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July 7, 2016
  Gonzalez v. U.S. - Ninth Circuit
Headline: Ninth Circuit held that Government is not liable under the Federal Tort Claims Act ("FTCA") when a Federal Agent fails to disclose information to law enforcement.

Area of Law:
Federal Tort Claims Act ("FTCA"); Tort Law

Issue Presented: Whether the discretionary function exception applies - immunizing the Government from liability under the FTCA - where the plaintiff alleges the FBI negligently failed to disclose information to local law enforcement under the Attorney General Guidelines, which provides that the FBI "shall promptly transmit" "serious criminal activity not within the FBI's investigation jurisdiction"?

Brief Summary:
Plaintiff brought a negligence claim, in the U.S. District Court, against the United States under the Federal Torts Claim Act ("FTCA") and sought damages for wrongful death, personal injuries, pain and suffering. Plaintiff alleges that an FBI Agent failed to disclose information to law enforcement that the Minutemen American Defense planned an attack to invade plaintiff's home. Three masked intruders (later identified as members of the Minutemen American Defense) entered plaintiff's home and fatally shot - execution style - the plaintiff's husband and nine-year-old daughter.

The defendant filed a Motion to Dismiss on the grounds that the court lacked subject matter jurisdiction over the FTCA claim because the discretionary function exception applied. The District Court granted the Motion to Dismiss and Plaintiff appealed.

The Ninth Circuit panel analyzed the discretionary function exception and applied the Berkowitz two-prong test - the "Discretionary Act" and the "Policy Judgment" - in holding that the FBI's decision on whether to disclose information to local law enforcement was discretionary and therefore shielded the government from liability under the FTCA. Affirmed.

Significance: The Ninth Circuit panel broadened the discretionary function exception to include negligence claims for the FBI's failure to inform local law enforcement, even though such actions violated the Attorney General Guidelines; and further held that the two-prong standard in Berkowitz was satisfied when the FBI made the decision of whether or not to disclose information to law enforcement, and the government was therefore immune from the plaintiff's tort claim

Extended Summary: Plaintiff-appellant Gina Gonzalez and her minor daughter, A.F. ("Plaintiff") allege the government was liable for negligence when FBI Agent Chris Anderson, failed to disclose information to law enforcement after he learned of a planned home invasion among members of the Minutemen American Defense ("Minutemen") - an activist group that advocates against illegal immigration - against the Plaintiff.

FBI Agent Anderson learned from his informant, Robert Copley, of a possible attack on the plaintiff's home. The informant, who attended a Minutemen meeting, learned of a plan to conduct an "operation" in which the Minutemen would invade plaintiff's home and "secure" the residents, meaning "hitting the house like a SWAT team," to steal drugs, weapons, and money. Copley reported the information to Agent Anderson and provided a map of the approximate area of the attack. Copley told Agent Anderson that he considered the threat imposed by the planned invasion to be "real and imminent." Agent Anderson provided the map to the Phoenix FBI office, but the map was subsequently lost. FBI never provided local law enforcement with any of this information. Fifteen days following the Minutemen meeting, three masked intruders (later identified as members of the Minutemen American Defense) entered plaintiff's home and fatally shot - execution style - the plaintiff's husband and nine-year-old daughter. Although she survived, the plaintiff was wounded in the shoulder and leg.

Plaintiff filed a negligence claim in the U.S. District Court for the District of Arizona claiming the government was liable under the FTCA and sought damages for wrongful death, personal injuries, pain and suffering. 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." The plaintiff applied the FTCA and claimed the FBI negligently failed to disclose the information regarding the impending home invasion to local law enforcement, in contravention of the Attorney General's Guidelines. These guidelines provided the FBI "shall promptly transmit" to local law enforcement information concerning "serious criminal activity not within the FBI's investigation jurisdiction."

Defendant filed a Motion to Dismiss on the grounds that the court lacked subject matter jurisdiction over the FTCA claim because the discretionary function exception applied. The discretionary function exception immunized 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." The policy is that this exception "prevent[s] judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy." The discretion protected is the "discretion of the executive or the administrator to act according to one's judgment of the best course." The district court granted the motion to dismiss and plaintiff appealed.

