            Case: 15-10644    Date Filed: 05/12/2016   Page: 1 of 26


                                                                       [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                                No. 15-10644
                          ________________________

                    D.C. Docket No. 1:14-cv-00975-ODE



GEETA CHHETRI,
PRATIK CHHETRI,

                                                 Plaintiffs - Appellants,

versus

UNITED STATES OF AMERICA,

                                             Defendant - Appellee.
                          ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                                (May 12, 2016)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:
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      The tragic facts of this case involve a bus crash that happened because the

driver fell asleep at the wheel. Two of the survivors of that crash sued the Federal

Motor Carrier Safety Administration under the Federal Tort Claims Act,

contending that agency officials were at fault for allowing the bus company to

continue operating after it should have been declared unsafe to do so. The District

Court dismissed the suit for lack of federal subject-matter jurisdiction.

Specifically, the District Court held that the United States had not waived its

immunity from suit related to the decision allowing the bus company to continue

operating because that decision was a discretionary one, excepted under 28 U.S.C.

§ 2680(a) from the United States’ waiver of sovereign immunity for certain tort

actions. After careful review, we affirm.

                                            I.

                                          A.

      On May 31, 2011, Geeta and Pratik Chhetri (“the Chhetris”) sustained

serious injuries when the Sky Express, Inc. (“Sky Express”) bus on which they

were riding, leaving from North Carolina and heading to New York, crashed on

Interstate 95 in Caroline County, Virginia. The crash resulted from the bus driver

falling asleep at the wheel.




                                            2
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       Prior to the crash, on April 7, 2011, officials of the Federal Motor Carrier

Safety Administration (“FMCSA”) 1 based in North Carolina conducted a

compliance review of Sky Express, a Charlotte-based motor carrier. After

discovering a number of safety violations, 2 the FMCSA assigned Sky Express a

proposed safety rating of “unsatisfactory,” which would require Sky Express to

cease transporting passengers after the safety rating became final in forty-five days

and until such time that it could be deemed “fit” to continue. See 49 U.S.C.

§ 31144(c)(2); 49 C.F.R. § 385.13. The FMCSA notified Sky Express of its

proposed “unsatisfactory” rating on April 12, 2011.

       On May 11, 2011, Sky Express, through a transportation-safety consultant it

had hired, submitted a written request to an FMCSA official in the Southern

Service Center, located in Atlanta, Georgia, asking the FMCSA to raise its safety

rating from “unsatisfactory” to “conditional,” which would allow Sky Express to

continue operating after the forty-five-day period set to expire on May 28, 2011.

       1
          The FMCSA is the administrative agency tasked with, among other responsibilities,
monitoring and ensuring the safe operations of motor carriers including those that, like Sky
Express, transport passengers. In service of its mission, the FMCSA maintains regional service
centers and field offices throughout the United States.
        2
          The FMCSA compliance review of Sky Express identified the following violations:
one instance of failing to conduct post-accident testing on a driver for controlled substances,
three instances of using a driver unable to read or speak English, one instance of using a
physically unqualified driver, and three instances of requiring or permitting a driver of a
passenger-carrying commercial motor vehicle to drive for more than ten consecutive hours. See
49 C.F.R. § 382.303(b); id. § 391.11(a), (b)(2); id. § 391.11(a), (b)(4); id. § 395.5(a)(1). In
conjunction with these violations, Sky Express was assessed a $33,290 fine.

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See generally 49 C.F.R. §§ 385.3, 385.17(f) (2011). In its written request, Sky

Express explained the various steps it was taking to achieve compliance, including

making improvements to its drug-testing policies, creating an accident register,

reviewing its drivers’ qualifications and implementing new language-training

policies, adopting a driver-safety manual, adding additional drivers to specific

routes, and developing systems to manage various reporting and inspection

requirements. Sky Express ended its written request by asking that “a review for

an upgrade of our safety rating be scheduled as soon as possible.”

      After internal communications between officials in Atlanta and North

Carolina, the FMCSA sent two letters to Sky Express on May 13, 2011. The first

letter denied Sky Express’s request for an upgrade to its safety rating because the

request “did not include sufficient evidence to justify an upgrade” and “failed to

demonstrate that adequate corrective actions have been taken.” The letter

continued on to note that a follow-up compliance review had been scheduled to

take place prior to June 7, 2011. The second letter granted Sky Express a ten-day

extension of continued operation “based upon [its] good faith effort” and “to

provide additional time . . . to conduct a follow-up Compliance Review.” The ten-

day extension held in abeyance Sky Express’s proposed “unsatisfactory” rating

until June 7, 2011. Had the extension not been granted, the rating would have

become final on May 28, 2011.
                                          4
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      It was during this ten-day extension that the bus crash injuring the Chhetris

occurred.

