Ochran v. U.S., No. 96-2568

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore COX and BIRCH; BIRCH; COX
Citation117 F.3d 495
Docket NumberNo. 96-2568
Decision Date21 July 1997
Parties11 Fla. L. Weekly Fed. C 186 Michelle OCHRAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Page 495

117 F.3d 495
11 Fla. L. Weekly Fed. C 186
Michelle OCHRAN, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
No. 96-2568.
United States Court of Appeals,
Eleventh Circuit.
July 21, 1997.

Jay F. Meisenberg, Cathy L. Lucrezi, Leoci & Meisenberg, P.A., Ft. Myers, FL, for Plaintiff-Appellant.

Sarah Lenz Lock, Attorney General's Office, Civil Division, Torts Branch, Washington, DC, Mark B. Stern, Alisa B. Klein, U.S. Dept. of Justice, Washington, DC, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before COX and BIRCH, Circuit Judges, and RAFEEDIE *, Senior District Judge.

BIRCH, Circuit Judge:

The issue in this appeal is whether the discretionary function exception to the Federal Tort Claims Act ("FTCA") shields the United States Government from liability for the allegedly negligent failure of an assistant United States attorney ("AUSA") to: (1) provide a victim or witness with protection after her life was threatened by a suspected offender; (2) inform the victim or witness of available remedies against intimidation and harassment; and (3) inform other components of the Justice Department, such as the U.S. Marshals Service, of the threat. The district court held that it lacked subject matter jurisdiction over this case because the allegedly negligent actions (and inaction) of the AUSA involve discretionary decisions. We hold that the AUSA's decisions with respect to providing protection to a victim and informing other components of the Justice Department fall within the discretionary function exception. Because we conclude, however, that the discretionary function exception does not bar a cause of action based on the alleged negligent failure of the AUSA to inform the victim of available remedies against intimidation and harassment, we reverse the district court's dismissal and remand for further proceedings.

I. BACKGROUND

In July 1991, plaintiff Michelle Ochran contacted an agent of "CLEAN" (Combined Law Enforcement Against Narcotics), a non-federal anti-drug task force, and reported that her ex-boyfriend, Frank Restaino, was involved in drug-trafficking activity. The agent encouraged Ochran to remain in contact with Restaino while the task force gathered further evidence for his prosecution. The investigation in which Ochran cooperated eventually led to Restaino's arrest and prosecution on federal drug charges. Assistant U.S. Attorney Susan Daltuva ("AUSA Daltuva" or "Daltuva") was assigned to prosecute Restaino.

On September 19, 1991, the night before Restaino's arraignment, Restaino called Ochran at her father's home (where she lived) and threatened to kill her and her

Page 495

family because she had informed on him. Ochran called the CLEAN agent with whom she had dealt during their investigation of Restaino and reported the threat. The agent advised Ochran that she should contact AUSA Daltuva, who was now in charge of prosecuting Restaino, and gave Ochran Daltuva's telephone number. The next morning, Ochran's father called Daltuva on his daughter's behalf and reported Restaino's threats. Daltuva responded: "I'll take care of it. I'll have somebody get back to you, [don't] worry about it." Paul Ochran's Dep. at 28, Supp. R-exh. B.

After inquiring about Restaino from Drug Enforcement Administration ("DEA") agents that had dealt with him previously, AUSA Daltuva confronted Restaino and his attorney before the rearraignment hearing. Daltuva described herself "in fury," as she "scared them both [and] ... read them the riot act." Daltuva Dep. at 30-31, Supp. R-exh. E. In short, Daltuva told Restaino and his attorney that the threat to Ochran was unacceptable if Restaino was to remain out on bond. Daltuva

Page 499

received Restaino's assurances that it would not happen again. Daltuva then decided not to request that Restaino's bond be revoked and did not mention the threat to Ochran during the rearraignment hearing. Although it is not clear from the record who initiated contact following Restaino's arraignment, the parties agree that Daltuva later reported back to Ochran's father that she had warned Restaino not to repeat the threats and that his bond would be revoked if it happened again.

On October 22, 1991, while Restaino was out on bond, he kidnaped Ochran at knife-point from her mother's driveway, drove her to a remote area, and choked her and stabbed her repeatedly. He then covered her body with bushes and left her for dead. Fortunately, Ochran managed to survive and found help. She was hospitalized for the stab wounds, a punctured lung, and skin abrasions.

After exhausting her administrative remedies, Ochran filed this action for damages under the FTCA, 28 U.S.C. § 1346(b), alleging that the U.S. Attorney's office negligently failed to protect her from Restaino. The Government filed a motion to dismiss or, in the alternative, for summary judgment on the basis that the discretionary function exception, 28 U.S.C. § 2680(a), bars recovery. Ochran argued that the exception does not apply to this case because AUSA Daltuva failed to discharge mandatory duties owed to Ochran under the Attorney General Guidelines for Victim and Witness Assistance (1991) and because a special relationship arose between Ochran and Daltuva. The district court concluded that the discretionary function exception deprived it of subject matter jurisdiction and granted the Government's motion. This appeal followed.

II. DISCUSSION

We review de novo the district court's dismissal of the action for lack of subject matter jurisdiction as well as its interpretation and application of the statutory provisions. Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1060 (11th Cir.1994).