In affirming the district court's decision, the Ninth Circuit panel cited the Supreme Court's prescribed two-prong test from Berkowitz. The first prong is called the "discretionary act" where the courts are to ask whether the challenged action was a discretionary one; "that is, it must involve an element of judgment or choice." The second is called the "policy judgment" prong where the focus is on the nature of the actions taken, and whether they are susceptible to policy analysis.

Under the first prong, the Discretionary Act, the Ninth Circuit panel concluded that the FBI's decision whether or not to disclose the information regarding potential threats was discretionary. The panel stated that in order to satisfy the Discretionary Act prong, it must look to see if there is some kind of "federal statute, regulation, or policy that specifically prescribes a course of action for an employee to follow," (i.e. duty).

Plaintiff argued that the Attorney General Guidelines served as a regulation for the FBI's duty to disclose information to local law enforcement. The Ninth Circuit panel held that in spite of the mandatory-sounding language in the guidelines, courts have consistently held, where a government agent's performance of an obligation requires an agent to make judgment calls, the discretionary function exception applies. The Ninth Circuit panel reasoned that FBI agents must decide whether the information is credible, whether the criminal activity is serious, and whether there is any other reason relating to the FBI's other operations that counsels against transmitting the information. Therefore, the Ninth Circuit panel held the district court properly concluded that the guidelines did not prescribe a regulation for a mandatory course of conduct and the FBI's actions were discretionary. The Ninth Circuit panel further held that "viewed in context, the mandatory-sounding language such as 'shall' does not overcome the discretionary character of the guidelines."

Under second prong, the Policy Judgment, the Ninth Circuit panel addressed whether the FBI's decisions made pursuant to the Attorney General Guidelines were susceptible to policy judgment. In determining if the conduct involves a policy judgment, the court does not look at the agent's subjective weighing of policy consideration, instead the court looks at the nature of the government's action, or omission, and decides whether it is 'susceptible' to policy analysis under an objective assessment. Here, the Ninth Circuit panel relied on Alfrey and concluded that the omission implicated social and public policy considerations and to decide what steps to take in response to a reported threat, an officer must set priorities among all extant risks. Here, the Ninth Circuit panel concluded the FBI's judgment on how to respond to a reported threat and how extensively to disclose information to other law enforcement implicated many risks, all of which must be weighed in accordance with the FBI's social and public policy judgments. Moreover, the Ninth Circuit panel held that the government is not required to provide proof that any decision actually involved the weighing of policy consideration, and the discretionary function exception applied so long as the challenged decision was one to which a policy analysis could apply.

Finally, the plaintiff argued that the FBI's failure to disclose information did not implicate policy concerns, to satisfy the second prong, due to the doctrine of "design-implementation distinction." This doctrine holds that "the design of a course of governmental action is shielded by the discretionary function exception, whereas the implementation of that course of action is not. Plaintiff argued the failure of the FBI to inform was part of the implementation and thus not shielded. The Ninth Circuit panel disagreed and relied on Weissich where the court held that even if the FBI negligently failed to carry out its own plan of disclosing information to local law enforcement, the focus for the discretionary function exception is on the discretionary and policy-based nature of the guidelines, not on its decisions and implementations.

Ultimately, the Ninth Circuit panel held the district court properly concluded that the government satisfied both prongs of the discretionary function exception. The panel also held the choices to disclose or not to disclose "are among the judgment-laden decisions the discretionary function exception was enacted to shield." Judgment affirmed.

Panel: Marsha S. Berzon, Jay S. Bybee, John B. Owens, Circuit Judges, and Jennifer G. Zipps, District Judge.

Argument Date: March 12, 2015

Date of Issued Opinion: February 24, 2016

Docket Number: 13-15218

Decided: Affirmed.

Case Alert Author: Kristina Coronado

Counsel: Thomas G. Cotter (argued) and Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, P.L.C. Tucson, Arizona, 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.

Author of Opinion: Jay S. Byzee, Circuit Judge

Case Alert Supervisor: Professor Ryan T. Williams

    Posted By: Ryan Williams @ 07/07/2016 06:15 PM     9th Circuit  

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