                                          B.

      After exhausting their administrative remedies, on April 2, 2014, the

Chhetris filed suit against the United States in the United States District Court for

the Northern District of Georgia. The Chhetris sought damages for their injuries

under the Federal Tort Claims Act (“FTCA”) on the theory that the FMCSA

officials “failed to use due care and violated federal law” in granting the ten-day

extension, which “was grossly and recklessly negligent.”

      The United States moved to dismiss the Chhetris’ complaint on three

grounds. See Fed. R. Civ. P. 12(b)(1), (b)(3). First, the United States argued that

there was no subject-matter jurisdiction because it had not waived its immunity

under the FTCA’s discretionary-function exception. See 28 U.S.C. § 2680(a).

Second, the United States argued that the complaint was likewise barred because

the Chhetris failed to show that “a private individual under like circumstances”

would be liable under governing state tort law. See id. § 2674. Third, the United

States argued that the Chhetris’ complaint should be dismissed for improper venue

because the Chhetris did not reside, nor did the negligent or wrongful act or

omission occur, in the Northern District of Georgia. See id. § 1402(b).


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      On December 19, 2014, the District Court entered an order granting the

United States’ motion to dismiss. Concluding that the FTCA’s discretionary-

function exception barred the Chhetris’ claim, the Court did not reach the United

States’ alternative grounds for dismissal.

      The District Court began its analysis of the discretionary-function exception

with the Supreme Court’s seminal discussion of that exception in Berkovitz v.

United States, 486 U.S. 531, 108 S. Ct. 1954, 100 L. Ed. 2d 531 (1988). Under the

analysis called for by Berkovitz, courts use a two-prong test to determine whether

the exception applies: First, the action in question must “involve[] an element of

judgment or choice.” Id. at 536, 108 S. Ct. at 1958. Second, the action must be

“of the kind that the discretionary function exception was designed to shield”—that

is, it must be “based on considerations of public policy.” Id. at 536–37, 108 S. Ct.

at 1959. If the discretionary-function exception extends to the conduct in question,

claims based on that conduct are barred “whether or not the discretion involved be

abused.” 28 U.S.C. § 2680(a).

      The District Court held that the FMCSA’s decision to grant extensions to

motor carriers like Sky Express clearly involved an element of judgment or choice

under the first prong of the Berkovitz analysis. In line with the “plain language of

the regulation” then in effect, 49 C.F.R. § 385.17(f) (2011), the Court noted that

the FMCSA was expressly afforded the discretion to grant extensions of up to ten
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days. See id. (“If the motor carrier has submitted evidence that corrective actions

have been taken pursuant to this section and the FMCSA cannot make a final

determination within the 45-day period, the period before the proposed safety

rating becomes final may be extended for up to 10 days at the discretion of the

FMCSA.”). The Court rejected the Chhetris’ argument that the then-current

version of § 385.17(f) conflicted with the governing statute, 49 U.S.C. § 31144,

and therefore the regulation failed to grant the FMCSA the discretion it purports to,

reasoning that the relevant portion of the Hobbs Act, 28 U.S.C. § 2342(3)(A),3

deprives district courts of the jurisdiction to determine the validity of any rule,

regulation, or final order issued by the Secretary of Transportation.4 The Court

also rejected the Chhetris’ argument that either of the conditions required for the

FMCSA to exercise discretion—that Sky Express submit evidence that corrective

actions have been taken and that the FMCSA cannot make a final determination

within forty-five days, see 49 C.F.R. § 385.17(f) (2011)—had not been met.

       Turning to the second prong of the Berkovitz analysis, the District Court held

that the FMCSA’s authority to grant extensions during its review of a motor


       3
          The Hobbs Act referenced above, 28 U.S.C. §§ 2341–2351, which governs the review
of various administrative rules, regulations, and orders, should not be confused with the Act of
the same name that criminalizes interstate robbery and extortion, 18 U.S.C. § 1951.
        4
          The FMCSA, an agency of the United States Department of Transportation, falls under
the regulatory aegis of the Secretary of Transportation. See 49 C.F.R. § 1.87(f).