A. The Discretionary Function Exception

The FTCA waives the United States government's sovereign immunity from suit in federal courts for the negligent actions of its employees. See 28 U.S.C. § 1346(b). This broad waiver of immunity, however, is subject to several exceptions. The discretionary function exception, at issue in this case, precludes government liability for "[a]ny claim 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 Supreme Court has enunciated a two-part test for determining whether a government employee's action or omission falls within the discretionary function exception. See Autery v. United States, 992 F.2d 1523, 1526 (11th Cir.1993). First, we consider the nature of the conduct and determine whether it involves "an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 1273, 113 L.Ed.2d 335 (1991) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958, 100 L.Ed.2d 531 (1988)); Powers v. United States, 996 F.2d 1121, 1124 (11th Cir.1993). Government conduct does not involve an element of judgment or choice, and thus is not discretionary, if "a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' because 'the employee has no rightful option but to adhere to the directive.' " Gaubert, 499 U.S. at 322, 111 S.Ct. at 1273 (quoting Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958-59); see also Powers, 996 F.2d at 1124 (giving examples of cases in which the relevant statute or policy was found to prescribe a specific course of action).

Second, if the conduct at issue involves the exercise of judgment, we must determine whether that judgment is grounded in considerations of public policy. Gaubert, 499 U.S. at 322-23, 111 S.Ct. at 1273-74. "[T]he purpose of the exception is to 'prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.' " Id. at 323,

Page 500

111 S.Ct. at 1273 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984)). Therefore, decisions that involve judgment grounded in these considerations fall within the exception. In making this determination, we do not focus on the subjective intent of the government employee or inquire whether the employee actually weighed social, economic, and political policy considerations before acting. Id. at 325, 111 S.Ct. at 1275; Autery, 992 F.2d at 1530-31. We "focus on the nature of the actions taken and on whether they are susceptible to policy analysis." Gaubert, 499 U.S. at 325, 111 S.Ct. at 1275.

B. The Attorney General Guidelines

Ochran contends that the Attorney General Guidelines for Victim and Witness Assistance (1991) [hereinafter "Guidelines"] imposed on AUSA Daltuva a mandatory course of action. The relevant provisions of the Guidelines state:

Consistent with the provisions of 18 U.S.C. [§§ ] 3521-3528, the responsible official shall make the necessary and appropriate arrangements to enable victims and witnesses to receive reasonable protection against threat, harm and intimidation from a suspected offender and persons acting in concert with or at the behest of a suspected offender.

Moreover, information on the prohibition against intimidation and harassment and the remedies therefor shall routinely be made available to victims and witnesses. The responsible official shall, if warranted, advise the component of the Justice Department having the enforcement responsibilities, (e.g. the U.S. Marshals Service), of instances involving intimidation or harassment of any victim or witness.

Id. art. III, § D(2) (emphasis in original). Ochran emphasizes the use of the mandatory "shall" in these provisions--pointing out that "shall" is even italicized for emphasis in one of the provisions of the published Guidelines--and argues that the provisions imposed on Daltuva three...

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105 practice notes
  • Shivers v. United States, No. 17-12493
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 9, 2021
    ...omitted). Thus, "decisions that involve judgment grounded in these considerations fall within the exception." Ochran v. United States , 117 F.3d 495, 500 (11th Cir. 1997). But the exception "applies only to conduct that involves the permissible exercise of policy judgment." Berkovitz v. Uni......
  • Cazales v. Lecon, Inc., Civil Action No. H-96-3659.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • October 2, 1997
    ...prosecutor whether to protect a victim threatened by a suspected offender is susceptible to policy analysis. See Ochran v.. United States, 117 F.3d 495, 501 (11th Cir.1997); see also Hughes, 110 F.3d at 768-69 (government's decision to limit security measures was within discretionary functi......
  • U.S. v. Seher, No. 07-13935.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 26, 2009
    ...upon us to make a waiver argument which the government was willing to forego," we choose not to do so here. Ochran v. United States, 117 F.3d 495, 503 (11th Cir.1997). We now turn to the merits of the Appellants' duplicity argument. "A count in an indictment is duplicitous if it charges two......
  • St. Tammany Parish ex rel. Davis v. Fema, No. 08-30070.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 22, 2009
    ...Cir.2005) (declining to decide whether Gaubert altered its earlier view that the government bears the burden); Ochran v. United States, 117 F.3d 495, 504 n. 4 (11th Cir. 1997) (refusing to decide which party bears the burden, but placing the "burden of production of the policy consideration......
  • Request a trial to view additional results
105 cases
  • Shivers v. United States, No. 17-12493
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 9, 2021
    ...omitted). Thus, "decisions that involve judgment grounded in these considerations fall within the exception." Ochran v. United States , 117 F.3d 495, 500 (11th Cir. 1997). But the exception "applies only to conduct that involves the permissible exercise of policy judgment." Berkovitz v. Uni......
  • Cazales v. Lecon, Inc., Civil Action No. H-96-3659.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • October 2, 1997
    ...prosecutor whether to protect a victim threatened by a suspected offender is susceptible to policy analysis. See Ochran v.. United States, 117 F.3d 495, 501 (11th Cir.1997); see also Hughes, 110 F.3d at 768-69 (government's decision to limit security measures was within discretionary functi......
  • U.S. v. Seher, No. 07-13935.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 26, 2009
    ...upon us to make a waiver argument which the government was willing to forego," we choose not to do so here. Ochran v. United States, 117 F.3d 495, 503 (11th Cir.1997). We now turn to the merits of the Appellants' duplicity argument. "A count in an indictment is duplicitous if it charges two......
  • St. Tammany Parish ex rel. Davis v. Fema, No. 08-30070.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 22, 2009
    ...Cir.2005) (declining to decide whether Gaubert altered its earlier view that the government bears the burden); Ochran v. United States, 117 F.3d 495, 504 n. 4 (11th Cir. 1997) (refusing to decide which party bears the burden, but placing the "burden of production of the policy consideration......
  • Request a trial to view additional results

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