Bruce Joiner v. United States

Case: 19-10202 Document: 00515362305 Page: 1 Date Filed: 03/27/2020

REVISED March 27, 2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 10, 2020

No. 19-10202

Lyle W. Cayce

Clerk

BRUCE JOINER,

Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before WIENER, HIGGINSON, and HO, Circuit Judges.

JAMES C. HO, Circuit Judge:

We withdraw the court’s prior opinion of January 10, 2020 and substitute

the following opinion.

The district court dismissed this case for lack of subject matter

jurisdiction under the Federal Tort Claims Act and the Anti-Terrorism Act. It

also precluded additional discovery. We affirm.

I.

On May 3, 2015, Bruce Joiner was on duty as a security guard for the

“First Annual Muhammed Art Exhibit and Contest” in Garland, Texas. That

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day, a pair of Islamic terrorists—Elton Simpson and Nadir Soofi—attacked the

event site and shot Joiner in the leg.

Both Simpson and Soofi were subjects of an ongoing FBI investigation at

the time of the shooting. As early as 2007, Simpson, an Arizona citizen, was

flagged for potential terrorist sympathies. By 2010, Simpson became friendly

with Soofi, a fellow mosque member. Around this time, Soofi attempted to

purchase a handgun from the Lone Wolf Trading Company in Arizona. The

Lone Wolf store was part of the Bureau of Alcohol, Tobacco and Firearms’ “Fast

and Furious” gunwalking operation, where federal agents would sell firearms

to unauthorized buyers in hopes of tracing them back to the Mexican cartel. A

background check identified Soofi as possibly being ineligible to purchase a

firearm, and a seven-day hold was initially placed on the sale. It was lifted

after twenty-four hours, at which point Soofi bought the gun.

On January 7, 2015, terrorists affiliated with al-Qaeda attacked the

Paris offices of Charlie Hebdo in retaliation for the magazine’s publication of

cartoons depicting the prophet Muhammad. Ten days later, an Islamic group

held a conference at the Curtis Culwell Center in Garland, Texas, called “Stand

with the Prophet in Honor and Respect.” The conference featured criticism of

those who published likenesses of Muhammad. In response, another

organization planned a “Draw the Prophet” event, also to be held in Garland.

Simpson denounced the “Draw the Prophet” event in a Twitter exchange

with Mohamed Abdullahi Hassan, an ISIS leader in Somalia. Simpson

tweeted, “When will they ever learn,” and Hassan responded, “The brothers

from the Charlie Hebdo attack did their part. It’s time for brothers in the #US

to do their part.”

At this point, Erick Jamal Hendricks, a South Carolina man, contacted

Simpson via Twitter. Hendricks had been working to establish an ISIS cell in

the United States and was being investigated by and in communication with

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an undercover FBI agent known as UCE-1. UCE-1 initially contacted

Hendricks on social media, posing as a Muslim interested in joining ISIS. After

vetting UCE-1, Hendricks asked for his help recruiting members for a domestic

terror group. UCE-1 contacted Simpson on April 23, 2015, at Hendricks’

instruction. The next day, Simpson and UCE-1 had the following conversation

over social media:

UCE-1: Tear up Texas.

Simpson: Bro, u don’t have to say that . . . U know what happened in

Paris . . . I think . . . Yes or no . . . ?

UCE-1: Right.

Simpson: So that goes without saying . . . No need to be direct.

UCE-1 remained in communication with Hendricks about the upcoming

Garland event. Hendricks explained that he was on the no-fly list and could

not travel to Texas. UCE-1 volunteered to go instead. Hendricks told UCE-1,

“You can link with him [Simpson] brother. That’s your call.”

On May 3, UCE-1 traveled to Garland where the “Draw the Prophet”

event was taking place. UCE-1 drove his own car and Simpson and Soofi

followed in another vehicle. UCE-1 communicated with Hendricks in real time,

informing him that he was in the vicinity and implying he was armed.

Hendricks asked a variety of questions about the security setup at the site. As

the two cars approached a police barricade at the rear entrance to the event,

UCE-1 took a photograph of the area on his cell phone. Two security officers,

including Joiner, were visible in the background.

Simpson’s car pulled up to the barricade. Simpson and Soofi jumped out

and began shooting, hitting Joiner in the leg.

Joiner filed suit against the United States under the Federal Tort Claims

Act (“FTCA”) and the Anti-Terrorism Act (“ATA”), for assault and

international terrorism, respectively. The government moved to dismiss under

Federal Rule of Civil Procedure 12(b)(1), stating that the FTCA claim was

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barred by the discretionary function exception and that there was no waiver of

sovereign immunity on the ATA claim. The district court granted the motion

and concluded that Joiner was not entitled to further discovery.