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carrier’s safety-rating status was “of the kind that the discretionary function

exception was designed to shield.” Considering the nature of the FMCSA’s role of

monitoring and regulating the safety of a diverse range of motor carriers, whether

to grant a particular extension is “a discretionary decision involving the safety and

policy considerations imbued within the statute and its regulations.” As both

Berkovitz prongs were satisfied, the Court concluded that the discretionary-

function exception of the FTCA applied and there was no jurisdiction for the suit

to proceed.

      Having found that the case must be dismissed pursuant to the discretionary-

function exception, the Court did not reach the United States’ alternative

arguments for dismissal. This appeal timely followed.

                                          II.

        Our review of a district court’s dismissal of an action for lack of subject-

matter jurisdiction is de novo. Zelaya v. United States, 781 F.3d 1315, 1321 (11th

Cir. 2015), cert. denied, 136 S. Ct. 168 (2015). On appeal from a grant of a motion

to dismiss, we take as the operative facts the allegations made in the complaint.

See Guevara v. Republic of Peru, 468 F.3d 1289, 1292 n.1 (11th Cir. 2006) (citing

Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (per curiam)).




                                           8
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                                         III.

      On appeal the Chhetris contend that the District Court erred by dismissing

their complaint. Specifically, they argue that the discretionary-function exception

does not apply to the FMCSA officials’ actions because the statute at issue, 49

U.S.C. § 31144, clearly prohibits extensions of any length beyond the specified

forty-five-day period regardless of a regulation to the contrary then in force, 49

C.F.R. § 385.17(f) (2011). Even if the governing statute did not clearly prohibit

the extension granted to Sky Express pursuant to the contested regulation, the

Chhetris maintain that the FMCSA officials still lacked the discretion to act as they

did because of the absence of two prerequisites under another provision, 49 C.F.R.

§ 385.17(c). Finally, assuming they are correct about the discretionary-function

exception, the Chhetris argue that their complaint is likewise not barred by the due-

care exception to the FTCA, 28 U.S.C. § 2680(a), because the FMCSA’s decision

to grant the ten-day extension to Sky Express was made using a looser safety-

compliance standard improperly borrowed from yet another regulatory provision,

49 C.F.R. § 385.17(g).

      The United States counters that the District Court correctly dismissed the

Chhetris’ claims for two reasons. First, the United States argues that the Chhetris’

suit is barred because the discretionary-function exception applies. Specifically,

the United States contends that the regulations in question involve an element of
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judgment or choice and are grounded in policy considerations; that FMCSA

officials acted in accordance with those regulations when granting the extension;

and that the Chhetris cannot challenge the validity of the regulations before the

District Court because the pertinent part of the Hobbs Act, 28 U.S.C. § 2342(3)(A),

vests jurisdiction over challenges to the validity of the regulations in question

exclusively in the courts of appeals. Second, the United States argues that the

Chhetris are also barred from bringing suit under the FTCA because the United

States, if it were a private person, would not be liable for granting the extension to

Sky Express under Virginia tort law.

      Our analysis proceeds in two parts. First, we provide an overview of the

statutory and regulatory framework in effect when the ten-day extension was

granted to Sky Express that structured the FMCSA’s authority to extend the time at

which a proposed safety rating becomes final. Second, we analyze whether

FMCSA officials acted in line with their authority and, if so, whether the

discretionary-function exception applies. We conclude, as did the District Court,

that the discretionary-function exception applies and thus bars the Chhetris’ claims.

Accordingly, we do not address whether the due-care exception might apply as




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well. Nor do we address whether the Chhetris may be able to show a private tort

analog under Virginia law.5

                                                A.

       In order “to promote the safe operation of commercial motor vehicles,”

Congress has tasked the Secretary of Transportation with “determin[ing] whether

an owner or operator is fit to operate safely commercial motor vehicles” 6 and

“periodically updat[ing] such safety fitness determinations.” 49 U.S.C.

§§ 31131(a)(1), 31144(a)(1), (a)(2). As part of the responsibility for assigning

safety ratings, the Secretary of Transportation “shall maintain by regulation a

procedure” for doing so, which must include “[s]pecific initial and continuing

requirements,” a “methodology,” and “[s]pecific time frames” to make

determinations. Id. § 31144(b). The Secretary of Transportation has delegated this

authority to the FMCSA. 49 C.F.R. § 1.87(f).

