Shuler v. U.S.

• Decision Date: 15 July 2008
• Docket Number: No. 06-5275.,06-5275.
• Citation: 531 F.3d 930
• Parties: Charles A. SHULER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

531 F.3d 930

Charles A. SHULER, Appellant, v. UNITED STATES of America, Appellee.

No. 06-5275.

United States Court of Appeals, District of Columbia Circuit.

July 15, 2008.

Appeal from the United States District Court for the District of Columbia, (No. 05cv02207).

Patrick M. Regan was on the briefs for appellant.

Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence and Darrell C. Valdez, Assistant U.S. Attorneys, were on the brief for appellee.

Before: GRIFFITH and KAVANAUGH, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

GRIFFITH, Circuit Judge:

Charles Shuler was shot in the back while working for the government as a confidential informant. He sues the United States for damages alleging that it negligently put him in harm's way and failed to protect him after promising to do so. The question in this appeal is whether Shuler's claim is the kind for which Congress has waived the government's sovereign immunity under the Federal Tort Claims Act ("FTCA"). We conclude that it is not and affirm the district court's dismissal of Shuler's claim because the alleged government misconduct involved "discretionary functions" for which the FTCA preserves the government's immunity. See 28 U.S.C. § 2680(a).

I.

According to his complaint, in the winter of 1999 Shuler gave information to the FBI, gleaned from his work as a confidential informant in the District of Columbia, regarding the whereabouts of reputed drug-trafficking boss Kevin Gray. Shuler asked that Gray not be arrested immediately, fearing that such a move would blow his cover because he alone knew of Gray's whereabouts. The FBI nevertheless arrested Gray immediately after receiving Shuler's information.

In the days following Gray's arrest, the FBI ordered Shuler to continue to investigate the drug activities of Gray's group. Worried about his safety, Shuler initially refused, but after an FBI agent assured him that the FBI would protect him, he relented and attempted to arrange illegal drug deals with members of Gray's group. On December 15, 1999, two weeks after Gray's arrest, Shuler's fears were confirmed. He was shot in the back, leaving him permanently paralyzed. Shuler believes that the FBI's hasty arrest blew his cover and led Gray to order his murder.

In December 2001, Shuler filed an administrative claim for damages, which the Department of Justice denied. Shuler then filed suit in the United States District Court for the District of Columbia asserting jurisdiction under the FTCA. 28 U.S.C. § 1346(b)(1). The government moved to dismiss the case for lack of subject matter jurisdiction, see FED. R. CIV. P. 12(b)(1), arguing that Shuler's claim falls within the "discretionary function" exception to the FTCA, 28 U.S.C. § 2680(a). The district court agreed; it dismissed Shuler's claim and subsequently denied his motion to alter or amend the judgment.

Shuler appeals both the dismissal of his complaint and the denial of his motion to alter or amend the judgment, and we have jurisdiction under 28 U.S.C. § 1291. Our review is limited to the district court's conclusion that it lacked subject matter jurisdiction, a legal issue that we review de novo. Loughlin v. United States, 393 F.3d 155, 162 (D.C.Cir.2004). Shuler bears the burden of demonstrating subject matter jurisdiction. Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C.Cir.2007).

II.

"The United States is protected from unconsented suit under the ancient common law doctrine of sovereign immunity." Gray v. Bell, 712 F.2d 490, 506 (D.C.Cir.1983). However, in 1946, "after nearly thirty years of congressional consideration," and in response to "a feeling that the Government should assume the obligation to pay damages for the misfeasance of employees in carrying out its work," Congress enacted the FTCA. Dalehite v. United States, 346 U.S. 15, 24, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The FTCA waives the government's sovereign immunity for suits against the United States

for money damages ... 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)(1).

This authorization of suit is subject to several exceptions. Relevant to our case is the so-called discretionary function exception, which "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. Varig Airlines, 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). The United States is immune from suit for any 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 provided a two-part test to determine "whether the discretionary function exception bars a suit against the Government." Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). First, we ask whether a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Id. If so, "the employee has no rightful option but to adhere to the directive," id., and "[f]ailure to abide by such [a] directive[ ] opens the United States to suit under the FTCA," Loughlin, 393 F.3d at 163. After all, if there is no element of judgment or choice involved in the employee's conduct, there is "no discretion ... for the discretionary function exception to protect." Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. Second, because the Supreme Court has stated that the discretionary function exception "protects only government actions and decisions based on considerations of public policy," id. at 537, 108 S.Ct. 1954, even if the challenged conduct does involve an element of discretion we must also look to whether "the action challenged in the case involves the permissible exercise of policy judgment," id.; see also Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755 (explaining that Congress enacted the discretionary function exception 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").

III.

Shuler seeks to bring a negligence claim for damages against the United States. He alleges that the government owed him a duty of care to conceal his identity as an informant and to protect him; that it breached this duty by arresting Gray at a time that blew his cover and by failing to protect him from the harm that followed; and that these actions were the proximate cause of an injury for which he is due substantial damages. Under the FTCA, the district court has subject matter jurisdiction to consider the merits of Shuler's claim only if his complaint sets forth facts sufficient to demonstrate either that the government employee whose conduct caused him harm violated a specifically prescribed policy, or that the employee's harmful conduct was not within the sphere of discretion lawfully given him to exercise judgment about how best to achieve legitimate policy objectives. See Ignatiev v. United States, 238 F.3d 464, 466-67 (D.C.Cir.2001). Shuler's complaint fails to meet this standard.

Shuler does not identify any "federal statute, regulation, or policy specifically prescrib[ing] a course of action" regarding the timing of apprehension of criminal suspects. Berkovitz, 486 U.S. at 536, 108 S.Ct. 1954. Neither does he argue that the government's decision to apprehend Gray at the time it did was anything other than an exercise of its lawful discretion to decide when best to arrest a dangerous criminal suspect. Instead, Shuler focuses on the government's failure to protect him, and for good reason. We think it plain that the government's decision to arrest Gray at the time it did falls within the discretionary function exception. Decisions regarding the timing of arrests are the kind of discretionary government decisions, rife with considerations of public policy, that Congress did not want the judiciary "`second-guessing.'" Varig Airlines, 467 U.S. at 814, 104 S.Ct. 2755; see Gray, 712 F.2d at 514 ("The federal government's decisions concerning enforcement of its criminal statutes comprise a part of its pursuit of national policy.") (internal quotation marks omitted).

With regard to the government's alleged failure to protect him after taking actions that disclosed his identity, Shuler again fails to point to any specifically prescribed government policy and fails to show that the decision whether and how to protect a confidential informant is outside the sound discretion of government officials. Shuler may have an argument that the United States owed him a duty of care as a confidential informant, see McIntyre v. United States, 367 F.3d 38, 54 (1st Cir. 2004); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982); Leonhard v. United States, 633 F.2d 599, 614 (2d Cir.1980), but we may consider that argument only if the FTCA grants the district court jurisdiction over his claim, and Shuler has failed to show us that it does. As other circuits have recognized, the government has discretion to provide informants protection in the way it sees fit, taking into account the relevant public policies at stake within the particular circumstances of the case. See Ochran v. United States, 117 F.3d 495, 501 (11th Cir.1997) (holding that an Assistant U.S. Attorney's decision as to how to protect an informant that had been threatened by a suspected offender involved considerations of public policy because the attorney ...