Aida Gordo-González v. United States of America

United States Court of Appeals
For the First Circuit
No. 16-2276
AIDA GORDO-GONZÁLEZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Barron, Selya and Lipez,
Circuit Judges.
José R. Olmo-Rodríguez on brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Mainon A. Schwartz, Assistant United
States Attorney, on brief for appellee.
October 3, 2017

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SELYA, Circuit Judge. Plaintiff-appellant Aida Gordo-
González asserts that her then-husband, an agent of the Federal
Bureau of Investigation (FBI), used surveillance equipment
belonging to his employer to keep tabs on her during their
marriage. Employing this assertion as a fulcrum, she sued the
United States under the Federal Tort Claims Act (FTCA), 28 U.S.C.
§§ 1346(b), 2671-2680. She alleged that the FBI had negligently
supervised her then-husband's use of its surveillance equipment,
thus enabling his invasion of her privacy.
In a thoughtful rescript, the district court dismissed
the suit for want of subject-matter jurisdiction. Gordo-González
v. United States, No. 15-cv-1602 (D.P.R. July 22, 2016)
(unpublished). After careful consideration, we agree that the
FTCA's discretionary function exception applies and, therefore,
that the government has not waived its sovereign immunity.
Accordingly, we affirm.
We draw the facts from the plaintiff's complaint. See
Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003).
Sometime during the marriage between the plaintiff and her former
husband (an FBI agent), the plaintiff discovered that he had used
FBI equipment, including GPS devices and video recording
paraphernalia, to monitor her whereabouts and activities. Shortly
after making this disturbing discovery, she instituted divorce
proceedings.

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Once divorced, the plaintiff sued the United States
under the FTCA. Her barebones complaint alleged that her ex-
husband had improperly used equipment belonging to the FBI and
that his superiors were negligent in failing to supervise him
adequately, thus allowing him to engage in the inappropriate
surveillance. 1 The government moved to dismiss the complaint for,
inter alia, lack of subject-matter jurisdiction. See Fed. R. Civ.
P. 12(b)(1). The district court granted the motion. See Gordo-
González, slip op. at 5. This timely appeal followed.
Where, as here, a dismissal for want of jurisdiction is
based solely on the complaint, we accept "the well-pleaded factual
averments contained therein and indulg[e] all reasonable
inferences in the [plaintiff's] favor." Muñiz-Rivera, 326 F.3d at
11. In that posture, this court affords de novo review to the
district court's order of dismissal. See Limone v. United States,
579 F.3d 79, 101 (1st Cir. 2009).
Here, however, a special gloss applies. It is a bedrock
rule that a party seeking to invoke the jurisdiction of a federal
court must bear the burden of demonstrating the existence of such
jurisdiction. See Murphy v. United States, 45 F.3d 520, 522 (1st
Cir. 1995). "The pleading standard for satisfying the factual
1 The plaintiff has acknowledged that the government is not
vicariously liable for her former husband's conduct outside the
scope of his employment. Consequently, that issue is not before
us.

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predicates for proving jurisdiction is the same as applies under
Rule 12(b)(6) — that is, the plaintiff[] must 'state a claim to
relief that is plausible on its face.'" Labor Relations Div. of
Constr. Indus. of Mass., Inc. v. Healey, 844 F.3d 318, 326-27 (1st
Cir. 2016) (quoting Román-Oliveras v. P.R. Elec. Power Auth., 655
F.3d 43, 45 n.3, 49 (1st Cir. 2011)). As a result, an order
granting a motion to dismiss at the pleading stage is appropriate
only when the facts adumbrated in the plaintiff's complaint, taken
at face value, fail to bring the case within the court's subject-
matter jurisdiction. See Muñiz-Rivera, 326 F.3d at 11.
In applying this standard in the case at hand, sovereign
immunity looms large. "It is beyond cavil that, as the sovereign,
the United States is immune from suit without its consent."
Muirhead v. Mecham, 427 F.3d 14, 17 (1st Cir. 2005). Of course,
the FTCA is one instance of such consent; it waives the sovereign
immunity of the United States with respect to certain torts
committed by federal employees acting within the scope of their
employment. See Bolduc v. United States, 402 F.3d 50, 55 (1st
Cir. 2005). At the same time, the FTCA gives federal courts
jurisdiction over such claims. See id.
Even so, the FTCA is not a silver bullet for would-be
plaintiffs. "As with all waivers of sovereign immunity," the FTCA
must be strictly construed in favor of the government. Id. at 56
(citing United States v. Horn, 29 F.3d 754, 762 (1st Cir. 1994)).

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Moreover, this particular waiver is subject to a gallimaufry of
exceptions. See 28 U.S.C. § 2680(a)-(n). Accordingly, a complaint
can survive a motion to dismiss only if it contains sufficient
facts to demonstrate that the FTCA applies to the claims asserted
and that none of the FTCA's manifold exceptions is apposite.
In this instance, the district court deemed the
discretionary function exception, see 28 U.S.C. § 2680(a), to be
dispositive. We begin our analysis there. Under the discretionary
function exception, the United States does not waive sovereign
immunity for any tort that arises from "the exercise or performance
or the failure to exercise or perform a discretionary function or
duty . . . whether or not the discretion involved be abused." Id.
Courts have used a familiar analytic framework in determining
whether Congress intended to shield particular conduct from
liability under this exception. See, e.g., Fothergill v. United
States, 566 F.3d 248, 252 (1st Cir. 2009). An inquiring court
must first identify the conduct giving rise to the claim asserted
and then determine whether that conduct can fairly be characterized
as discretionary. See id. 2 Once this hurdle is cleared, it remains
for the court to determine whether the exercise of the discerned
2 This taxonomy excludes actions prohibited by federal
statutes, regulations, or policies. See Berkovitz ex rel.
Berkovitz v. United States, 486 U.S. 531, 535-36 (1988). Virtually
by definition, such actions cannot be classified as
"discretionary."