II.

Sovereign immunity implicates a federal court’s subject matter

jurisdiction and is subject to de novo review. Tsolmon v. United States, 841

F.3d 378, 382 (5th Cir. 2016). In assessing whether there is jurisdiction, courts

may consider: (1) the complaint alone; (2) the complaint supplemented by

undisputed facts evidenced in the record; or (3) the complaint supplemented by

undisputed facts plus the court’s resolution of disputed facts. Id.

Discovery decisions are reviewed for abuse of discretion. Grogan v.

Kumar, 873 F.3d 273, 280 (5th Cir. 2017).

III.

The FTCA provides a limited waiver of sovereign immunity for certain

tortious government conduct. 28 U.S.C. § 1346. However, if the suit implicates

“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”—the so-

called “discretionary function” exception—sovereign immunity is retained. 28

U.S.C. § 2680(a). The discretionary function exception “prevent[s] ‘judicial

second-guessing’ of legislative and administrative decisions grounded in social,

economic, and political policy through the medium of an action in tort.” United

States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467

U.S. 797, 814 (1984). As the district court correctly noted, “[a]t the pleading

stage, the plaintiff has the burden to ‘invoke the court’s jurisdiction by alleging

a claim that is facially outside of the discretionary function exception.’” Gibson

v. United States, 809 F.3d 807, 811 n.1 (5th Cir. 2016) (quoting Freeman v.

United States, 556 F.3d 326, 334 (5th Cir. 2009)). Thus, Joiner carries the

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burden of establishing that the discretionary function exception does not apply

at this stage in the proceedings.

The parties dispute whether exceptions to the FTCA should be construed

in favor of the sovereign or in favor of the plaintiff. The district court “strictly

construe[d] . . . waivers [of sovereign immunity], resolving all ambiguities in

favor of the sovereign.” As a general matter, the district court is certainly

correct. See Lane v. Pena, 518 U.S. 187, 195 (1996) (noting the “established

practice of construing waivers of sovereign immunity narrowly in favor of the

sovereign”). But “unduly generous interpretations of the exceptions [to the

FTCA] run the risk of defeating the central purpose” of the FTCA, making

application of this general rule improper in this context. Dolan v. United States

Postal Serv., 546 U.S. 481, 491–92 (2006) (quoting Kosak v. United States, 465

U.S. 848, 853 n.9 (1984)). Instead, our objective when construing an exception

to the FTCA “is to identify ‘those circumstances which are within the words

and reason of the exception’—no less and no more.” Kosak, 465 U.S. at 853 n.9

(quoting Dalehite v. United States, 346 U.S. 15, 31 (1953)). Therefore, the

district court erred in stating the standard for construing exceptions to the

FTCA; we do not construe exceptions to the FTCA in favor of any particular

party. But as explained below, this error was harmless because Joiner’s

contentions fail either way.

The discretionary function exception has two parts. First, the court must

consider whether the conduct at issue was “discretionary in nature” and

involved an “element of judgment or choice.” United States v. Gaubert, 499

U.S. 315, 322 (1991). If a plaintiff can point to a “specific, nondiscretionary

function or duty” that “prescribe[s] a specific course of action for an agency or

employee,” then there is no discretion. Freeman, 556 F.3d at 338. Second, if

there is discretion, the court must evaluate whether it is “of the kind that the

discretionary function exception was designed to shield.” Gaubert, 499 U.S. at

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322–23 (quoting Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536

(1988)). We conclude that the district court correctly declined jurisdiction

under this two-step framework.

Under the first step of the analysis under Gaubert, we conclude that the

plaintiff has failed to identify a nondiscretionary duty violated by an agency or

employee of the United States. For his part, Joiner contends that UCE-1

violated a specific policy: the Attorney General’s Guidelines on FBI Undercover

Operations’s (“AGG-UCO”) requirement that, when “an undercover employee

learns that persons under investigation intend to commit a violent crime, he

or she shall try to discourage the violence,” and that an “undercover employee

shall be instructed that he or she shall not participate in any act of violence.”

Undercover and Sensitive Operations Unit, Attorney General’s Guidelines on

FBI Undercover Operations § VI.A.2 (1992). Joiner further cites the FBI

Domestic Investigations and Operations Guide (“DIOG”), which states that

“certain types of [otherwise illegal activity] cannot be authorized, such as . . .

participation in an act of violence.” FBI Domestic Investigations and

Operations Guide § 17.1. Specifically, Joiner posits that UCE-1 contributed to

the violence in Garland by sending the “Tear up Texas” message and by

traveling to the event site and communicating with Hendricks about the

security setup there, as well as by failing to discourage the violent acts.