       5
           Likewise, we do not reach an issue that the United States raised below but the District
Court did not reach: whether venue was proper in the Northern District of Georgia. The relevant
statute provides that a suit against the United States brought under the FTCA “may be prosecuted
only in the judicial district where the plaintiff resides or wherein the act or omission complained
of occurred.” 28 U.S.C. § 1402(b). Whether venue was proper is uncertain because the Chhetris
are citizens of Nepal who reside in Michigan and the location of “the act or omission complained
of” remains in dispute.
         Because the United States has abandoned its venue challenge on appeal and the Chhetris’
claims are independently barred by the discretionary-function exception, we decline to speculate
as to whether venue in the Northern District of Georgia was proper.
         6
           Although the statute uses the term “an owner or operator” of commercial motor
vehicles, the regulations frequently refer to these entities simply as “motor carriers.” For ease of
the reader, this opinion will use the latter wherever possible.

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       The FMCSA, through regulation, has established a safety-rating system

comprising three possible ratings: “satisfactory,” “conditional,” and

“unsatisfactory.” 49 C.F.R. §§ 385.3, 385.5. A “satisfactory” rating “means that a

motor carrier has in place and functioning adequate safety management controls to

meet the safety fitness standard” required elsewhere in the FMCSA’s regulations.

Id. § 385.3; see also id. § 385.5.7 A “conditional” rating means that the motor

carrier “does not have adequate safety management controls in place” and this lack

of safety-management controls “could” violate the safety-fitness requirements. Id.

§ 385.3. An “unsatisfactory” rating means that the motor carrier “does not have

adequate safety management controls in place” and this lack of safety-management

controls “has” resulted in safety violations. Id. In the process of assigning a safety

rating, the FMCSA may conduct a “compliance review,” which is “an on-site

examination of motor carrier operations, such as drivers’ hours of service,

maintenance and inspection, driver qualification, commercial drivers license

requirements, financial responsibility, accidents, hazardous materials, and other



       7
          The non-exhaustive list of factors that may be considered in determining a safety rating
includes, among other considerations, (1) the “[a]dequacy of safety management controls,”
(2) the “[f]requency and severity of regulatory violations,” (3) the “[f]requency and severity of
driver/vehicle regulatory violations identified during roadside inspections,” (4) the “[n]umber
and frequency of out-of-service driver/vehicle violations,” (5) the “[i]ncrease or decrease in
similar types of regulatory violations discovered during safety or compliance reviews,” and
(6) the “[f]requency of accidents” and “hazardous materials incidents.” 49 C.F.R. § 385.7.

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safety and transportation records to determine whether a motor carrier meets the

safety fitness standard.” Id.

       If after a compliance review, as relevant here, a motor carrier’s safety rating

is determined to be “unsatisfactory,” that determination serves as notice to the

motor carrier that it would be deemed “‘unfit’ to continue operating” should the

proposed “unsatisfactory” rating remain unchanged after the relevant forty-five- or

sixty-day period. 8 See id. §§ 385.11(d), 385.13(a)(1), (d)(1). Once a motor carrier

is determined to be “unfit,” it must cease operating until declared “fit.” 49 U.S.C.

§ 31144(c)(1)–(c)(3). After receiving a proposed “unsatisfactory” rating, a motor

carrier may request an upgrade before the proposed rating becomes final and the

motor carrier would be forced to cease operating. The motor carrier “must make

this request in writing” and “must base its request upon evidence that it has taken

corrective actions and that its operations currently meet” the required safety

standards. 49 C.F.R. § 385.17(b), (c). The FMCSA, in turn, has thirty days to

make a “final determination” on the motor carrier’s request “based upon the

documentation the motor carrier submits, and any additional relevant information.”

Id. § 385.17(d), (e)(1).

       8
         Generally, a motor carrier is given 60 days before a proposed “unsatisfactory” rating
becomes final. Motor carriers that transport passengers or hazardous material are given 45 days.
See 49 U.S.C. § 31144(c)(1)–(c)(3). Because Sky Express transported passengers, the relevant
time period for a safety-rating update is 45 days.

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      Though a request for an upgrade does not toll the time when a proposed

safety rating is to become final, the regulations in force at the time of the events

giving rise to the Chhetris’ suit contained a provision allowing the FMCSA to

grant certain extensions. That provision reads in full:

      The filing of a request for change to a proposed or final safety rating
      under this section does not stay the 45-day period specified in
      § 385.13(a)(1) for motor carriers transporting passengers or hazardous
      materials. If the motor carrier has submitted evidence that corrective
      actions have been taken pursuant to this section and the FMCSA
      cannot make a final determination within the 45-day period, the
      period before the proposed safety rating becomes final may be
      extended for up to 10 days at the discretion of the FMCSA.