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discretion "is susceptible to policy-related judgments." Bolduc,
402 F.3d at 60; see Irving v. United States, 162 F.3d 154, 162
(1st Cir. 1998). In fine, section 2680(a) will strip a court of
subject-matter jurisdiction only if the challenged conduct is both
discretionary and policy-driven. See Bolduc, 402 F.3d at 60.
Against this backdrop, we turn to the plaintiff's
complaint. The plaintiff submits that paragraph 16 of the
complaint identifies the challenged governmental conduct. That
paragraph states: "The employees of the US in charge of supervising
[the plaintiff's ex-husband], and the use that he gave to the
special equipment provided to him, were negligent by failing to
supervise him adequately, thereby allowing him to make
inappropriate use of said equipment." In short, the challenged
conduct is the FBI's negligent failure to supervise the ex-
husband's inappropriate actions.
The question reduces, then, to whether this challenged
conduct can fairly be said to be discretionary. See Berkovitz ex
rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988). The
plaintiff points to no federal statute, regulation, or policy that
dictates any specific supervisory actions that her ex-husband's
superiors were required to take. Cf. Sheridan v. United States,
487 U.S. 392, 401 (1988) (concluding that where naval hospital had
specific regulations prohibiting possession of firearms and
requiring all personnel to report presence of firearms, United

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States could be held liable under FTCA when officers encountered
armed man and failed to report him).
To be sure, in her opposition to the government's motion
to dismiss, the plaintiff did cite to a regulation, namely, 5
C.F.R. § 2635.704(a). This regulation imposes a general duty on
all federal employees to refrain from using government property
(and not to allow others to use government property) for any
unauthorized purpose. Although this regulation does "intimate
that [agency officials] are under an obligation" not to countenance
unauthorized use of FBI equipment by subordinates, it does not
purport to "direct the manner in which the supervision is to be
carried out." Muñiz-Rivera, 326 F.3d at 16. Nor does it
necessitate the taking of any specific action that the plaintiff
plausibly might contend would have prevented her ex-husband's
misuse of FBI equipment. The bottom line, then, is that the
plaintiff has identified no law, regulation, or other requirement
that bears upon how those who were managing the agency should have
supervised her ex-husband. Nor has the plaintiff identified any
law, regulation, or other requirement that somehow tied the FBI's
hands in any relevant respect. 3 See Fothergill, 566 F.3d at 253.
3 We note that the plaintiff sought leave to undertake
discovery in an effort to identify such a statute or rule.
Litigants, though, are not entitled to use pretrial discovery to
find out if they have a cause of action. See Mills v. Maine, 118
F.3d 37, 50-51 (1st Cir. 1997). Here, moreover, the information
that the plaintiff sought was primarily a matter of public record.

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It follows inexorably, as night follows day, that the challenged
conduct is discretionary.
This brings us to the final step of the inquiry:
determining whether the discretion enjoyed by FBI hierarchs with
respect to the supervision of agents "is of the type and kind that
Congress sought to safeguard through the discretionary function
exception." Fothergill, 566 F.3d at 253 (citing United States v.
Gaubert, 499 U.S. 315, 322-23 (1991)). By its very nature,
supervision is an ad hoc exercise, sensitive to policy
considerations, the type of work being performed, and the
experience and training of those performing that work. It almost
always demands flexibility. See Attallah v. United States, 955
F.2d 776, 784 (1st Cir. 1992) (concluding that "how, and to what
extent the [agency] supervises its employees certainly involves a
degree of discretion and policy considerations of the kind that
Congress sought to protect through the discretionary function
exception"). So it is here.
This view is consistent with our earlier conclusion that
"the development and management of a supervisory model is a matter
of agency discretion" and involves "an unrestrained balancing of
A decision whether to grant or deny discovery before deciding
jurisdictional issues rests within the district court's wide
discretion. See Dynamic Image Techs., Inc. v. United States, 221
F.3d 34, 38 (1st Cir. 2000). We discern no abuse of that wide
discretion with regard to the district court's denial of the
plaintiff's request for discovery.

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incommensurable values." Bolduc, 402 F.3d at 60-61 (internal
quotation marks omitted). Inherent in the performance of
supervisory tasks are considerations of policy, a balancing of
competing interests, and careful decisionmaking regarding the
level of micro-management of one's subordinates. Given these
realities, we have no hesitancy in holding that the conduct at
issue here falls squarely within the maw of the discretionary
function exception. Therefore, the FTCA does not effect a waiver
of the federal government's sovereign immunity in the
circumstances of this case.
Let us be perfectly clear. There may be times when
supervisory conduct is non-discretionary, such that the FTCA's
waiver of sovereign immunity is unimpaired. See, e.g., Sheridan,
487 U.S. at 401. But without pleading specific facts sufficient
to show that the challenged conduct did not involve a discretionary
function, the plaintiff cannot lay claim to the FTCA's waiver of
sovereign immunity.
We need go no further. For the reasons elucidated above,
the district court's order of dismissal for want of subject-matter
jurisdiction is
Affirmed.

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