Personally v. United States

814 F.3d 1022

Gina M. GONZALEZ, personally and as next best friend of A.F., a minor, Plaintiff–Appellant,

v.UNITED STATES of America, Defendant–Appellee.

No. 13–15218.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 12, 2015.

Filed Feb. 24, 2016.

Thomas G. Cotter (argued) and Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson, AZ, for Plaintiffs–Appellants.

Steve Frank (argued) and Mark B. Stern, Appellate Staff Attorneys; Stuart F. Delery, Assistant Attorney General; John S. Leonardo, United States Attorney; United States Department of Justice, Civil Division, Washington, D.C., for Defendant–Appellee.

Before: MARSHA S. BERZON, JAY S. BYBEE, and JOHN B. OWENS, Circuit Judges.

Opinion by Judge BYBEE

; Dissent by Judge BERZON.

OPINION

BYBEE, Circuit Judge:

The discretionary function exception of the Federal Tort Claims Act ("FTCA") immunizes the federal government from claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty" on the part of the government. 28 U.S.C. § 2680(a). We consider whether, under Attorney General guidelines, the FBI's failure to disclose information to local law enforcement regarding a home invasion threatened by private persons against unspecified victims constitutes a "failure to exercise or perform a discretionary function or duty" pursuant to § 2680(a), barring Gonzalez's suit. We hold that the FBI's decision whether or not to disclose was discretionary, and we affirm the judgment of the district court dismissing the suit.

I

A. Factual Allegations

Plaintiffs–Appellants Gina Gonzalez and her minor daughter, A.F. ("Gonzalez"), allege that in April 2009, the FBI learned of communications among members of the Minutemen American Defense, an activist group that advocates against illegal immigration and patrols the U.S.–Mexico border for illegal crossings.¹ That month, Shawna Forde called Ronald Wedow, another member of the Minutemen in Arizona, and told him that she knew someone in Arivaca, Arizona who would provide her with "information about illegal immigrants." Wedow passed this information along to his friend Robert Copley, who spoke with Forde several times over the course of that month. Forde told Copley that the Minutemen planned to conduct an "operation" in Arivaca, in which they would invade a home to steal drugs, weapons, and money.

At Forde's request, Copley set up a meeting in Aurora, Colorado at a Flying J truck stop to recruit individuals for the operation. But Copley, unbeknownst to Forde, had contacts at the FBI. And after setting up the Aurora meeting, Copley informed his FBI contact, Agent Chris Andersen, of the meeting. He asked Agent Andersen to send an undercover FBI agent to the meeting. Andersen declined, but instructed Copley to attend, gather information, and report back.

The meeting in Aurora took place on May 15, 2009. Forde, Copley, Wedow, and several others attended. Forde described her plan to invade a home in Arivaca, which she believed to be a crossroads for drug and weapons trafficking, for the purpose of "securing" it and stealing contraband that she suspected would be inside. She explained that her plan involved forming two "crews": the first to "secure" the residents of the home, and the second to steal the drugs, weapons, and cash. She then drew a map of the area where the target home was located.

Following the meeting, Copley reported to Agent Andersen. He informed Agent Andersen of Forde's plan to "secure" the residents of the home, explaining that "securing" meant "hitting the house like a SWAT team ... going in armed." Copley told Andersen that he considered the threat posed by the planned invasion to be "real and imminent." He also provided Andersen with the map showing the approximate area of the attack. Gonzalez alleges that Andersen provided the map to the Phoenix FBI office but that the map was lost in Phoenix. She also alleges that the FBI never alerted local law enforcement in Arivaca—the Pima County Sheriff's Department—of any of this information.

