1972), reprinted in 1972 U.S.C.C.A.N. 4655, 4660)).
The private right granted is reserved for violations of certain "noise control requirements" defined by the statute as related to "federal regulations aimed at the manufacturing of products put in interstate commerce that are determined to be `major sources of noise.'" See Commonwealth of Puerto Rico, 180 F. Supp.2d at 152, n. 13. Plaintiffs' claims clearly do not fall within this definition.
examination of the statutory language, context and history of various sections of the federal Noise Control Act does not reveal any indicia, let alone "strong indicia," that Congress intended to create a private cause of action for plaintiff to sue in federal district court for violation by federal facilities of state and local environmental noise laws. To the contrary, examination of the statutory language and context shows that Congress only intended to create a cause of action under the Noise Control Act for violations of the federal environmental noise control requirements expressly set forth in Section 12, the citizen suit provision.Id. at 153. Here, Plaintiffs seek to do exactly what Judge Kessler ruled impermissible: to enforce a local noise control and abatement law in federal court under the Noise Control Act. Because the Act contains no private right of action for violations of state and local "requirements respecting control and abatement of environmental noise," Plaintiffs cannot bring their challenges under the Noise Control Act. Accordingly, the court lacks jurisdiction over Plaintiffs' claim for declaratory and injunctive relief.
III. Conclusion
Because Plaintiffs' claims are based on the discretionary policy decisions of the Postal Service, Defendants are immune from liability for money damages under the discretionary function exception of the FTCA. Plaintiff also lacks a private right of action to seek declaratory and injunctive relief under the Noise Control Act. Accordingly, the court lacks subject matter jurisdiction over the present matter and Plaintiffs' complaint will therefore be dismissed. A separate order will follow.