Sydnes v. United States

FILED
United States Court of Appeals
Tenth Circuit

April 22, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIAN SYDNES and TOM
LaBRECQUE,

Plaintiffs-Appellants,
No. 07-1288
v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 05-cv-00642-REB-MJW)

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

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

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

GORSUCH, Circuit Judge.

*
Honorable James A. Parker, United States District Court Judge for the
District of New Mexico, sitting by designation.
 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

-2-
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

-3-
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

1
In Colorado, a claim for extreme and outrageous conduct is the same as a
claim for intentional infliction of emotional distress. English v. Griffin, 99 P.3d
90, 93 (Colo. Ct. App. 2004).

-4-
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 (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

-5-
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 (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. 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 (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

2
Because we agree that the discretionary function exception applies, we do
not reach the government’s alternative argument that jurisdiction is barred by the
FTCA’s exception for claims involving interference with contract rights.

-6-
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

3
The United States does argue that if the district court had found that
plaintiffs actually were federal employees, rather than employees of Titan over
whom the United States exercised some indicia of control, plaintiffs’ sole
recourse would be through the Civil Service Reform Act. However, on appeal
plaintiffs do not contest the district court’s treatment of their employment status,
and so we have no occasion to address this alternative argument.

-7-
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 (10th Cir. 1995). To overcome the discretionary function exception and thus

have a chance of establishing a waiver of sovereign immunity, plaintiffs must

4
Indeed, in the context of the suit against Titan, the district court found
that the regulations dealing with classified information provided a legally
sufficient basis under Colorado law to support a wrongful discharge in violation
of public policy claim. R. at 258. Of course, as a private entity Titan could not
invoke sovereign immunity to challenge the district court’s jurisdiction.

-8-
show that the federal employee’s discretion was limited by “a federal statute,

regulation, or policy,” Berkovitz, 486 U.S. at 536 (emphasis added); after all,

states can’t waive the federal government’s immunity. Considering state tort law

as a limit on the federal government’s discretion at the jurisdictional stage

impermissibly conflates the merits of plaintiffs’ claims with the question whether

the United States has conferred jurisdiction on the courts to hear those claims in

the first place. Indeed, the only conceivable way plaintiffs might succeed on their

theory is by pointing to a federal policy incorporating state tort law as a limit on

the discretion of federal employees with the meaning of the FTCA. And this

plaintiffs have not done.

2. Plaintiffs’ alternative theory does point to federal regulations and

policies, but is ultimately no more availing. Plaintiffs direct us to various rules

regarding the handling of classified information and security breaches; most

pertinent for our purposes, these regulations prohibit retribution by government

officials against individuals who challenge the decision to classify (or declassify)

information, and emphasize the need to report security breaches promptly. 5 The

problem with plaintiffs’ argument is that they didn’t challenge any classification

decision, and the regulations emphasizing the need to report security breaches do

not purport to preclude retribution by officials who receive such news. Simply

5
Specifically, plaintiffs point us to Air Force Instruction 33-211 and
Department of Defense Directive 5200.1, which implement Executive Order
13292, 68 Fed. Reg. 15315.

-9-
put, even assuming that plaintiffs were fired in retaliation for reporting the

security breaches, their actions are not protected from retribution by the

regulations to which they point.

One can make a reasonable argument that officials should no more be

allowed to engage in retribution against those who report security breaches than

those who challenge classification decisions. But this is a decision for the elected

branches, and we are no more free to write their statutes and regulations for them

than they are free to write our decisions for us. And given the apparent lack of

constraining regulations in federal law identified by plaintiffs, we can only

conclude that staffing decisions related to the hiring and firing of civilian

contractors at JSCS were left to the discretion of NORTHCOM officials. Of

course, there is also the possibility that such a regulation might exist in the

copious directives of the Department of Defense and plaintiffs have, despite their

admirable diligence in pursuing this case, just missed it. But the burden under

our case law to present evidence of a discretion-constraining regulation or policy

resides with the plaintiffs. Aragon v. United States, 146 F.3d 819, 823 (10th Cir.

1998) (“The discretionary function exception poses a jurisdictional prerequisite to

suit, which the plaintiff must ultimately meet as part of his overall burden to

establish subject matter jurisdiction.”) (internal quotations omitted); Daigle v.

Shell Oil Co., 972 F.2d 1527, 1539 (10th Cir. 1992) (holding plaintiffs must cite

specific regulations the government is alleged to have violated). We have

- 10 -
examined the two theories under which they have proceeded, and neither

succeeds. More than that, we cannot say.

B

Even though they fail under Berkovitz’s first prong, plaintiffs may still

overcome the discretionary function exception by demonstrating, pursuant to

Berkovitz’s second prong, that “the nature of the actions taken” does not

“implicate public policy concerns, or [is not] ‘susceptible to policy analysis.’”

Harrell v. United States, 443 F.3d 1231, 1236 (10th Cir. 2006). Plaintiffs argue

that they meet this test because their firings were not the product of any

legitimate public policy concern; they emphasize that the only contemporaneous

reason the government cited for their dismissal was that their positions were

defunded – and this explanation, they contend, was obviously pretextual given the

rapidity with which their positions were refunded and filled.

Plaintiffs’ argument, reasonable though it sounds on the merits,

misapprehends the nature of our sovereign immunity inquiry under Berkovitz.

