Gonzalez Ex Rel. A.F. v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GINA M. GONZALEZ, personally and No. 13-15218
as next best friend of A.F., a minor,
Plaintiff-Appellant, D.C. No.
4:12-cv-00375-
v. JGZ

UNITED STATES OF AMERICA,
Defendant-Appellee. OPINION

Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding

Argued and Submitted
March 12, 2015—San Francisco, California

Filed February 24, 2016

Before: Marsha S. Berzon, Jay S. Bybee,
and John B. Owens, Circuit Judges.

Opinion by Judge Bybee;
Dissent by Judge Berzon
2 GONZALEZ V. UNITED STATES

SUMMARY*

Federal Tort Claims Act

The panel affirmed the district court’s Fed. R. Civ. P.
12(b)(1) dismissal for lack of subject matter jurisdiction over
this Federal Tort Claims Act (“FTCA”) case based upon the
discretionary function exception.

The discretionary function exception of the FTCA
immunizes the federal government from claims “based upon
the exercise or performance or the failure to exercise or
perform a discretionary function or duty” on the part of the
government. 8 U.S.C. § 2680(a).

Plaintiffs alleged that the FBI learned of communications
among members of the Minutemen American Defense, an
activist group that advocated against illegal immigration and
that patrolled the U.S.-Mexico border. Plaintiff’s home was
subsequently invaded and members of her family were
murdered by members of the Minutemen group. Plaintiff
alleged that the FBI negligently failed to disclose the
information about the impending home invasion to local law
enforcement, in contravention of the Attorney General’s
Guidelines for Domestic FBI Operations.

The panel held that under the Attorney General
Guidelines, the FBI’s failure to disclose information to local
law enforcement regarding a home invasion threatened by
private persons against unspecified victims constituted a

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 GONZALEZ V. UNITED STATES 3

“failure to exercise or perform a discretionary function or
duty” pursuant to § 2680(a) of the FTCA, and therefore the
discretionary function barred plaintiff’s suit. The panel also
held that the district court did not abuse its discretion in
denying plaintiff’s request for jurisdictional discovery.

Judge Berzon dissented because she would hold that the
conduct challenged here – the FBI’s failure to disclose
information to local law enforcement agencies – was not
shielded by the discretionary function exception, and she
would allow plaintiff’s claim for compensation to go forward.

COUNSEL

Thomas G. Cotter (argued) and Stanley G. Feldman,
Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson,
Arizona, for Plaintiffs-Appellants.

Steve Frank (argued) and Mark B. Stern, Appellate Staff
Attorneys; Stuart F. Delery, Assistant Attorney General; John
S. Leonardo, United States Attorney; United States
Department of Justice, Civil Division, Washington, D.C., for
Defendant-Appellee.
4 GONZALEZ V. UNITED STATES

OPINION

BYBEE, Circuit Judge:

The discretionary function exception of the Federal Tort
Claims Act (“FTCA”) immunizes the federal government
from claims “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or
duty” on the part of the government. 28 U.S.C. § 2680(a).
We consider whether, under Attorney General guidelines, the
FBI’s failure to disclose information to local law enforcement
regarding a home invasion threatened by private persons
against unspecified victims constitutes a “failure to exercise
or perform a discretionary function or duty” pursuant to
§ 2680(a), barring Gonzalez’s suit. We hold that the FBI’s
decision whether or not to disclose was discretionary, and we
affirm the judgment of the district court dismissing the suit.

I

A. Factual Allegations

Plaintiffs-Appellants Gina Gonzalez and her minor
daughter, A.F. (“Gonzalez”), allege that in April 2009, the
FBI learned of communications among members of the
Minutemen American Defense, an activist group that
advocates against illegal immigration and patrols the U.S.-
Mexico border for illegal crossings.1 That month, Shawna

1
When a defendant brings a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(1) and asserts that the allegations in the plaintiff’s
complaint are insufficient to establish subject matter jurisdiction as a
matter of law, we take the allegations in the plaintiff’s complaint as true.
Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005).
 GONZALEZ V. UNITED STATES 5

Forde called Ronald Wedow, another member of the
Minutemen in Arizona, and told him that she knew someone
in Arivaca, Arizona who would provide her with
“information about illegal immigrants.” Wedow passed this
information along to his friend Robert Copley, who spoke
with Forde several times over the course of that month.
Forde told Copley that the Minutemen planned to conduct an
“operation” in Arivaca, in which they would invade a home
to steal drugs, weapons, and money.

At Forde’s request, Copley set up a meeting in Aurora,
Colorado at a Flying J truck stop to recruit individuals for the
operation. But Copley, unbeknownst to Forde, had contacts
at the FBI. And after setting up the Aurora meeting, Copley
informed his FBI contact, Agent Chris Andersen, of the
meeting. He asked Agent Andersen to send an undercover
FBI agent to the meeting. Andersen declined, but instructed
Copley to attend, gather information, and report back.