Id. § 385.17(f) (2011). In 2012, the FMCSA rescinded the provision allowing for

these ten-day extensions to “bring [the regulations] into conformity with [49

U.S.C.] § 31144(c)(4).” See 77 Fed. Reg. 64,759, 64,760 (Oct. 23, 2012) (codified

at 49 C.F.R. pt. 385). Section 31144(c)(4) expressly grants the Secretary of

Transportation the discretion to extend the sixty-day period after which a proposed

rating becomes final for certain motor carriers while excepting those who transport

passengers or hazardous materials. See 49 U.S.C. § 31144(c)(4). 9 The remainder

      9
        Section 31144(c)(4) provides in full:
      (4) Secretary’s discretion.—Except for owners or operators described in
      paragraphs (2) and (3) [those that transport passengers or hazardous materials],
      the Secretary may allow an owner or operator who is not fit to continue operating
      for an additional 60 days after the 61st day after the date of the Secretary’s fitness
      determination, if the Secretary determines that such owner or operator is making a
      good faith effort to become fit.

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of § 31144 is silent as to whether motor carriers that transport passengers or

hazardous materials may similarly be granted extensions of some duration.

                                            B.

       With this statutory and regulatory background, we turn next to whether the

FMCSA’s decision to grant a ten-day extension to Sky Express before its proposed

“unsatisfactory” rating became final falls under the FTCA’s discretionary-function

exception, which would defeat the Chhetris’ assertion of federal subject-matter

jurisdiction over their suit. Before we do so, we must first address whether the

relevant portion of the Hobbs Act, 28 U.S.C. § 2342(3)(A), precludes our review

of the Chhetris’ claims, in whole or in part.

                                            1.

       The Hobbs Act provides that “[t]he court of appeals” shall have “exclusive

jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the

validity of” the “rules, regulations, or final orders of . . . the Secretary of

Transportation issued pursuant to . . . subchapter III of chapter 311,” which

includes 49 C.F.R. § 385.17(f) (2011), the now-rescinded regulation allowing the

FMCSA to grant the extension in question. See 28 U.S.C. § 2342(3)(A). Rather

than bring an original action in the district court, then, challenges to administrative


49 U.S.C. § 31144(c)(4).

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regulations must generally be brought before the courts of appeals pursuant to the

Administrative Procedure Act, 5 U.S.C. § 500 et seq. 10

       This limitation on the district courts’ jurisdiction contained in the Hobbs Act

“promotes judicial efficiency, vests an appellate panel rather than a single district

judge with the power of agency review, and allows ‘uniform, nationwide

interpretation of the federal statute by the centralized expert agency created by

Congress.’” CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 450 (7th

Cir. 2010) (quoting United States v. Dunifer, 219 F.3d 1004, 1008 (9th Cir. 2000)).

This limitation on the district courts’ jurisdiction also accords fully with the long-

standing notion that “[i]t was not intended that the constitutionality of legislation,

the legality of regulations, or the propriety of a discretionary administrative act

should be tested through the medium of a damage suit for tort.” Dalehite v. United

States, 346 U.S. 15, 27, 73 S. Ct. 956, 963, 97 L. Ed. 1427 (1953) (quotation marks

and citation omitted). Federal courts “have traditionally refused to question the

judgments” of administrative agencies in promulgating regulations—as opposed to

reviewing the content of those regulations or the procedure used to produce

them—because “the power to adopt regulations or by-laws . . . for the preservation


       10
         Relevant here, the United States’ waiver of sovereign immunity under the
Administrative Procedure Act is much broader than that under the FTCA. See, e.g., Golden Pac.
Bancorp v. Clarke, 837 F.2d 509, 512 (D.C. Cir. 1988).

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of the public health” is “generally regarded as discretionary” and regulations are,

“in their nature,” “legislative.” Id. at 43, 73 S. Ct. at 971–72 (quotation marks and

citation omitted).

      Given their obvious parallels but distinct purposes, the exact relationship

between the Hobbs Act’s review provisions and the FTCA’s discretionary-function

exception is complicated. Though it is clear that head-on challenges to the validity

of regulations may not be brought in the district courts under the Hobbs Act, the

ability to bring challenges that touch on, but do not seek to completely invalidate,

the same regulations remains somewhat murkier. Whether a claim brought against

the United States under the FTCA that touches on, but does not seek to invalidate,

a regulation can be maintained turns on whether the resolution of the claim can be

considered “wholly collateral” to the regulation’s validity or whether the two are

“inescapably intertwined.” See Merritt v. Shuttle, Inc., 245 F.3d 182, 186–88 (2d

Cir. 2001); Beins v. United States, 695 F.2d 591, 597–600 (D.C. Cir. 1982); accord

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212–16, 114 S. Ct. 771, 779–81,

127 L. Ed. 2d 29 (1994). Though this “wholly collateral”–“inescapably

intertwined” determination is one that will necessarily be made context by context

and regulation by regulation, our recent decision in Mais v. Gulf Coast Collection

Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014), helps frame our inquiry here.


