Sydnes v. U.S.

• Decision Date: 22 April 2008
• Docket Number: No. 07-1288.,07-1288.
• Citation: 523 F.3d 1179
• Parties: Brian SYDNES and Tom LaBrecque, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

523 F.3d 1179

Brian SYDNES and Tom LaBrecque, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 07-1288.

United States Court of Appeals, Tenth Circuit.

April 22, 2008.

Timothy M. Kratz, Pendleton, Friedberg, Wilson, & Hennessey, P.C., Denver, CO, for Plaintiffs-Appellants.

Paul Farley, Assistant United States Attorney (Troy A. Eid, United States Attorney, with him on the brief), Denver, CO, for Defendant-Appellee.

Before BRISCOE and GORSUCH, Circuit Judges, and PARKER,^* District Judge.

GORSUCH, Circuit Judge.

Titan Corporation fired Brian Sydnes and Tom LaBrecque, civilian contractors employed by Titan to work as video-teleconferencing engineers at, and under the supervision of, the United States Northern Command. Claiming they had been wrongfully terminated in retaliation for reporting security breaches to Northern Command, Mr. Sydnes and Mr. LaBrecque brought a variety of tort claims against the United States and Titan. While Titan eventually settled, the district court granted summary judgment in favor of the United States, holding that the discretionary function exception to the Federal Torts Claims Act left it without authority to hear plaintiffs' claims. Because we agree that employment decisions such as the one at issue here are not matters for which the United States has waived sovereign immunity, we affirm.

I

A

Viewing, as we must, the evidence in the light most favorable to the plaintiffs as the parties responding to a summary judgment motion, the facts before us are these. Titan Corporation had a contract to provide certain technical support services to the United States Northern Command ("NORTHCOM"), and hired Mr. Sydnes and Mr. LaBrecque to participate in the project. The pair were assigned to work at the Joint Communications Support Center ("JSCS") at NORTHCOM. Although employees of Titan, Mr. Sydnes and Mr. LaBrecque worked in a building occupied and operated by NORTHCOM, and received their daily instructions from Air Force personnel at JSCS.

On March 14 and 28, 2004, Mr. Sydnes observed Sergeant Deborah Helle of the United States Air Force provide an operational cryptograph key to John Moody, a civilian who was not authorized to be in possession of such classified material. On the latter occasion, Mr. Sydnes approached Mr. Moody and questioned him about his possession of the key. Mr. Moody conceded that he lacked any training regarding proper handling of the key and indicated that Sgt. Helle had provided it to him. Mr. Moody turned the key over to Mr. Sydnes, who returned it to proper officials.

Troubled by what appeared to him to be a security breach, Mr. Sydnes consulted with Mr. LaBrecque and another support engineer, Steve Hettler. Mr. Sydnes and Mr. LaBrecque then reviewed Air Force regulations and determined the matter should be reported. On March 31, Mr. Sydnes verbally reported his observations to Staff Sergeant Roy James. A day later, April 1, 2004, Mr. Sydnes reported the incident to his superior at Titan, Gary Martinez, and two military officers at NORTHCOM responsible for communications security.

Less than two hours after Mr. Sydnes spoke with Titan and military officials on April 1, Mr. Martinez and Lieutenant Colonel Randy McCanne, the commander of the JSCS, confronted Mr. Sydnes and Mr. LaBrecque. Lt. Col. McCanne was apparently upset that the violation had not been reported to him directly, and angrily told Mr. Sydnes and Mr. LaBrecque that he was "trying to build a team" that their actions were "tearing ... apart." Lt. Col. McCanne also indicated that Sgt. Helle, who shared work space with Mr. Sydnes, "needed a cooling off period" and had requested that Mr. Sydnes remove his belongings from her work area, a request Lt. Col. McCanne instructed Mr. Sydnes to comply with.

For the next week, Mr. Sydnes shared a computer and cubicle space with Mr. LaBrecque, and on April 7 both were fired. Although Titan told them their dismissal was a result of NORTHCOM's decision to reduce funding for their positions, in the weeks and months that followed Titan began recruiting engineers to work on video-teleconferencing issues at NORTHCOM, and indeed filled the same number of positions that existed prior to the dismissal of Mr. Sydnes and Mr. LaBrecque.

