446 F.3d 262 (1st Cir. 2006), 05-2690, McCloskey v. Mueller

Docket Nº05-2690.
Citation446 F.3d 262
Party NameThomas S. McCLOSKEY and Kevin P. McCloskey, As Co-Administrators of the Estate of Philip McCloskey, Plaintiffs, Appellants, v. Robert S. MUELLER III, In His Capacity as Director of the Federal Bureau of Investigation, et al., Defendants, Appellees.
Case DateMay 16, 2006
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

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446 F.3d 262 (1st Cir. 2006)

Thomas S. McCLOSKEY and Kevin P. McCloskey, As Co-Administrators of the Estate of Philip McCloskey, Plaintiffs, Appellants,


Robert S. MUELLER III, In His Capacity as Director of the Federal Bureau of Investigation, et al., Defendants, Appellees.

No. 05-2690.

United States Court of Appeals, First Circuit.

May 16, 2006

Heard April 5, 2006.


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[Copyrighted Material Omitted]

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Kevin J. Reddington for appellants.

Carol L. Shea, Special Assistant United States Attorney (Chief, Civil Division, District of Vermont), with whom David v. Kirby, United States Attorney (District of Vermont), was on brief, for federal appellees.

Gary Lee Sampson on brief pro se ipso.

Before Selya and Lipez, Circuit Judges, and Saylor, [*] District Judge.

SELYA, Circuit Judge.

this appeal arises out of a tragic series of events that culminated in the murder of Philip McCloskey. The co-administrators of the victim's estate sought damages from both the federal government and the murderer, Gary Lee Sampson. The district court dismissed their action. See McCloskey v. Mueller, 385 F.Supp.2d 74, 88 (D. Mass. 2005). Because there is no principled way that the frontiers of tort law can be expanded to encompass the theory of liability that the co-administrators have premised on these horrific facts, we affirm the order of dismissal.


Because the district court disposed of this case on a motion to dismiss, see Fed.R.Civ.P. 12(b), we glean the relevant facts from the co-administrators' amended complaint (assuming, without determining, that those facts are true), supplemented by certain undisputed items.

On July 23, 2001, Sampson telephoned the Boston office of the Federal Bureau of Investigation (FBI) and spoke with an FBI employee, William H. Anderson. Sampson explained to Anderson that he was in Abington, Massachusetts; that he was wanted for armed robbery; and that he wished to surrender to the authorities. Anderson disconnected the call either accidentally or purposely — the amended complaint contemplates both possibilities — and made no attempt to reconnect it, investigate it, or report it to any other law enforcement officer.

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Sampson never called back; instead, after spending several hours fruitlessly awaiting the FBI's arrival in Abington, he embarked upon a "killing spree." The spree began the next day when Sampson abducted and murdered a complete stranger, Philip McCloskey. Before local authorities finally apprehended him on July 31, Sampson had killed two other men as well.

Sampson eventually pleaded guilty to a federal charge of carjacking resulting in Philip McCloskey's death. See 18 U.S.C. § 2119(3). Following a penalty-phase trial, the district court imposed a death sentence. See United States v. Sampson, 300 F.Supp.2d 275 (D. Mass. 2004). That sentence is currently on appeal.

After initially denying that a Sampson-initiated telephone call ever took place, Anderson finally admitted the call's occurrence. In due season, Thomas and Kevin McCloskey, co-administrators of Philip McCloskey's estate, notified the United States, see 28 U.S.C. § 2675(a), and then commenced a civil action in the United States District Court for the District of Massachusetts. They asserted damages claims under both the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, and 42 U.S.C. § 1983, against the United States, the FBI, Robert S. Mueller III, in his official capacity as director of the FBI, and Anderson (collectively, the federal defendants).1 They also advanced pendent state-law claims for wrongful death against Sampson.

The federal defendants filed an omnibus motion to dismiss. See Fed.R.Civ.P. 12(b)(1), (6). Sampson likewise moved to dismiss the claims against him. The co-administrators filed a timely opposition.