The meeting in Aurora took place on May 15, 2009.
Forde, Copley, Wedow, and several others attended. Forde
described her plan to invade a home in Arivaca, which she
believed to be a crossroads for drug and weapons trafficking,
for the purpose of “securing” it and stealing contraband that
she suspected would be inside. She explained that her plan
involved forming two “crews”: the first to “secure” the
residents of the home, and the second to steal the drugs,
weapons, and cash. She then drew a map of the area where
the target home was located.

Following the meeting, Copley reported to Agent
Andersen. He informed Agent Andersen of Forde’s plan to
“secure” the residents of the home, explaining that “securing”
meant “hitting the house like a SWAT team . . . going in
6 GONZALEZ V. UNITED STATES

armed.” Copley told Andersen that he considered the threat
posed by the planned invasion to be “real and imminent.” He
also provided Andersen with the map showing the
approximate area of the attack. Gonzalez alleges that
Andersen provided the map to the Phoenix FBI office but that
the map was lost in Phoenix. She also alleges that the FBI
never alerted local law enforcement in Arivaca—the Pima
County Sheriff’s Department—of any of this information.

Fifteen days after the Aurora meeting, on May 30, 2009,
three masked intruders entered Gonzalez’s home in Arivaca
in the early morning hours. They fatally shot Gonzalez’s
husband, Raul Flores, in view of Gonzalez and their nine-
year-old daughter, B.F. They then wounded Gonzalez,
shooting her in the shoulder and leg. Finally, a gunman
reloaded his weapon and shot B.F. in the face, killing her
instantly. The intruders withdrew from the home. Gonzalez
crawled to the next room, grabbed her husband’s handgun,
and called 911. While she was on the 911 call, a gunman
returned and attempted to shoot Gonzalez again, and
Gonzalez shot him in the leg. The intruder’s injury
eventually led to the identification, arrest, and prosecution of
the three perpetrators. One of them was Shawna Forde.

B. Proceedings

Gonzalez filed a complaint in U.S. District Court for the
District of Arizona on behalf of herself and her surviving
daughter, A.F., who was at her grandmother’s house at the
time of the attack. The complaint alleged that the United
States is liable under the FTCA for damages arising out of the
attack because the FBI negligently failed to disclose the
information about the impending home invasion to local law
enforcement, in contravention of the Attorney General’s
 GONZALEZ V. UNITED STATES 7

Guidelines for Domestic FBI Operations (“Guidelines”).
Section VI(C)(2) of these Guidelines provides that the FBI
“shall promptly transmit” to local law enforcement
information concerning “serious criminal activity not within
the FBI’s investigative jurisdiction,” unless disclosure would
compromise an ongoing investigation, endanger others, or
reveal privileged information. Gonzalez and A.F. sought
damages for the wrongful death of Raul Flores and B.F.
Gonzalez also sought damages for her own personal injuries,
pain, and suffering.

The United States filed a motion to dismiss, arguing,
among other things, that the court lacked subject matter
jurisdiction over this FTCA case because of the discretionary
function exception. The district court granted the motion to
dismiss for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1). The court denied
Gonzalez’s request for jurisdictional discovery as futile.
Gonzalez v. United States, No. CV 12-00375, 2013 WL
308762, at *7–8 (D. Ariz. Jan. 25, 2013). Gonzalez filed a
timely appeal to this court.

II

The FTCA authorizes private suits against the United
States for damages for loss of property, 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
8 GONZALEZ V. UNITED STATES

law of the place where the act or omission
occurred.

28 U.S.C. § 1346(b)(1). The Act operates as a limited waiver
of sovereign immunity from suits for negligent or wrongful
acts of government employees, United States v. Gaubert,
499 U.S. 315, 318 n.4 (1991), which constitute “ordinary
common-law torts,” Dalehite v. United States, 346 U.S. 15,
28 (1953). See 28 U.S.C. § 2674 (the United States is liable
for tort claims “in the same manner and to the same extent as
a private individual under like circumstances”).

There are several exceptions to the FTCA. The exception
relevant for our purposes is the discretionary function
exception, which provides that the government has not
waived 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 [is]
abused.

