Vernon Parker, husband and LISA FARRINGER PARKER, wife v. United States of America

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERNON PARKER, husband and LISA
FARRINGER PARKER, wife,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
No. 11-16389
D.C. No. 2:10-cv-01407-SRB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Submitted December 6, 2012**
San Francisco, California
Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.
Appellants Vernon Parker and Lisa Farringer Parker appeal from the district
court’s order dismissing their Complaint for lack of subject matter jurisdiction and
FILED
DEC 10 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291, and now
affirm.
The district court found that the Parkers’ abuse of process claim was covered
by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. §
2680(a), and dismissed it for lack of subject matter jurisdiction. We agree. The
government has established that the Small Business Administration’s Office of
Inspector General’s investigation into VBP Group, LLC’s 8(a) certification
application was not subject to any legal constraint or mandatory procedure under
federal law; Special Agent Lee Bacon retained discretion, and his investigation was
“susceptible to a policy analysis.” Green v. United States, 630 F.3d 1245, 1249,
1251 (9th Cir. 2011) (quotation marks omitted). The subjective motivations or
procedural irregularities the Parkers allege are irrelevant, as this discretionary
government function as a whole is excepted from the FTCA’s waiver of sovereign
immunity. United States v. Gaubert, 499 U.S. 315, 324-25 (1991); Sabow v.
United States, 93 F.3d 1445, 1452 n.6, 1454 (9th Cir. 1996). This investigation
was not only susceptible to a policy analysis, but was informed by policy

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1 The district court ruled, in the alternative, that the Parkers had failed to
state a claim for abuse of process. We need not reach this ruling, as we have
already affirmed the dismissal of this claim on jurisdictional grounds.
3
considerations in ascertaining whether a regulatory scheme’s rules had been
violated. This claim was properly dismissed for lack of jurisdiction. 1
The district court also dismissed the negligent supervision claim for failure
to state a claim. However, since the discretionary function exception is a threshold
jurisdictional matter, we must resolve this question prior to reaching the motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6). We may affirm on any
grounds supported by the record, Schechner v. KPIX-TV, 686 F.3d 1018, 1022-23
(9th Cir. 2012), and now hold that the Parkers’ negligent supervision claim is also
barred by the discretionary function exception. The Ninth Circuit has stated that
negligent supervision claims “fall squarely within the discretionary function
exception.” Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000); see also
Gager v. United States, 149 F.3d 918, 921-22 (9th Cir. 1998). The SBA’s
supervision of its staff is clearly a discretionary function, entails the consideration
of policies and competing administrative and investigatory priorities, and is
therefore immunized from liability under the FTCA. The district court’s ruling is
therefore affirmed on the alternative ground of lack of subject matter jurisdiction.
AFFIRMED.

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