The government responds that the AGG-UCO and DIOG do not govern

the activities of undercover FBI agents engaged in investigations concerning

national security. The government submitted an affidavit from the FBI’s

Acting Assistant Director for the Counterterrorism Division stating that the

operative policy document for counterterror operations is the National Security

Undercover Operations Policy Implementation Guide (“NSUCOPG”). The

affidavit explains that the NSUCOPG, the bulk of which is classified at

“Secret” or above, “functions as a standalone policy, and there is no other FBI

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policy that specifically applies” to national security investigations. It affirms

that the NSUCOPG “does not contain any provision directing the particular

operational manner in which the undercover technique should be carried out.”

It also notes that the types of activities UCE-1 engaged in are routine,

undercover actions.

Even accepting, arguendo, that the AGG-UCO and DIOG control the

FBI’s actions in this case, the government’s actions here do not violate any

stated policy. To begin with, the AGG-UCO directs agents only to “try to

discourage” potential violence. Far from being an explicit command to behave

in a certain manner, the language explicitly affords agents latitude in deciding

the extent of appropriate action. In other words, the directive retains “an

element of judgment or choice”—the basis for the discretionary function

exception. Gaubert, 499 U.S. at 322. See also Gonzalez v. United States, 814

F.3d 1022, 1031–32 (9th Cir. 2016) (holding that a DIOG policy that an

“employee must attempt expeditiously to notify other law enforcement

agencies” of a threat was “replete with discretionary determinations” and “not

the language of ‘a specific statutory or regulatory directive’”) (quoting

Berkovitz, 468 U.S. at 542–43).

Nor has Joiner demonstrated that any of the FBI’s or UCE-1’s actions

rise to the level of “participating” in an act of violence. During oral argument,

Joiner admitted that his strongest case for the government’s involvement in

the eventual injury was UCE-1’s “communication” with Simpson, Soofi, and

Hendricks, providing reconnaissance, and traveling to the site. But such a

broad reading of “participation” that encompasses actions that are only

remotely related to the ultimate injury is inconsistent with sovereign

immunity jurisprudence. We decline to adopt such an expansive interpretation

of the term “participation,” particularly in light of the Supreme Court’s

instruction that we must not construe ambiguities in the FTCA context in any

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particular party’s favor. See Kosak, 465 U.S. at 853 n.9 (quoting Dalehite v.

United States, 346 U.S. 15, 31 (1953)). We thus conclude that, even if we were

to accept Joiner’s proposed framework, the government did not violate any

directives prohibiting agents from engaging in acts of violence.

Turning to the second step of the analysis under Gaubert, we conclude

that the discretion at issue here is precisely the kind that the exception was

designed to shield. An undercover national security operation is a textbook

example of discretionary action that Congress meant to insulate from judicial

second-guessing. See Tsolmon, 841 F.3d at 383 (holding that “[d]ecisions on

when, where, and how to investigate” are “core examples of discretionary

conduct for which the United States maintains its immunity”) (quoting Sutton

v. United States, 819 F.2d 1289, 1294–95 (5th Cir. 1987)); Buchanan v. United

States, 915 F.2d 969, 972 (5th Cir. 1990) (“We do not believe that Congress

meant for judges, through hindsight, to second-guess such difficult decisions”

like when volatility and potential violence are at issue); see also Tiffany v.

United States, 931 F.2d 271, 277 (4th Cir. 1991) (“Of the legion of governmental

endeavors, perhaps the most clearly marked for judicial deference are

provisions for national security and defense.”). The discretionary function

exception thus applies.

Joiner’s remaining arguments are likewise unavailing. For example, he

contends that the Fast and Furious gun sale contravened the FBI’s express

policy prohibiting the sale of firearms to suspected terrorists. The district court

disagreed, detailing instances of the agency’s discretion and ultimately

concluding that the agency did not violate a policy or a statute. On appeal,

Joiner recites the facts relating to the gunwalking operation but does not tie

those facts back to the discretionary function exception. The argument is

inadequately briefed and thus waived. See McIntosh v. Partridge, 540 F.3d

315, 325 n.12 (5th Cir. 2008).

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He also claims that the discretionary function exception is not applicable

in this instance because the “law enforcement proviso” effectively overrides it.

The FTCA does waive sovereign immunity for certain tortious acts stemming

from “acts or omissions of investigative or law enforcement officers of the

United States Government”—presumably like UCE-1. 28 U.S.C. § 2680(h).

But the law enforcement proviso is mentioned only in passing in Joiner’s

complaint, and without any reference or connection to the discretionary

function exception.