After pondering the matter, the district court dismissed the case in toto. See McCloskey, 385 F.Supp.2d at 88. The court held that, under the FTCA, the United States was the only proper defendant and dismissed the tort claims against the FBI, Mueller, and Anderson for that reason. See id. at 77-78. It then concluded that it was without subject-matter jurisdiction over the FTCA claims against the United States because of the discretionary function exception, see id. at 79-81 (citing 28 U.S.C. § 2680(a)), and, alternatively, because the government would not be liable under Massachusetts law had it been acting as a private person in the same or similar circumstances, see id. at 81-85 (citing 28 U.S.C. § 1346(b)). The court dispatched the section 1983 claims for failure to allege any action under color of state authority. Id. at 87. Once it had dismissed the federal claims, the court declined to exercise supplemental jurisdiction over the state-law claims against Sampson. Id. at 88 (citing 28 U.S.C. § 1367(c)(3)). This timely appeal ensued.


We begin our analysis by acknowledging the applicable standard of review. We then address, in turn, the FTCA and section 1983 claims. Finally, we touch upon the dismissal of the claims against Sampson.

A. Standard of Review.

The district court dismissed the FTCA counts for want of subject-matter jurisdiction

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and the section 1983 counts for failure to state an actionable claim. Although these rulings derive from different subsections of Rule 12(b), compare Fed.R.Civ.P. 12(b)(1), with Fed.R.Civ.P. 12(b)(6), our standard of review sounds the same familiar refrain.

Under either rule, we review the lower court's dismissal order de novo, accepting the plaintiffs' well-pleaded facts as true and indulging all reasonable inferences to their behoof. See, e.g., Dominion Energy Brayton Point, LLc v. Johnson, 443 F.3d 12, 16 (1st Cir.2006) (Rule 12(b)(1)); Redondo-Borges v. U.S. Dep't of Hous. & Urban Dev., 421 F.3d 1, 5 (1st Cir.2005) (Rule 12(b)(6)). We are not wedded to the lower court's rationale and may affirm an order of dismissal on any basis made apparent by the record. See Gabriel v. Preble, 396 F.3d 10, 12 (1st Cir.2005).

B. The FTCA Claims.

"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). The FTCA embodies one instance of such consent. It comprises a limited waiver of the federal government's sovereign immunity, Shansky v. United States,164 F.3d 688, 690 (1st Cir. 1999), and grants federal courts jurisdiction over claims against the United States that fall within its ambit. This includes claims

for injury or loss of property, or personal 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).

Here, the co-administrators assert in substance that the federal defendants were negligent in failing to apprehend Sampson after his attempted surrender.2 That negligence, they posit, resulted in Philip McCloskey's death. Although the co-administrators name various federal defendants in these counts, the United States is the only proper defendant in such an action. See 28 U.S.C. §§ 1346(b), 2674, 2679; see also Roman v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000). Consequently, the district court correctly held that no FTCA claim can lie against the FBI, Mueller, or Anderson.

Against this backdrop, we turn to the FTCA claims against the United States.3 To survive, an FTCA claim must successfully surmount the jurisdictional hurdle erected by 28 U.S.C. § 1346(b). That section restricts the liability of the United States to circumstances in which "a private person would be liable . . . in accordance with the law of the place where the act or omission occurred." Id. Since every relevant event in this case occurred in Massachusetts, the substantive law of that jurisdiction

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constitutes the "law of the place" for present purposes. Thus, the co-administrators must identify some basis in Massachusetts law for holding a private party liable in tort for acts or omissions comparable to those they attribute to the FBI and its functionaries. See Bolduc v. United States, 402 F.3d 50, 56 (1st Cir. 2005).

In appraising the height of this hurdle, it is important to frame the scope of our inquiry. The search for analogous state-law liability is circumscribed by the explicit language of the FTCA, which restricts that search to private liability. See Sea Air Shuttle Corp. v. United States, 112 F.3d 532, 537 (1st Cir. 1997). In other words, we must look for "some relationship between the governmental employee[] and the plaintiff to which state law would attach a duty of care in purely private circumstances." Id. (citation and internal quotation marks omitted).

The flip side of this coin is that we are not at liberty to derive analogues from instances in which state law enforcement officers — and only state law enforcement officers — would be liable under state law. In the FTCA milieu, "the federal government does not yield its immunity with respect to obligations that are peculiar to governments or official-capacity state actors and which have no private counterpart in state law." Bolduc, 402 F.3d at 57.

Refined to bare essence, our obligation is to appraise the height of the section 1346(b) hurdle through a narrowed lens and ask only whether, under Massachusetts law, a private party who is approached by a fugitive seeking to turn himself in would be guilty of actionable negligence if he did nothing in response and the fugitive thereafter committed a series of violent crimes. On the pleadings...

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