Shu v. United States of America

Background

David Shu, who represented himself, filed a First Amended Complaint against the United States. The court reviewed the complaint under 28 U.S.C. § 1915, which requires screening of a complaint filed by a person seeking to proceed without paying filing fees. Shu’s original complaint had asserted claims under the Federal Tort Claims Act (FTCA) and a contract claim against the United States Postal Service under 39 U.S.C. § 1208. The court previously denied his request to proceed without paying fees, found that he had failed to state a claim, and allowed amendment only of the FTCA claim.

The amended complaint concerned Shu’s termination from employment with the Postal Service after a March 24, 2015 arbitration. Shu alleged that arbitrator Nancy Hutt certified a fraudulent traffic-accident claim and that the United States should have discovered information about Hutt’s qualifications and alleged misconduct and disqualified her. He characterized the government’s hiring, retention, or selection of Hutt as negligent and alleged that her selection was governed by Postal Service policies and professional-responsibility rules.

Administrative Exhaustion

The court explained that the FTCA generally requires a claimant to first present the claim to the appropriate federal agency. The presentation must include a written description of the injury and a specific amount of damages, known as a “sum certain.” The amended complaint alleged that Shu notified the Postal Service, but his attached letter requested that he be “made whole” for “all the damages,” with the amount to be calculated when the case ended.

The court held that this did not satisfy the sum-certain requirement. Shu argued that he could not provide a specific amount because his losses were ongoing, but the court found that explanation insufficient. It concluded that the amended complaint did not plausibly show that Shu had presented an adequate claim before filing suit or that the court had jurisdiction over the FTCA claim. The court also found that further amendment would be futile because Shu had already been given an opportunity to address the issue and his attached notice showed that he had not provided a specific damages amount.

Sovereign Immunity

The court separately held that the FTCA’s discretionary-function exception barred the claim. That exception preserves the government’s sovereign immunity—its protection from being sued—for claims based on a federal agency’s or employee’s discretionary judgments.

The court found both required elements of the exception. First, selecting Hutt involved judgment or choice, despite Shu’s allegation that the decision was not discretionary. Second, the selection was the type of decision the exception protects because appointing an arbitrator involved weighing the importance and priority of employee grievances against the availability of arbitrators. The court rejected Shu’s reliance on Postal Service provisions concerning personal qualifications, discipline, and honesty, finding that those provisions did not eliminate the Postal Service’s discretion in hiring, retaining, or supervising an arbitrator. The court also found that Shu had not plausibly identified a law or rule requiring the arbitrator to be a California-licensed attorney.

Disposition

Judge Haywood S. Gilliam, Jr. ordered that the First Amended Complaint be dismissed without leave to amend and with prejudice. The court directed the Clerk to enter judgment in favor of the defendants and close the case. It also struck Docket No. 22 from the docket and stated that no requests for reconsideration or other motions would be considered or accepted in the closed case; issues Shu wished to raise had to be raised on appeal.