28 U.S.C. § 2680(a). This 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). The “discretion protected by [§ 2680(a)]
. . . . is the discretion of the executive or the administrator to
act according to one’s judgment of the best course, a concept
of substantial historical ancestry in American law.” Dalehite,
346 U.S. at 34 (internal quotation marks omitted).
 GONZALEZ V. UNITED STATES 9

Accordingly, “[w]here there is room for policy judgment and
decision there is discretion.” Id. at 36. The government bears
the burden of demonstrating that the discretionary function
exception applies. GATX/Airlog Co. v. United States,
286 F.3d 1168, 1174 (9th Cir. 2002). Where the exception
applies, the United States has not waived its sovereign
immunity and we lack subject matter jurisdiction over the
claims. Id. at 1173; see United States v. Sherwood, 312 U.S.
584, 586 (1941); United States v. Park Place Assocs., Ltd.,
563 F.3d 907, 924 (9th Cir. 2009) (explaining that the FTCA
waiver of sovereign immunity is coextensive with the
conferral of jurisdiction (citing 28 U.S.C. § 1346)).

The Supreme Court has prescribed a two-part test for
determining whether the discretionary function exception
applies. Berkovitz v. United States, 486 U.S. 531, 536–37
(1988). First, courts are to ask whether the challenged action
was a discretionary one—“that is, it must involve an element
of judgment or choice.” GATX/Airlog Co., 286 F.3d at 1173
(citing Berkovitz, 486 U.S. at 536). In addition to duties
prescribed by the common law torts “of the place where the
act or omission occurred,” 28 U.S.C. § 1346(b)(1), federal
employees must follow “federal statute[s], regulation[s], or
polic[ies that] specifically prescribe[] a course of action for
an employee to follow,” GATX/Airlog Co., 286 F.3d at 1173.
In such cases, “the employee has no rightful option but to
adhere to the directive,” and the discretionary function
exception does not apply. Id. at 1174. Thus, where conduct
violates a mandatory directive and is not “the product of
judgment or choice,” it is not discretionary. Berkovitz,
486 U.S. at 536. This step is called the “discretionary act”
prong of the discretionary function exception analysis. See
Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996).
10 GONZALEZ V. UNITED STATES

If the conduct involves an element of judgment, the court
then determines “whether that judgment is of the kind that the
discretionary function exception was designed to shield.”
Berkovitz, 486 U.S. at 536. The focus of this second step is
“not on the agent’s subjective intent in exercising the
discretion conferred by statute or regulation,” but rather “on
the nature of the actions taken and on whether they are
susceptible to policy analysis.” Gaubert, 499 U.S. at 325.
“The decision need not actually be grounded in policy
considerations so long as it is, by its nature, susceptible to a
policy analysis.” GATX/Airlog Co., 286 F.3d at 1174
(internal quotation marks omitted). According to the Court,
“if a regulation allows the employee discretion, the very
existence of the regulation creates a strong presumption that
a discretionary act authorized by the regulation involves
consideration of the same policies which led to the
promulgation of the regulations.” Gaubert, 499 U.S. at 324.
Thus, “[w]hen established governmental policy, as expressed
or implied by statute, regulation, or agency guidelines, allows
a Government agent to exercise discretion, it must be
presumed that the agent’s acts are grounded in policy when
exercising that discretion.” Id. We refer to this as the “policy
judgment” prong. See Sabow, 93 F.3d at 1451.

III

We begin with the first prong of the discretionary
function exception analysis, the discretionary act prong. We
first address whether the Guidelines impose upon FBI agents
a mandatory duty to disclose information to local law
enforcement. Because Gonzalez also contends that additional
discovery would have helped her show the mandatory nature
of the Guidelines, we also discuss whether the district court
abused its discretion in denying Gonzalez further discovery.
 GONZALEZ V. UNITED STATES 11

Concluding that the FBI has discretion in its investigative
decisions, we then turn to the policy judgment prong.2

A. Discretionary Act

1. The FBI’s decision whether or not to disclose
information regarding potential threats is
discretionary

We first consider whether the challenged government
action involves discretion. There is no common law analog
in tort law. Thus, we are looking to see if there is some kind
of “federal statute, regulation, or policy [that] specifically
prescribes a course of action for an employee to follow.”
Berkovitz, 486 U.S. at 536.

We know of no statute or regulation—and Gonzalez has
not directed us to any—that prescribes a course of action for
the FBI and its agents to follow in the investigation of crime.
This is not surprising. The investigation and prosecution of
crime has long been a core responsibility of the executive
branch. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163
(1803) (“One of the first duties of government is to afford . . .
protection.”); see also Corfield v. Coryell, 6 F. Cas. 546, 551
(C.C.E.D. Pa. 1823) (No. 3,230) (Washington, J.) (The
fundamental privileges of citizenship include “[p]rotection by
the government”). Outside of the FTCA context, the “Court
has recognized on several occasions over many years that an