Consistent with Congress’s instruction that the discretionary function exception

applies even when “the discretion involved be abused,” 28 U.S.C. 2680(a), we

may entertain a claim only when the plaintiff can demonstrate that the

“challenged actions are not the kind of conduct that can be said to be grounded in

the policy of the regulatory regime,” Gaubert, 499 U.S. at 325 (emphasis added).

That is, we do not inquire into the intent of the government supervisor when

- 11 -
making a specific personnel decision, Harrell, 443 F.3d. at 1235, and neither do

we ask “whether policy analysis is the actual reason for the decision in question,”

Duke v. Dept. of Agric., 131 F.3d 1407, 1413 (10th Cir. 1997) (Briscoe, J.,

concurring in part and dissenting in part) (emphasis added). Instead, we operate

at a higher level of generality than plaintiffs argue for, asking categorically

(rather than case specifically) whether the kind of conduct at issue can be based

on policy concerns.

We have previously and unqualifiedly held that “[d]ecisions regarding

employment and termination” – the kind of conduct at issue here – are “precisely

the types of administrative action the discretionary function exception seeks to

shield.” Richman v. Straley, 48 F.3d 1139, 1146-47 (10th Cir. 1995). We see no

way to escape the gravity of this precedent in the disposition of this case.

Whatever may’ve occurred in the specifics of plaintiffs’ situation, employment

and termination decisions are, as a class, the kind of matters requiring

consideration of a wide range of policy factors, including “budgetary constraints,

public perception, economic conditions, individual backgrounds, office diversity,

experience and employer intuition.” Burkhart v. Washington Metro Area Transit

Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997); see also Tonelli v. United States, 60

F.3d 492, 496 (8th Cir. 1995). Choosing how to evaluate these various policy

considerations, determining which to give more weight to, and ultimately

deciding whether a particular individual with a certain skill-set and temperament

- 12 -
will help an agency fulfill its mission all involve sensitive policy judgments, and

an employer or supervisor must decide which blend of skills will best aid the

agency in performing its legally-prescribed duties. Forcing the government, at

the jurisdictional stage, to defend its rationale for its employment decision in

particular cases would, moreover, eviscerate the benefits of sovereign immunity

that Congress has chosen to retain in discretionary function cases, and essentially

enmesh us in a mini-trial about the merits. As we have said in the context of state

sovereign immunity, “immunity entitles a [sovereign] not only to protection from

liability, but also from suit, including the burden of discovery.” Univ. of Texas v.

Vratil, 96 F.3d 1337, 1340 (10th Cir. 1996).

The two cases plaintiffs primarily depend upon in arguing for a contrary

result dictate no such thing. In O’Toole v. United States, 295 F.3d 1029 (9th Cir

2002), and ARA Leisure Servs. v. United States, 831 F.2d 193 (9th Cir 1987), our

sister circuit rejected the government’s argument that the need to allocate scarce

budgetary resources alone was a sufficient policy basis to trigger the discretionary

function exception. These cases, however, did not involve employment decisions,

but rather were cases in which government agencies charged with maintaining in

good condition certain infrastructure on government-owned land had failed to do

so. In both cases, budgetary constraints were the sole policy consideration the

government offered as being relevant to the kind of conduct in question,

maintenance decisions. O’Toole, 295 F.3d at 1036; ARA Leisure Servs., 831 F.2d

- 13 -
at 195. Here, by contrast, the government has argued (in harmony with our

holding in Richman) that employment decisions are of a kind that involve not

only budgetary concerns, but also managerial and human resources

considerations, “including the staff’s capabilities and effectiveness,” Gov’t Br. at

14. That such matters may be considered in making employment decisions

suffices to distinguish such conduct from the “routine maintenance” decisions at

issue in O’Toole and ARA Leisure Services. 6

***

A federal agency’s decision to terminate or request the termination of an

employee involves an element of choice and is the kind of decision that

implicates policy concerns relating to accomplishing the agency’s mission. The

plaintiffs’ suit against the United States, however strong it may be on the merits,

6
Plaintiffs also point us to the Supreme Court’s decision in Indian Towing
Co. v. United States, 350 U.S. 61 (1955), a case in which the Supreme Court held
that the FTCA did not bar jurisdiction in a suit against the Coast Guard for failing
to maintain a lighthouse. However, like many of our sister circuits, we have
recognized post-Gaubert that Indian Towing “is simply not persuasive authority
in the context of the discretionary function exception.” Harrell, 443 F.3d at
1237.

Even so, plaintiffs contend that, at the very least, their claim for “extreme
and outrageous” conduct survives the discretionary function exception because no
public policy could possibly be served by allowing a government employee to
berate and “verbal[ly] abuse” employees in the manner that plaintiffs maintain Lt.
Col. McCanne berated them. Plaintiffs are, however, bound by their pleadings in
this regard. Their complaint identifies the allegedly outrageous conduct as
“unlawfully conspiring to orchestrate plaintiffs’ wrongful termination in violation
of public policy.” Compl. ¶ 47. Plaintiffs thus did not attempt to make out any
tort claims on any basis other than their termination.

- 14 -
is therefore barred by the discretionary function exception to the FTCA, and the

district court’s judgment is

Affirmed.

- 15 -