Gonzalez v. United States
| Decision Date | 24 January 2013 |
| Docket Number | CV 12-00375-TUC-JGZ |
| Parties | Gina M. Gonzalez, personally and as next best friend of A.F., a minor, Plaintiffs, v. United States of America, Defendant. |
| Court | U.S. District Court — District of Arizona |
This action arises from a home invasion that resulted in the murder of Robert Flores and his daughter, B.F., in Arivaca, Arizona. Gina M. Gonzalez, Flores's wife and the mother of B.F., was injured during the attack, and she now brings this action personally and on behalf of her other daughter A.F., alleging that the United States is liable for damages arising from the attack because of the FBI's negligence. Plaintiffs allege the FBI was made aware of, but failed to notify local law enforcement about the planned invasion.
On July 23, 2012, the United States filed a Motion to Dismiss contending that the Complaint fails to state a claim and that the Court lacks subject matter jurisdiction. (Doc. 5.) The Plaintiffs have opposed the motion, but have also submitted an affidavit asserting they cannot present facts essential to justify their opposition, and have requested time to take discovery. (Doc. 8.) Defendant opposes Plaintiffs' discovery request. (Doc. 9.)
This Court heard argument on November 26, 2012, and took the matter under advisement. Having fully considered the motion, applicable legal authority, and arguments of counsel, the Court concludes that it lacks subject matter jurisdiction, and therefore will grant Defendant's Motion to Dismiss.
The factual allegations of Plaintiffs' Complaint describe a series of communications between three individuals - Ronald Wedow, Shawna Forde and Robert Copley - with ties to the Minutemen Group, as well as Copley's communications with FBI Agent Andersen.1 According to Plaintiffs' Complaint, the following communications proceeded and led to the May 30, 2009 invasion of the home of Robert Flores and his family.
In approximately April 2009, Ronald Wedow received a phone call from Shawna Forde, a member of an organization called the Minutemen Group. (Complaint, Doc. 1, ¶ 7.) Forde told Wedow that she knew a person who lived in Arivaca, Arizona that wanted to provide her with information concerning illegal immigrants. (Id.) Wedow passed this information along to Robert Copley, whom Wedow knew to have contacts at the FBI. (Id.)
Copley spoke with Forde several times in April 2009 about her Minutemen operations in Arizona. (Id. ¶ 8.) At Forde's request, Copley set up a meeting in Aurora, Colorado, at a Flying J Truck Stop, to recruit individuals to join the Minutemen. (Id.) Copley informed FBI Agent Chris Andersen of Forde's plan to hold a meeting at the gas station.2 (Id. ¶ 9.) Copley requested that an undercover FBI agent attend the meeting. (Id.) Agent Andersendeclined to do so, but instructed Copley to attend the meeting and report his findings to him. (Id.)
On May 15, 2009, Copley, Wedow and several other individuals attended the meeting in Aurora. (Id. ¶ 10.) At the meeting, Forde described her plan to invade a home in Arivaca for the purpose of "securing" it and stealing drugs, weapons and money. (Id.) Forde displayed a map of the area where the home was located. (Id. ¶ 11.)
Following the meeting, Copley reported what was discussed to Agent Andersen. (Id. ¶ 12.) Copley informed Agent Andersen of Forde's intention to "secure" the residents in the home, which meant "hitting the house like a SWAT team . . . going in armed." (Id.) Copley provided Agent Andersen with a map that had been drawn on poster board by Forde during the meeting which showed the approximate location of the targeted home. (Id.) Plaintiffs believe and allege that Agent Andersen provided the map to the FBI's office in Phoenix, Arizona, where it was lost. (Id. ¶ 13.) Plaintiffs also allege that Copley told Agent Andersen that he considered the threat posed by Forde to be real and imminent. (Id. ¶ 14.)
On May 30, 2009, Raul Flores and his daughter B.F. were shot and killed during a home invasion led by Forde. (Id. ¶ 27, 29.) Gina Gonzalez, who witnessed the killings, was shot twice and wounded. (Id. ¶ 28.)