And for good reason—the argument is unavailing. This court, along with

the Second, Fourth, Seventh, Ninth, and D.C. Circuits, has held that the law

enforcement proviso does not negate the discretionary function exception. See

Campos v. United States, 888 F.3d 724, 731 (5th Cir. 2018) (“[B]oth the proviso

and the discretionary function exception must be read together. In other

words, one does not moot the other when both cover a fact pattern.”) (internal

citation omitted); see also Linder v. United States, 937 F.3d 1087, 1089 (7th

Cir. 2019); Medina v. United States, 259 F.3d 220, 224–26 (4th Cir. 2001);

Gasho v. United States, 39 F.3d 1420, 1434–35 (9th Cir. 1994); Gray v. Bell,

712 F.2d 490, 507–08 (D.C. Cir. 1983); Caban v. United States, 671 F.2d 1230,

1234 (2d Cir. 1982); but see Nguyen v. United States, 556 F.3d 1244, (11th Cir.

2009). So even if Joiner invoked the law enforcement proviso here, that does

not automatically trump the discretionary function exception—and he has not

demonstrated why it should trump the discretionary function exception here.

In sum, Joiner has not established that the discretionary function

exception does not apply under the FTCA. Accordingly, sovereign immunity

has not been waived.

IV.

Appellant also challenges the district court’s decision not to recognize the

state-created danger doctrine, which theorizes that the government may be

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liable for tortious conduct “if the state actor created or knew of a dangerous

situation and affirmatively placed the plaintiff in that situation.” Doe ex rel.

Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 864 (5th Cir.

2012) (en banc). Joiner asserts that the FBI, and UCE-1’s actions, contributed

to endangering lives and led to his injury. He does not argue that the state-

created danger doctrine provides an independent basis for liability under the

FTCA. Instead, the claim is that the doctrine is a limitation on the

discretionary function exception—namely that the government never has the

discretion to imperil its citizens or commit acts of violence against them.

We have repeatedly declined to recognize the state-created danger

doctrine in this circuit. See, e.g., Cook v. Hopkins, No. 19-10217, 2019

WL5866683, at *5 (5th Cir. Nov. 8, 2019) (per curiam); Estate of C.A. v. Castro,

547 F. App’x. 621, 626 (5th Cir. 2013) (per curiam); Whitley v. Hanna, 726 F.3d

631, 639 n.5 (5th Cir. 2013); Doe, 675 F.3d at 866; Beltran v. City of El Paso,

367 F.3d 299, 307 (5th Cir. 2004). Joiner has been unable to point to a single

case where a plaintiff has used the state-created danger doctrine to overcome

the FTCA’s discretionary function exception. Instead, the doctrine, where

applicable, generally permits a plaintiff to proceed on a claim when sovereign

immunity is already waived, as in suits under 28 U.S.C. § 1983. We thus

decline to forge new circuit precedent and adopt the state-created danger

doctrine in such uncharted territory.

V.

Joiner also appeals the district court’s dismissal of the case for lack of

subject matter jurisdiction under the Anti-Terrorism Act. The ATA states that

“[n]o action shall be maintained” against “the United States, an agency of the

United States, or an officer or employee of the United States” from injury

arising from international terrorism. 18 U.S.C. § 2337. Joiner argues that the

Geneva Convention’s prohibition of a signatory’s “absolv[ing] itself . . . of any

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liability incurred by itself . . . in respect of breaches” functions as customary

international law and waives sovereign immunity. But a waiver of sovereign

immunity “cannot be implied but must be unequivocally expressed.” United

States v. King, 395 U.S. 1, 4 (1969). Congress has explicitly stated that

sovereign immunity shall not be waived for injuries related to terrorist

incidents. The district court properly dismissed the ATA claims for lack of

subject matter jurisdiction.

VI.

Lastly, Joiner challenges the district court’s ruling that discovery was

unlikely to overcome the discretionary function exception. Plaintiffs bear the

burden of demonstrating the necessity of discovery. See Davila v. United

States, 713 F.3d 248, 264 (5th Cir. 2013); Freeman, 556 F.3d at 341–42. A

plaintiff is “not entitled to jurisdictional discovery if the record shows that the

requested discovery is not likely to produce the facts needed to withstand a

Rule 12(b)(1) motion.” Freeman, 556 F.3d at 342. That burden is even greater

when “the party seeking discovery is attempting to disprove the applicability

of an immunity-derived bar to suit because immunity is intended to shield the

defendant from the burdens of defending the suit, including the burdens of

discovery.” Id. Joiner offers only conjecture as to how the government’s

interactions with Simpson and Soofi led to his injury, speculating that the

government may have aided in procuring weapons or provided additional

communications with the terrorists on the day of the shooting. These

recitations are insufficient to establish that further discovery will overcome the

discretionary function exception and defeat sovereign immunity. The district

court did not abuse its discretion by barring additional discovery.

***

For the foregoing reasons, we affirm.

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