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       In Mais, we were confronted with a lawsuit that challenged a declaratory

ruling of the Federal Communications Commission as inconsistent with the

governing language of the Telephone Consumer Protection Act of 1991.11

Answering a certified question from the district court, we held that a nearly

identical provision of the Hobbs Act, 28 U.S.C. § 2342(1), 12 deprived that court of

jurisdiction to hear the suit. We so concluded even though “Mais did not sue with

the primary intent ‘to enjoin, set aside, annul, or suspend’ an FCC order” and

“Mais’s claim did not necessarily depend on invalidation of the agency’s ruling.”

Id. at 1119. Nor would it matter, we noted, if the challenge were raised as part of

the plaintiff’s claim or as an affirmative defense. Our “Hobbs Act jurisdictional

analysis looks to the ‘practical effect’ of a proceeding, not the plaintiff’s central

purpose for bringing suit.” Id. at 1120 (quoting B.F. Goodrich Co. v. Nw. Indus.,

Inc., 424 F.2d 1349, 1353–54 (3d Cir. 1970)). The courts of appeals, therefore,
       11
            The plaintiff, Mais, brought suit against the defendant, Gulf Coast Collection Bureau,
Inc., for making autodialed or prerecorded calls that he alleged violated the Telephone Consumer
Protection Act of 1991 (“TCPA”). Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110,
1113 (11th Cir. 2014). Gulf Coast moved for summary judgment on the grounds that it had
received “prior express consent” for the calls from Mais’s wife when she completed various
hospital-admissions forms, pursuant to a 2008 declaratory ruling of the Federal Communications
Commission (“FCC”). Id. at 1115. Mais challenged the validity of his alleged consent under the
FCC’s ruling as inconsistent with the TCPA’s statutory language. Id.
         12
            Section 2342(1) of the Hobbs Act provides “[t]he court of appeals” the “exclusive
jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of . . .
all final orders of the Federal Communications Commission made reviewable by section 402(a)
of title 47.” Section 2342(3)(A) provides the same with respect to “all rules, regulations, or final
orders of . . . the Secretary of Transportation issued pursuant to . . . subchapter III of chapter
311.”

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have exclusive jurisdiction over claims “to the extent they depend on establishing

that all or part” of an administrative regulation or order “subject to the Hobbs Act

is ‘wrong as a matter of law’ or is ‘otherwise invalid.’” Id. (quoting Self v.

Bellsouth Mobility, Inc., 700 F.3d 453, 462 (11th Cir. 2012)).

      Applying these insights, we affirm the District Court’s Hobbs Act analysis

in its order granting summary judgment to the United States on the Chhetris’

claims. If we were to credit the Chhetris’ contention that FMCSA officials simply

lacked the authority to grant extensions like the one granted to Sky Express under

49 U.S.C. § 31144, we would necessarily be passing on, and rejecting, the validity

of a regulation to the contrary that is covered by the Hobbs Act and over which the

District Court thus lacked jurisdiction. The District Court correctly held that

“because [it] lacks jurisdiction to determine the validity of [49 C.F.R.] § 385.17(f)

[(2011)], the Court must proceed with its discretionary function analysis based on

the regulation as it stood in 2011.” Our review, like that of the District Court

below, is therefore limited to the portion of the Chhetris’ claims that would not

require us to assume invalid the version of 49 C.F.R. § 385.17(f) in effect at the

time the FMCSA granted Sky Express the ten-day extension.

      As a result, we proceed to review only the Chhetris’ remaining claims that

the FMCSA negligently failed to ensure that Sky Express had met two

preconditions for receiving a ten-day extension. If this were so, the FMCSA’s
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decision to grant the extension would be outside the scope of the discretionary-

function exception under the now-rescinded version of § 385.17(f). 13

                                                2.