On May 15, 2012, Plaintiffs initiated this action against the United States. In their Complaint, Plaintiffs assert that Agent Andersen and the FBI violated Department of Justice (DOJ) written rules that required FBI field officers who receive credible information pertaining to serious criminal activity outside the field office's investigative jurisdiction, to promptly transmit full disclosure of that information to the appropriate local law enforcement agency. (Id. ¶ 18.) Plaintiffs contend that had Agent Andersen disclosed the information received from Copley to the Pima County Sheriff's Office (PCSO) - the local law enforcement agency in the Arivaca area - the PCSO would have prevented the home invasion. (Id. ¶ 22.) Plaintiffs state in support that a few days prior to the home invasion, Forde and an unidentified male companion approached PCSO Deputy H.O. Anderson, Jr., who was on patrol in Arivaca. During the encounter Forde identified herself to DeputyAnderson and explained that she was in the Arivaca area with others doing Minutemen type work. (Id. ¶ 23.) Plaintiffs claim that if Deputy Anderson had been notified of Forde's plan to commit a home invasion, he could have prevented that crime by arresting Forde and her male companion for conspiracy to promote or aide the commission of an offense in violation of A.R.S. § 13-1003(A). (Id. ¶ ¶ 24, 25.)
On July 23, 2012, the United States filed its Motion to Dismiss for Lack of Subject Matter Jurisdiction and For Failure to State a Claim. (Doc. 5.) The Motion asserts three separate grounds for dismissal: (1) Plaintiffs' Complaint fails to satisfy the pleading requirements of Rule 8, Fed. R. Civ. P., (2) the Complaint fails to state a claim because Defendant owed no duty to Plaintiffs under Arizona law, and (3) the Court lacks subject matter jurisdiction because the discretionary function exception to the Federal Tort Claims Act (FTCA) bars Plaintiffs' claims. Because this Court finds that it lacks subject matter jurisdiction, it does not address the other bases for dismissal raised by the government in its Motion.
The FTCA authorizes suits against the United States for negligent performance of governmental functions. 28 U.S.C. § 1346(b). The FTCA, however, is subject to certain exceptions that immunize the United States from lawsuits. See Weissich v. United States, 4 F.3d 810, 812 (9th Cir. 1993). One such exception is the discretionary function exception, which bars:
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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 be abused.
28 U.S.C. § 2680(a). "The basis for the discretionary function exception was Congress' desire to 'prevent judicial second guessing of legislative and administrative decisionsgrounded in social, economic, and political policy through the medium of an action in tort.'" Berkovitz v. United States, 486 U.S. 531, 536-37 (1988) (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). In drafting the exception, Congress meant "to protect the Government from liability that would seriously handicap efficient government operations." Vickers v. United States, 228 F.3d 944, 948 (9th Cir. 2000) (quoting United States v. Muniz, 374 U.S. 150, 163 (1963)). The discretionary function exception insulates the government from liability if the action challenged involves the exercise of policy judgment. Id. at 537. "Where the discretionary function exception to the FTCA applies, no federal subject matter exists." Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996).
The court employs a two-step test to decide whether the discretionary function exception precludes the assertion of a particular claim. The court must first determine whether the act or omission was discretionary, i.e., whether it involved an element of judgment or choice for the acting employee (the "discretionary act" prong). Berkovitz, 486 U.S. at 536; Alfrey v. United States, 276 F.3d 557, 561 (9th Cir. 2002). If the act or omission was discretionary, the court must then determine whether that judgment was the type that Congress intended to shield from tort liability ("the policy judgment" prong). Berkovitz, 486 U.S. at 536; Alfrey, 276 F.3d at 561. Both the discretionary act prong and the policy judgment prong must be satisfied before the discretionary function exception will apply. Sabow, 93 F.3d at 1451. The government has the burden of proving that the discretionary function exception applies under all the facts. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). Thus, in order to demonstrate that it is immunized by the discretionary function exception to the FTCA, the government must demonstrate that Agent Andersen's decision not to notify local law enforcement was discretionary and that it was the type of omission that Congress intended to shield from tort liability.
If an act is mandatory, then, by definition, there can be no discretion involved. Thus, where a federal statute, regulation, or policy "specifically prescribes a course of action for an employee to follow," the discretionary function exception does not apply. Berkovitz, 486 U.S. at 536. In such a case, the employee has no option but to adhere to the directive, and therefore, he or she does not act in a discretionary capacity. Id. ...
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