2
We review de novo a dismissal for lack of subject matter jurisdiction
under the FTCA. Green v. United States, 630 F.3d 1245, 1248 (9th Cir.
2011). Denials of motions to compel discovery are reviewed for abuse of
discretion. Dichter-Mad Family Partners, LLP v. United States, 709 F.3d
749, 751 (9th Cir. 2013) (per curiam).
12 GONZALEZ V. UNITED STATES

agency’s decision not to prosecute or enforce, whether
through civil or criminal process, is a decision generally
committed to an agency’s absolute discretion.” Heckler v.
Chaney, 470 U.S. 821, 831 (1985). “This recognition . . . is
attributable in no small part to the general unsuitability for
judicial review of agency decisions to refuse enforcement.”
Id.; see Wayte v. United States, 470 U.S. 598, 607 (1985)
(“[T]he decision to prosecute is particularly ill-suited to
judicial review. . . . [T]he Government’s enforcement
priorities, and . . . overall enforcement plan are not readily
susceptible to the kind of analysis the courts are competent to
undertake.”); see also Imbler v. Pachtman, 424 U.S. 409, 431
n.33 (1976) (preparation for indictment involves the
“obtaining, reviewing, and evaluating of evidence,” which
requires “mak[ing] decisions on a wide variety of sensitive
issues”).

Gonzalez has argued, nevertheless, that the Attorney
General has prescribed guidelines for the conduct of
investigations that supply a mandatory duty applicable to the
FBI agents involved here. Section VI(C)(2) of the Attorney
General’s Guidelines for Domestic FBI Operations governs
the FBI’s disclosure of information to local law enforcement.
Under the portion titled “Criminal Matters Outside FBI
Jurisdiction,” the Guidelines state in relevant part:

When credible information is received by an
FBI field office concerning serious criminal
activity not within the FBI’s investigative
jurisdiction, the field office shall promptly
transmit the information or refer the
complainant to a law enforcement agency
having jurisdiction, except where disclosure
would jeopardize an ongoing investigation,
 GONZALEZ V. UNITED STATES 13

endanger the safety of an individual, disclose
the identity of a human source, interfere with
a human source’s cooperation, or reveal
legally privileged information. If full
disclosure is not made for the reasons
indicated, then, whenever feasible, the FBI
field office shall make at least limited
disclosure to a law enforcement agency or
agencies having jurisdiction, and full
disclosure shall be made as soon as the need
for restricting disclosure is no longer present.

Guidelines § VI(C)(2). The district court concluded that in
spite of mandatory-sounding language—“the field office shall
promptly transmit”—the Guidelines “as a whole, . . . as well
as the factors set forth for consideration, clearly refute[] the
conclusion that Guideline § VI(C)(2) mandated disclosure.”
Gonzalez, 2013 WL 308762, at *5. The court observed that
an FBI agent must decide whether the information is credible,
whether the criminal activity is serious, and whether there is
any other reason relating to the FBI’s other operations that
counsels against transmitting the information. Id.

In our view, the district court correctly concluded that the
Guidelines do not prescribe a mandatory course of conduct
with respect to the FBI’s sharing of information with state or
local law enforcement agencies. Law enforcement officers
must regularly make judgment calls with respect to
information sharing. They must consider the source of the
information, its credibility, and the amount of detail in the
information. FBI agents, like detectives and police officers,
must evaluate whether the information requires immediate
action, deferred action, or no action at all. They have to make
myriad judgments about how the potential for future criminal
14 GONZALEZ V. UNITED STATES

activity fits the agency’s mission and enforcement priorities.
Indeed, agents may disagree among themselves about the
significance or credibility of information they receive. None
of the answers to these questions are dictated by the Attorney
General’s Guidelines. The Guidelines provide no criteria for
determining what is “credible information” or what
constitutes “serious criminal activity.” Courts have
consistently held that where, as here, a government agent’s
performance of an obligation requires that agent to make
judgment calls, the discretionary function exception applies.
See, e.g., Conrad v. United States, 447 F.3d 760, 765–66 (9th
Cir. 2006) (holding that where a criminal procedural rule
provided that the government “must take the defendant
without unnecessary delay” before a judge, the “exercise of
judgment” was required in determining “how much delay is
necessary”); Ochran v. United States, 117 F.3d 495, 500–01
(11th Cir. 1997) (holding that Attorney General Guidelines
for witness protection were discretionary; “[e]ven though the
Guidelines require the AUSA to arrange for the reasonable
protection of a victim who is threatened, they did not specify
how this protection is to be provided”); Kelly v. United States,
924 F.2d 355, 358, 360–61 (1st Cir. 1991) (holding that
where a DEA manual provided that any bureau chief
receiving an “allegation or complaint” indicating a possible
leak of confidential DEA information “will [i]mmediately
notify” internal security personnel, bureau chiefs had
“discretion to determine what comprised an ‘allegation’ or
‘complaint’”).

