499 U.S. at 323 (quoting Varig Airlines, 467 U.S. at 814; Berkovitz, 486 U.S. at 537).
Under the first prong of the analysis, the pertinent inquiry is whether the controlling statute or regulation prescribes that a government agent perform in a specific manner, or instead commits performance decisions to the judgment of the agency or official. 499 U.S. at 328; see Hughes v. United States, 110 F.3d 765, 768 (11th Cir. 1997). Discretionary acts are not limited to decisions at the policy making or planning levels. Gaubert, 499 U.S. at 323. Discretionary acts may also include day-to-day management or operational duties which require the exercise of choice or judgment. Id.; see United States Fidelity & Guaranty Co. v. United States, 837 F.2d 116, 121 (3d Cir.), cert. denied, 487 U.S. 1235, 101 L. Ed. 2d 935, 108 S. Ct. 2902 (1988).
The focus of the court's inquiry should not be the agent's rank or his subjective intent in exercising the discretion conferred by statute or regulation. Id. Nor need the court examine the record for evidence of a conscious policy decision. Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 892 (3d Cir. 1990). Rather, in determining whether the challenged action involves the permissible exercise of policy judgment, the court must look to the nature of the decision and whether it is a matter "susceptible to policy analysis." Gaubert, 499 U.S. at 325; Sea-Land, 919 F.2d at 892 (holding that decision to operate asbestos-containing ships presented significant question of resource allocation and was therefore "susceptible to policy analysis"); United States Fidelity & Guaranty Co., 837 F.2d at 121 ("It is irrelevant whether the government employee actually balanced economic, social, and political concerns in reaching his or her decision... 'the test is not whether the government actually considered each possible alternative in the universe of options, but whether the conduct was of the type associated with the exercise of official discretion."). "When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324.
For a complaint to survive a motion to dismiss based on the discretionary function exception, it must allege facts which support a finding that the challenged conduct is not grounded in the policy of the relevant statutory or regulatory scheme. Gaubert, 499 U.S. at 324-25. Thus, for plaintiffs to prevail in the instant case, they must allege facts to establish that the decision not to provide security at the Montclair Post Office was not grounded in the policies of the federal regulations governing the United States Postal Service.
The United States Postal Service was created 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); Hughes, 110 F.3d at 768. To achieve that aim, Congress has ordained that the Postal Service "shall provide prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities." 39 U.S.C. § 101(a); Hughes, 110 F.3d at 768. Accordingly, Congress has granted the Postal Service the authority to operate and maintain postal facilities. 39 U.S.C. § 401(6). Federal regulations promulgated under this authority designate the Chief Postal Inspector as the Security Officer for the Postal Service and make him "responsible for the issuance of instructions and regulations pertaining to security requirements within the Postal Service." 39 C.F.R. § 231.1(b); Hughes, 110 F.3d at 768. The postmaster or designated supervisor acts as the Security Control Officer for each individual post office, and as such is "responsible for the general security of the post office, its stations and branches in accordance with rules and regulations issued by the Chief Postal Inspector." 39 C.F.R. § 231.2; Hughes, 110 F.3d at 768; Ramirez v. United States Postal Service, 893 F. Supp. 121, 124 (D.P.R. 1995).
Turning to the first prong of the discretionary function analysis, it is readily apparent that the federal guidelines governing security at postal facilities do not mandate a specific course of conduct for the Chief Postal Inspector or the Security Control Officers of each post office. Rather, the guidelines allow for an exercise of judgment or choice by committing security decisions to the discretion of the Security Control Officer in accordance with regulations issued by the Chief Postal Inspector. Plaintiffs argue that because no decision to provide, or not to provide, security was ever made, the United States did not exercise any discretion and therefore cannot invoke the discretionary function exception. The Court is unpersuaded by plaintiffs' semantics. The governing federal regulations clearly commit the implementation of security procedures, if any, to the Chief Postal Inspector and the individual postmasters. That the Montclair Postmaster opted not to implement any procedures does not remove his authority to do so from the reach of the exception. Plaintiffs have not cited, and this Court's research has not yielded, any statutes, regulations, or policies which require implementation of specific security measures by each Security Control Officer. Accordingly, the first part of the discretionary function exception is satisfied. See Ramirez, 893 F. Supp. at 124.