       Turning finally to the heart of the discretionary-function inquiry, we address

the Chhetris’ remaining claims that the FMCSA officials who granted the ten-day

extension to Sky Express failed to meet two allegedly mandatory preconditions. In

line with the version of § 385.17(f) then in force, the FMCSA could, “at [its]


       13
           Because it does not affect the disposition of the Chhetris’ appeal, we need not
determine whether the 2011 version of 49 C.F.R. § 385.17(f) can be reconciled with the
governing language of 49 U.S.C. § 31144. We pause to note, however, that the apparent conflict
between the two is less stark than the Chhetris maintain.
        In the process of promulgating the current version of § 385.17(f), the FMCSA stated that
it was seeking to bring its regulations, which until 2012 had allowed for ten-day extensions for
motor carriers that transport passengers or hazardous materials, “into conformity” with the
governing statutory language, which provided for sixty-day extension for other motor carriers
while expressly denying the same to those who transported passengers or hazardous materials.
See 77 Fed. Reg. 64,759, 64,760 (Oct. 23, 2012) (codified at 49 C.F.R. pt. 385). Interpreting this
language in a vacuum may well lead to the conclusion that the express provision for one set of
extensions excludes any others under the so-called “expressio unius canon.” See United States v.
Puentes, 803 F.3d 597, 609 (11th Cir. 2015) (“‘[W]here Congress includes particular language in
one section of a statute but omits it in another . . ., it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion.’” (quoting Keene Corp. v.
United States, 508 U.S. 200, 208, 113 S. Ct. 2035, 2040, 124 L. Ed. 2d 118 (1993))).
        But statutory interpretation is not undertaken in a vacuum, and the context of language
informs its meaning. Relevant here is the statutory history of § 385.17(f), which is not to be
confused with its legislative history. See Antonin Scalia & Bryan A. Garner, Reading Law 432,
440 (2012) (differentiating “statutory history,” “[t]he enacted lineage of a statute,” from
“legislative history,” “[t]he proceedings leading to the enactment of a statute”). Since 1991 and
prior to 2012, FMCSA regulations interpreting the Motor Carrier Safety Act of 1984 had
provided for ten-day extensions to the time a proposed “unsatisfactory” rating would become
final. In 1998, the statute was amended to expressly allow the sixty-day extensions discussed
above. However, those amendments were silent as to the shorter, ten-day extensions. See 77
Fed. Reg. at 64,759–60.

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discretion,” grant ten-day extensions to motor carriers that transport passengers if

(1) “the motor carrier has submitted evidence that corrective actions have been

taken pursuant to this section” and (2) “the FMCSA cannot make a final

determination within the 45-day period.” 49 C.F.R. § 385.17(f) (2011). According

to the Chhetris, this language must be read in conjunction with § 385.17(c), which

in turn provides that a motor carrier requesting an extension must do so in writing

and “must base its request upon evidence that it has taken corrective actions and

that its operations currently meet the safety standard and factors specified in

§§ 385.5 and 385.7.” Id. § 385.17(c). That is, absent Sky Express expressly

stating in writing that its operations were currently in compliance at the time of the

request for a safety-rating upgrade and absent the FMCSA being unable to decide

the request within forty-five days, the FMCSA officials simply lacked any

discretion to grant an extension. Because the email request from Sky Express did

not so state, and because the FMCSA responded that it was “denying [Sky

Express’s] request” though it simultaneously scheduled an additional compliance

review and granted a ten-day extension, the Chhetris conclude that the decision to

grant the ten-day extension falls outside the FTCA’s discretionary-function

exception.

      We reject the Chhetris’ proposed reading of § 385.17. Were we to accept

that reading, we would be erecting by judicial fiat yet another set of administrative
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hoops that FMCSA officials must assiduously jump through before they could

even begin to consider exercising the considerable discretion laden specifically in

§ 385.17 and generally throughout the highly technical regulatory regime for

ensuring the safety of motor carriers in interstate commerce fashioned by

Congress. This we cannot do.

       Nor are we the first court to reach this conclusion. The Fourth Circuit,

ruling on a virtually identical case arising out of the same Sky Express crash,

recently rejected the very interpretation of § 385.17 advanced by the Chhetris in

Pornomo v. United States, 814 F.3d 681 (4th Cir. 2016). The Pornomo Court,

after laying out the two-part Berkovitz analysis to determine whether the

discretionary-function exception applies,14 concluded that the FMCSA’s decision

to grant the ten-day extension “involved an ‘element of judgment or choice’ and

was ‘based on considerations of public policy.’” Id. at 688. “On the face of the

regulation,” the express provision of discretion for granting extensions “requires an

exercise of judgment or choice by the FMCSA.” Id. And it is beyond dispute that

       14
          As discussed above, the two-part Berkovitz analysis first requires the reviewing court to
determine whether the conduct in question involves “an element of judgment or choice.”
Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 1958, 100 L. Ed. 2d 531 (1988).
Second, the court must determine whether that judgement “is of the kind that the discretionary
function exception was designed to shield”—that is, whether the judgment was “based on
considerations of public policy.” Id. at 536–37, 108 S. Ct. at 1959. If the discretionary-function
exception extends to the conduct in question, claims based on that conduct brought against the
United States are barred “whether or not the discretion involved be abused.” 28 U.S.C.
§ 2680(a).