Even if an agent receives information that is credible and
suggests serious criminal activity, an agent may choose not to
disclose information based on his consideration of the
possible effects of disclosure, such as the effect of disclosure
on an informant, other individuals, or an ongoing
 GONZALEZ V. UNITED STATES 15

investigation. An FBI agent must first weigh these various
considerations, each committed to his discretion, before he
“shall promptly transmit the information.” Additionally, “the
presence of a few, isolated provisions cast in mandatory
language does not transform an otherwise suggestive set of
guidelines into binding agency regulations.” Sabow, 93 F.3d
at 1453; cf. Vickers v. United States, 228 F.3d 944, 953 (9th
Cir. 2000) (concluding that a regulation requiring prompt
investigation of an allegation of misuse of Service-issued
firearms is mandatory; “although INS investigators
undoubtedly enjoy discretion in the conduct of an
investigation, this discretion does not extend to the question
of whether to report to superiors or to investigate at all an
allegation of misuse of Service-issued firearms”). Viewed in
context, mandatory-sounding language such as “shall” does
not overcome the discretionary character of the Guidelines.

Gonzalez argues that while the Guidelines permit the FBI
to make partial disclosure of information, the Guidelines do
not permit the FBI to fail to warn entirely. However, nothing
in the Guidelines supports Gonzalez’s interpretation. The
predicate for any action by an agent is a judgment that the
FBI has come into “credible information.” Only if the agent
makes that decision—a decision fraught with judgment based
on context, experience and expertise—does the Guideline
even apply. Only then do the Guidelines state that an officer
“shall promptly transmit the information.” Even then, the
Guidelines provide an exception: “except where disclosure
would” implicate any of the five circumstances listed,
suggesting that in those circumstances, disclosure is not
required. Furthermore, the Guidelines provide that if
disclosure is not made for any of those reasons, then partial
disclosure shall only be made “whenever feasible”—another
judgment call. The dissent argues that “any regulation that
16 GONZALEZ V. UNITED STATES

sets out criteria for action” requires government officials to
determine “whether those criteria are or are not satisfied,”
and that this does not render an otherwise mandatory policy
discretionary. Dissenting Op. at 34. That may be true. But
that argument ignores the specific regulations at issue here.
The FBI’s Guidelines clearly contemplate everything from
full disclosure to partial disclosure to non-disclosure, thus
giving the agents discretion to make a “case-by-case
evaluation” regarding the need to disclose. And, as we said
in Weissich v. United States, 4 F.3d 810, 814 (9th Cir. 1993),
“A ‘case-by-case’ evaluation presumes significant officer
discretion.”3 The district court properly concluded that the
Guidelines do not prescribe a mandatory duty.

3
Cases like Tobar v. United States, 731 F.3d 938 (9th Cir. 2013), in
which officials are required to determine the existence of objective,
independently ascertainable conditions, are inapposite here. As the dissent
observes, the fact that a Coast Guard enforcement manual requiring the
owner of a vessel to be compensated if there are no drugs on board and the
vessel is damaged, see Tobar, 731 F.3d at 946, does not give Coast Guard
officials “discretion” just because it requires the officials to exercise some
judgment in determining whether the conditions of the rule apply. See
Dissenting Op. at 34–35. But the dissent ignores the fact that judgments
regarding compensation to be paid to vessel owners required in Tobar and
judgments regarding what investigative evidence should be passed on to
other offices and local offices in the FBI’s Guidelines are completely
different in kind. The criteria agents must consider in determining
whether to disclose information involve exactly the kind of policy
judgments to which the discretionary function exception applies, as we
discuss in detail in Part III.B. The fact that the “structure”—the logical
form—of the Guidelines here and the Coast Guard’s manual at issue in
Tobar is “identical” does not render the Guidelines here automatically
mandatory. Dissenting Op. at 35.
 GONZALEZ V. UNITED STATES 17

2. The district court did not abuse its discretion in
denying discovery

Gonzalez requested “discovery regarding the policy set
forth in the Attorney General’s Guidelines for Domestic FBI
Operations, § VI(C)(2), including any agency interpretations
of that rule and the custom and practice of how that rule is
obeyed.” The district court denied Gonzalez’s request,
concluding that the text of the Guidelines makes clear that it
permits agency discretion, and thus efforts to obtain evidence
regarding the custom and practice of how that rule is obeyed
would be futile. Gonzalez, 2013 WL 308762, at *8.

On appeal, Gonzalez contends that the district court
abused its discretion when it denied her leave to take
jurisdictional discovery. To show that she was prejudiced by
that denial, Gonzalez seeks to supplement the record with a
document called the FBI Domestic Investigations and
Operations Guide (“DIOG”), which was published in 2011.
The DIOG provides, in relevant part:

[W]hen an employee has information that a
person . . . who is identified or can be
identified through reasonable means is subject
to a credible threat to his/her life or of serious
bodily injury, the employee must attempt
expeditiously to notify other law enforcement
agencies that have investigative jurisdiction
concerning the threat.