B

Mr. Sydnes and Mr. LaBrecque filed suit against Titan and the United States, claiming they were fired in retaliation for reporting the alleged security breaches. They asserted claims against Titan for wrongful discharge in violation of public policy and "extreme and outrageous" conduct,¹ and against the United States for wrongful discharge in violation of public policy, "extreme and outrageous" conduct, and civil conspiracy. Both defendants moved for summary judgment. The district court granted Titan's motion as to the "extreme and outrageous" conduct claim, but denied Titan's motion with respect to the wrongful discharge claim. Titan subsequently settled and is no longer a party to this action. For its part, the United States argued in its motion for summary judgment that sovereign immunity barred plaintiffs' claims. The district court agreed, granted the United States' motion for summary judgment, and entered judgment.

II

Because the sovereign may not be sued without its consent, plaintiffs cannot proceed without establishing that the United States has agreed to answer to their claims in court. United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). As a question of law, we review de novo the district court's determination that such consent is lacking, and do so bearing in mind that the party asserting jurisdiction bears the burden of proving that sovereign immunity has been waived. James v. United States, 970 F.2d 750, 753 (10th Cir.1992).

The FTCA lists many types of claims for which the United States has consented to be sued. Included among these are claims for certain injuries caused by government employees acting within the scope of their employment. 28 U.S.C. § 1346(b). But the FTCA's waiver in this field is subject to (many) exceptions, and what the sovereign giveth it may also take away. Most relevant for our purposes is the discretionary function exception, which reasserts the government's immunity for claims "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).²

In Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), the Supreme Court announced a two-part test for determining whether a challenged action falls within the scope of the discretionary function exception. At the first stage, a court must "consider whether the action is a matter of choice for the acting employee." Id. at 536, 108 S.Ct. 1954. If the action does involve such choice, we must then consider whether the type of action at issue is "susceptible to policy analysis." United States v. Gaubert, 499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). If both of these conditions are met, the discretionary function exception applies and sovereign immunity doctrine precludes suit. If, however, plaintiffs can show that either prong is not met, then the exception does not apply and a claim may proceed.

In order to apply this framework, we must first pause to ask exactly what conduct plaintiffs challenge. Despite the fact that plaintiffs were employed by Titan, plaintiffs assert that military officials retained sufficient control over plaintiffs' day-to-day activities and Titan's hiring decisions that, effectively, the United States either terminated plaintiffs or exercised its influence over Titan to have them terminated. Plaintiffs' complaint therefore identifies the challenged conduct as "unlawfully conspiring to orchestrate plaintiffs' wrongful termination," Compl. ¶ 47, or the "wrongful termination" itself, id. ¶ 54. The United States does not contest that such a claim could conceivably fall within the ambit of Section 1346(b)'s waiver, but argues instead that, under the circumstances of this case, the discretionary function exception applies.³

A

Turning to Berkovitz's first prong, plaintiffs contend that the government's alleged decision to have them terminated was not an action that involved any element of choice. Importantly, plaintiffs do not dispute that employment decisions generally involve a significant degree of discretion by personnel supervisors. Instead, they argue, certain motivations for firing employees are, as a matter of law, categorically impermissible, and thus not a matter of discretion. More specifically, they argue that NORTHCOM's discretion to have them terminated was, in this case, constrained by two sources of law: Colorado common law and government regulations governing the reporting of security breaches.

1. Plaintiffs' common law argument follows this syllogistic path: Colorado common law proscribes the firing of an at-will employee for any reason that violates public policy, and government regulations dealing with the handling of classified information establish a public policy of protecting classified information. Therefore, NORTHCOM's discretion to fire Mr. Sydnes and Mr. LaBrecque in retaliation for reporting the alleged security violation was circumscribed by Colorado common law.⁴

Plaintiffs put the cart before the horse. They would have us assume that the United States fired them in violation of Colorado common law, and on that basis decide that the district court has jurisdiction to hear whether the United States really did fire them in violation of Colorado common law. But we reach the question whether the federal government is liable for breaching some duty of care under state law if (and only if) we can first find an applicable waiver of sovereign immunity by the federal government itself. Domme v. United States, 61 F.3d 787, 789 (...