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“government regulators’ safety determinations” for motor carriers “involves

considerations of public policy.” Id. (citing United States v. Gaubert, 499 U.S.

315, 324, 111 S. Ct. 1267, 1274, 113 L. Ed. 2d 335 (1991), for the proposition that

if a regulation “allows a Government agent to exercise discretion, it must be

presumed that the agent’s acts are grounded in policy when exercising that

discretion”).

      Turning to and rejecting the same proposed reading of § 385.17 advanced by

the Chhetris, the Fourth Circuit observed that such a reading “cuts too fine a

distinction.” Id. at 689. Considering the language and context of § 385.17

together, the Pornomo Court determined that discretion “suffuses” the FMCSA’s

decision to grant extensions under the language of § 385.17(f) then in effect. Id.

Because that language “leaves it to the FMCSA to determine whether a carrier’s

submission provides evidence that corrective action has been taken, and whether

the agency has the resources to reach a final decision within 45 days,” these

preliminary determinations concerning the weight afforded to the motor carrier’s

submitted evidence and the availability of FMCSA resources likewise require an

element of judgment and “constitute discretionary functions themselves.” Id. Put

simply, § 385.17(f) is not a “‘check list.’” Id. Although the Court ultimately

concluded that the FMCSA had “exercised this discretion,” whether the FMCSA

had done so properly or not “does not matter” because the discretionary-function
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exception applies “‘whether or not the discretion involved be abused.’” Id.

(quoting 28 U.S.C. § 2680(a)).

      We fully endorse the Fourth Circuit’s capable analysis. And we agree that

the FMCSA officials’ decision to grant the ten-day extension requested by Sky

Express falls under the discretionary-function exception to the FTCA. As such, the

United States has not waived its sovereign immunity to be sued on tort claims

related to that decision. The District Court therefore correctly dismissed the

Chhetris’ suit for want of federal subject-matter jurisdiction.

                                          IV.

      For the foregoing reasons, the District Court’s order dismissing the Chhetris’

complaint is

      AFFIRMED.




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ANDERSON, Circuit Judge, concurring:

       I concur in all of Judge Tjoflat’s opinion except so much of Part III.B.1 that

relies upon the Hobbs Act, 28 U.S.C. §2342(3)(A), and our decision in Mais v.

Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014), to hold that

the district court did not have jurisdiction to determine the validity of 49 C.F.R.

§385.17(f) (2011). I would pretermit that issue, leaving it for decision at a later

time. 1 In my judgment, it is not necessary for us to decide whether the ten-day

extension provision of 49 C.F.R. §385.17(f) is valid, nor whether the district court

had jurisdiction to decide that issue. In any event, as the Fourth Circuit in

Pornomo said:

              Even if Pornomo could challenge the validity of 49 C.F.R.
       §385.17(f) in the district court, the court would still lack jurisdiction
       over his FTCA claim because the FMCSA’s promulgation of the
       regulation was itself a discretionary act. “[T]here is no doubt that
       planning-level decisions establishing programs are protected by the
       discretionary function exception, as is the promulgation of regulations
       by which the agencies are to carry out the programs.” Gaubert, 499
       U.S. at 323. Thus, the FMCSA’s decision to promulgate 49 C.F.R.
       §385.17(f), even if that decision proved to be an abuse of discretion,
       would be shielded by the discretionary function exception. See 28
       U.S.C. §2680(a).

Pornomo v. United States, 814 F.3d 681, 690 (2016).

       1
                The instant case is in a somewhat different posture than was the situation in Mais.
The regulation at issue here, at least arguably, had already been “invalidated” by the FMCSA
itself when in 2012 it rescinded the provision allowing a ten-day extension on the ground that it
was inconsistent with the statute.

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      In other words, wholly aside from the possible Hobbs Act bar, the district

court was without jurisdiction to hold that 49 C.F.R. §385.17(f) was invalid

because the promulgation of that regulation was protected by the discretionary

function exception.




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