DIOG § 14.7.3.2.1.1 (“Threats to Intended Persons”). The
DIOG further provides that “[w]henever time and
circumstances permit, an employee’s decision not to provide
notification to another law enforcement agency in the
18 GONZALEZ V. UNITED STATES

foregoing circumstances must be approved by an ASAC or
higher.” Id. § 14.7.3.2.2. Though the 2011 DIOG was
created and published after the home invasion occurred in
2009, Gonzalez offers some evidence to suggest that the
DIOG “incorporates several older, separate policies” dating
back to 2008. Gonzalez did not raise the relevance of the
DIOG with the district court.

Absent extraordinary circumstances, we generally do not
permit parties to supplement the record on appeal. United
States v. Boulware, 558 F.3d 971, 976 (9th Cir. 2009); Lowry
v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). Gonzalez
has not demonstrated that extraordinary circumstances are
present here.

Even if we were to consider the DIOG, Gonzalez’s
prejudice argument is tenuous. To be sure, like the Attorney
General’s Guidelines, the DIOG employs some mandatory-
sounding language. However, granting Gonzalez the
assumption that the relevant language in this 2011 document
applied at the time of the 2009 home invasion, the DIOG is
replete with discretionary determinations. The threat must be
“credible,” and the threat must be against a “person who is
identified or can be identified through reasonable means.”
Even if these criteria are satisfied, the employee must
“attempt expeditiously” to contact other law enforcement
agencies. This is not the language of “a specific statutory [or]
regulatory directive.” Berkovitz, 486 U.S. at 542–43. And in
this case, there is no allegation that Agent Andersen had any
specific identifying information about any potential victims.
The complaint stated only that Copley gave Agent Andersen
a map showing the “approximate location” of the targeted
home, and gave no indication that this map afforded the FBI
“reasonable means” by which to identify the targeted victims.
 GONZALEZ V. UNITED STATES 19

Thus, even if we were to consider the DIOG, the document
does not show that Gonzalez was prejudiced by the district
court’s denial of discovery. The district court did not abuse
its discretion.

B. Policy Judgment

We turn next to the policy judgment prong of the
discretionary function exception analysis. Under this prong,
we address whether FBI decisions made pursuant to the
Guidelines are susceptible to policy judgment. We then
address whether the “design-implementation” distinction
applies here.

1. The FBI’s decision whether to disclose information is
the type of decision that Congress intended to shield
from FTCA liability

Under the policy judgment prong, we assess whether the
challenged conduct involves the exercise of policy judgment.
In determining if the conduct involves policy judgment, we
do not look to an agent’s subjective weighing of policy
considerations. Rather, we examine the nature of the
Government’s action—or in this case, omission—and decide
whether it is “susceptible” to policy analysis under an
objective assessment. Gaubert, 499 U.S. at 325.

Because we conclude above that the Guidelines permit
discretion, a “strong presumption” arises that the FBI’s
actions were grounded in policy considerations. Id. at 324.
Therefore, we must presume that when the FBI declined to
disclose information regarding the Minutemen threat to local
law enforcement, its actions resulted from a policy judgment.
See, e.g., Alfrey v. United States, 276 F.3d 557, 564 (9th Cir.
20 GONZALEZ V. UNITED STATES

2002) (concluding that because “federal regulations expressly
give prison officials discretion in how to respond to reports of
threats[,] . . . . it must be presumed that the officials’ choices
in responding to the report of [an inmate’s] threat were based
in public policy”).

Even absent that presumption, the FBI conduct challenged
here clearly involves the type of policy judgment protected by
the discretionary function exception. The investigation of
crime involves policy judgments at the core of the executive
branch. In investigations, no less than prosecutions, the
executive must consider the reliability of the information, the
relative importance of the crime, and the agency’s mission
and resources. See Red Lake Bank of Chippewa Indians v.
United States, 800 F.2d 1187, 1193, 1198 (D.C. Cir. 1986)
(holding that where FBI allegedly received “warnings that
something might happen” and “failed to make adequate
plans” to prevent a violent confrontation on Native American
land, the discretionary function exception applied because
“[l]aw enforcement personnel receive warnings, rumors and
threats all the time [and] are constantly required to assess the
reliability of the information they receive, and to allocate
scarce personnel resources accordingly”). As the Guidelines
make evident, any agent choosing whether to disclose
information must weigh the credibility and seriousness of the
threatened criminal activity against the possible risks—to an
informant, if disclosure might reveal his cooperation with the
government; to an intended victim, if disclosure might put
him in greater danger; to other potential victims, if disclosure
might also endanger them; or to ongoing investigations, if
disclosure might jeopardize their success. These
considerations surely implicate social, economic, and
political judgments. See Varig Airlines, 467 U.S. at 814.
Thus, the FBI’s nondisclosure of information is the type of
 GONZALEZ V. UNITED STATES 21

conduct to which a policy analysis could apply. See Weissich
v. United States, 4 F.3d 810, 813 (9th Cir. 1993).