The second prong of the analysis requires the Court to consider whether the judgment afforded the Montclair Postmaster is of a kind the discretionary function was intended to protect from liability, i.e., whether the decision of the Montclair Postmaster not to provide security and to rely on local law enforcement is "susceptible to policy analysis." Gaubert, 499 U.S. at 325; Hughes, 110 F.3d at 768. The United States contends, and plaintiffs do not dispute, that the decision to rely solely on local law enforcement was based on its limited financial resources and the absence of any history of criminal activity at the Montclair Post Office. Because decisions involving security at postal facilities involve allocation of often limited resources, they are integral to the social and economic policy analyses required to attain the Congressional goals of prompt, reliable and efficient mail service to all people in all communities. See Hughes, 110 F.3d at 768-69. Under Gaubert, the Court need not inquire whether the Montclair Postmaster or any postal employee balanced economic, social, and political concerns in opting not to implement security measures. This Court must presume that the determination of the Montclair Postmaster was grounded in policy when he exercised the permissible discretion. Accordingly, the Court declines to second-guess the United States' resource allocation decision here.
The Court further rejects plaintiffs' argument that "it is not the decision to rely on the local police that is at issue, it is the Postal Service's negligence in the operational aspect of that decision that is at issue." Plaintiffs' Joint Brief in Opposition to United States of America's Motion to Dismiss, at 9. Plaintiffs argue that had Montclair postal employees alerted the police that the robbery was in progress, Green's crime could have been interrupted and lives could have been saved. In support of this contention plaintiffs cite Chachere v. United States, 1990 U.S. Dist. LEXIS 10633, 1990 WL 120618 (E.D. La. Aug. 14, 1990). In Chachere, the court was not faced with a postmaster's non-implementation of security measures, but rather with questions concerning the effectiveness of security measures which had already been implemented by the post office. Id. at *2 ("[Plaintiff] alleges that she was injured because the government-employed security guards were 'goofing off,' ill-trained, incompetent, or simply not doing what they were hired by defendant to do."). The court declined to dismiss plaintiff's complaint, holding that while a decision involving the implementation of security would constitute a discretionary function, once the United States undertook to provide security it was held to performing that duty with due care. Id. There being no such undertaking in the instant case, the Court finds plaintiffs' reliance on Chachere misplaced. Cf. Ramirez, 893 F. Supp. 121 at 124 (holding that Postal Service's decision not to promulgate security regulations was protected under discretionary function exception, and that even if security measures had been undertaken the negligent implementation of those policies would still fall within the exception).
Having found that the guidelines governing the Postal Service allowed for an exercise of judgment in security decisions and that the decision to rely solely on local law enforcement was "susceptible to policy analysis," the Court holds that the discretionary function exception of the FTCA bars plaintiffs' negligence claim against the United States in this case. Accordingly, Counts I and II of the complaint must be dismissed.
Olin and the Sports Authority's Motion to Dismiss
Counts V-VII: Strict Products Liability
The liability of a manufacturer and seller for injuries caused by a defectively designed product is governed by the New Jersey Products Liability Act (hereinafter the "NJPLA"), N.J. Stat. Ann. 2A: 58C-1 et seq. (West 1987), as amended by Act of June 29, 1995 (West Supp. 1997). The NJPLA provides in pertinent part:
2A: 58C-2 Liability of a manufacturer or seller; proof by preponderance of evidence product not reasonably fit, suitable or safe for its intended purpose A manufacturer or seller of a product shall be liable in a product liability action only if the claimant proves by a preponderance of the evidence that the product causing the harm was not reasonably fit, suitable or safe for its intended purpose because it...was designed in a defective manner.
2A: 58C-9 Identification of manufacturer; strict liability of product supplier