Fifteen days after the Aurora meeting, on May 30, 2009, three masked intruders entered Gonzalez's home in Arivaca in the early morning hours. They fatally shot Gonzalez's husband, Raul Flores, in view of Gonzalez and their nine-year-old daughter, B.F. They then wounded Gonzalez, shooting her in the shoulder and leg. Finally, a gunman reloaded his weapon and shot B.F. in the face, killing her instantly. The intruders withdrew from the home. Gonzalez crawled to the next room, grabbed her husband's handgun, and called 911. While she was on the 911 call, a gunman returned and attempted to shoot Gonzalez again, and Gonzalez shot him in the leg. The intruder's injury eventually led to the identification, arrest, and prosecution of the three perpetrators. One of them was Shawna Forde.

B. Proceedings

Gonzalez filed a complaint in U.S. District Court for the District of Arizona on behalf of herself and her surviving daughter, A.F., who was at her grandmother's house at the time of the attack. The complaint alleged that the United States is liable under the FTCA for damages arising out of the attack because the FBI negligently failed to disclose the information about the impending home invasion to local law enforcement, in contravention of the Attorney General's Guidelines for Domestic FBI Operations ("Guidelines"). Section VI(C)(2) of these Guidelines provides that the FBI "shall promptly transmit" to local law enforcement information concerning "serious criminal activity not within the FBI's investigative jurisdiction," unless disclosure would compromise an ongoing investigation, endanger others, or reveal privileged information. Gonzalez and A.F. sought damages for the wrongful death of Raul Flores and B.F. Gonzalez also sought damages for her own personal injuries, pain, and suffering.

The United States filed a motion to dismiss, arguing, among other things, that the court lacked subject matter jurisdiction over this FTCA case because of the discretionary function exception. The district court granted the motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The court denied Gonzalez's request for jurisdictional discovery as futile. Gonzalez v. United States, No. CV 12–00375, 2013 WL 308762, at *7–8 (D.Ariz. Jan. 25, 2013). Gonzalez filed a timely appeal to this court.

II

The FTCA authorizes private suits against the United States for damages for loss of property, 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)(1). The Act operates as a limited waiver of sovereign immunity from suits for negligent or wrongful acts of government employees, United States v. Gaubert, 499 U.S. 315, 318 n. 4, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991), which constitute "ordinary common-law torts," Dalehite v. United States,

346 U.S. 15, 28, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). See 28 U.S.C. § 2674 (the United States is liable for tort claims "in the same manner and to the same extent as a private individual under like circumstances").

There are several exceptions to the FTCA. The exception relevant for our purposes is the discretionary function exception, which provides that the government has not waived immunity for 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 [is] abused.

28 U.S.C. § 2680(a). This exception "prevent[s] 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. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The "discretion protected by [§ 2680(a) ] .... is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law." Dalehite, 346 U.S. at 34, 73 S.Ct. 956 (internal quotation marks omitted). Accordingly, "[w]here there is room for policy judgment and decision there is discretion." Id. at 36, 73 S.Ct. 956. The government bears the burden of demonstrating that the discretionary function exception applies. GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th Cir.2002). Where the exception applies, the United States has not waived its sovereign immunity and we lack subject matter jurisdiction over the claims. Id. at 1173 ; see United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) ; United States v. Park Place Assocs., Ltd., 563 F.3d 907, 924 (9th Cir.2009) (explaining that the FTCA waiver of sovereign immunity is coextensive with the conferral of jurisdiction (citing 28 U.S.C. § 1346 )).

The Supreme Court has prescribed a two-part test for determining whether the discretionary function exception applies. Berkovitz v. United States, 486 U.S. 531, 536–37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, courts are to ask whether the challenged action was a discretionary one—"that is, it must involve an element of judgment or choice." GATX/Airlog Co., 286 F.3d at 1173 (citing Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954 ). In addition to duties prescribed by the common law torts "of the place where the act or omission occurred," 28 U.S.C. § 1346(b)(1), federal employees must follow "federal statute[s], regulation[s], or polic[ies that] specifically prescribe[ ] a course of action for an employee to follow," GATX/Airlog Co., 286 F.3d at 1173. In such cases, "the employee has no...