Our conclusion finds support in our decision in Alfrey v.
United States. There, the wife of a prison inmate alleged that
prison officials responded negligently to threats by her
husband’s cellmate, resulting in her husband’s death.
276 F.3d at 563–64. Specifically, she argued that the officers
failed to search the two men’s cell in a manner that would
have enabled them to find the murder weapon and failed to
run an investigatory search on the cellmate using the prison’s
computer database. Id. We concluded that both omissions
implicated social and public policy considerations. Id. at 565.
“A prison official’s judgment about how extensively to search
a cell,” we explained, “involves a balancing of the potential
risk, on the one hand, against the inmate’s interest in being
free from overly intrusive searches, on the other.” Id.
Moreover, “to decide what steps to take in response to a
reported threat, an officer must set priorities among all extant
risks: the risk presented by the reported threat, along with the
other risks that inevitably arise in a prison.” Id. Our
reasoning in Alfrey applies equally to the FBI’s nondisclosure
of information. The FBI’s judgment about how to respond to
a reported threat and how extensively to disclose information
to other law enforcement organizations implicates many
risks, all of which must be weighed in accordance with the
FBI’s social and public policy judgments.

We note that our decision remains the same whether or
not Agent Andersen’s decision in fact involved the subjective
weighing of policy considerations. Gonzalez contends that
the government may be liable for Agent Andersen’s actions
if his failure to disclose the information in his possession was
not actually the result of an exercise of policy-based
22 GONZALEZ V. UNITED STATES

discretion. A lazy or careless failure to disclose, Gonzalez
posits, would not be shielded under the discretionary function
exception. We disagree. To the contrary, the government is
not required to prove either that an affirmative decision was
made, or that any decision actually involved the weighing of
policy considerations, in order to claim immunity. Terbush
v. United States, 516 F.3d 1125, 1136 n.5 (9th Cir. 2008) (“Of
course, after Gaubert we do not need actual evidence that
policy-weighing was undertaken.”); Kennewick Irrigation
Dist. v. United States, 880 F.2d 1018, 1028 (9th Cir. 1989)
(“[W]e [have] expressly rejected [the] argument that the
discretionary function exception cannot apply in the absence
of a conscious decision.” (internal quotation marks omitted)).
In Alfrey, we concluded that the prison officials’ failure to run
a computer database search required weighing policy
considerations—including balancing “the risk presented by
the reported threat, along with the other risks that inevitably
arise in a prison”—without inquiring into whether any prison
official was in fact guided by those considerations. 276 F.3d
at 565.

Here, too, we need not examine whether Andersen did or
did not weigh the Guidelines’ policy considerations. The
discretionary function exception applies so long as the
challenged decision is one to which a policy analysis could
apply.4 Weissich, 4 F.3d at 813. We made clear the

4
Even if the FBI negligently conducted an investigation, that does not
detract from the fact that the manner of conducting an investigation,
including decisions to share or not to share information with other
agencies, is rife with discretion and policy judgment and not appropriate
for judicial review in a tort action. See Gaubert, 499 U.S. at 334;
Kennewick, 880 F.2d at 1029 (“[I]f the presence of negligence were
allowed to defeat the discretionary function exception, the exception
would provide a meager shield indeed against tort liability.”). The statute
 GONZALEZ V. UNITED STATES 23

fundamental problem with adopting Gonzalez’s proposed
approach in In re Consolidated U.S. Atmospheric Testing
Litigation, where we considered whether the discretionary
function exception shielded the government’s alleged failure
to warn nearby military and civilian persons of the health
dangers of its nuclear testing activities:

If the decision to issue or not to issue a
“warning” is within the discretionary function
exception, then logically the failure to
consider whether to issue one necessarily falls
within the exception as well. Any other
interpretation of the statute would create
insurmountable problems in its
administration: What would constitute a
“decision”? Would a decision to defer
decision be a “decision”?

820 F.2d 982, 998–99 (9th Cir. 1987). Gaubert and our case
law require us to conclude that nondisclosure resulted from
a policy judgment, whether or not the judgment was
negligently made or not made at all.5

makes clear that where there is discretion, the government has not waived
its sovereign immunity “whether or not the discretion involved [is]
abused.” 28 U.S.C. § 2680(a).
5
The dissent cites Miller v. United States, 163 F.3d 591 (9th Cir. 1998),
for the proposition that the government must show that one of the five
“exceptions” to disclosure actually applied here. Dissenting Op. at 38–40.
In Miller, we determined that Forest Service guidelines about how to fight
fires gave the Forest Service discretion to depart from the guidelines in a
“multiple fire situation,” a situation that was clearly present during the
events giving rise to the suit. Id. at 594–95. Accordingly, the dissent
reasons that the government must demonstrate here that a situation
requiring non-disclosure was present. But Miller does not require this—in
24 GONZALEZ V. UNITED STATES

2. The design-implementation distinction does not apply
to permit suit against the government in this case

Gonzalez argues that the FBI’s failure to disclose
information did not implicate policy concerns under a
doctrine that we have termed the “design-implementation
distinction.” See Whisnant v. United States, 400 F.3d 1177,
1181 n.1 (9th Cir. 2005). We have held that, in some cases,
“the design of a course of governmental action is shielded by
the discretionary function exception, whereas the
implementation of that course of action is not.” Id. at 1181.
So, for example, the government exercises policy judgment
when determining whether and when to construct a
lighthouse, but once it has constructed that lighthouse, it must
“use due care to make certain that the light was kept in good
working order.” Indian Towing Co. v. United States,
350 U.S. 61, 69 (1955). Thus, on occasion, we have required
the government to face liability for “a failure to effectuate
policy choices already made.” Camozzi v. Roland/Miller &
Hope Consulting Grp., 866 F.2d 287, 290 (9th Cir. 1989).
However, as we discuss in greater detail below, we have
cautiously applied this doctrine and we have applied it largely
in cases involving public health and safety, and in
circumstances where a private party would likely be held

fact, Miller agrees that a decision “need not be actually grounded in policy
considerations” for the discretionary function exception to apply. Miller,
163 F.3d at 593. Furthermore, determining whether the “multiple fire
situation” trigger was present did not itself require a policy judgment (i.e.,
there either is more than one fire, or there is not). Here, by contrast,
determining whether the conditions permitting non-disclosure are even
present requires the FBI to make the kinds of policy judgments protected
by the discretionary function exception. The government need not
demonstrate that its decision not to disclose was actually based on a policy
analysis.
 GONZALEZ V. UNITED STATES 25

liable for the same conduct or omission. See, e.g., Terbush,
516 F.3d at 1132–33 (maintaining wastewater management
system); Bolt v. United States, 509 F.3d 1028, 1033–34 (9th
Cir. 2007) (removing snow from parking lot); Soldano v.
United States, 453 F.3d 1140, 1148–49 (9th Cir. 2006)
(setting safe speed limit on road); Whisnant, 400 F.3d at
1182–83 (removing mold from meat commissary); Marlys
Bear Medicine v. United States, 241 F.3d 1208, 1215 (9th
Cir. 2001) (monitoring safety at logging operation); Camozzi,
866 F.2d at 290 (inspecting floors for unguarded openings).

Gonzalez offers two theories for why we should employ
this doctrine here. First, she argues that while the Attorney
General’s original design and promulgation of the Guidelines
are protected policy judgments, decisions implementing the
Guidelines are mere unprotected “professional judgments.”
Second, she suggests that the government may also be liable
under the design-implementation theory if Agent Andersen
had, in fact, decided to disclose the information he had to
local law enforcement, but the FBI negligently failed to
implement that decision.6

6
Gonzalez never alleged that Agent Andersen actually made a decision
to alert local law enforcement. At most, the complaint alleged that Agent
Andersen provided the map to the Phoenix branch of the FBI.
Transmitting the map from one FBI office to another does not indicate that
Andersen intended to alert local law enforcement of the threat.

Gonzalez contends that she should have been permitted discovery to
obtain “those FBI documents that describe what actions were taken by FBI
personnel after learning of the home invasion plans discussed at the
recruiting meeting arranged by FBI informant Robert Copley.” As we
discuss below, however, this was not an abuse of discretion because any
negligence that occurred as a result of Agent Andersen’s actions is not
sufficient to bring this case within the discretionary function exception.
See also supra note 3.
26 GONZALEZ V. UNITED STATES

Neither theory is sustainable. For the reasons we have
discussed, FBI agents responsible for following the Attorney
General’s Guidelines are still imbued with an enormous
amount of discretion and judgment in the course of their
investigations. We have made clear that the doctrine does not
permit liability where, as here, “the implementation itself
implicates policy concerns.” Whisnant, 400 F.3d at 1182 n.3.
To conclude otherwise would simply swallow the two-step,
discretionary act and policy judgment analysis the Supreme
Court set forth in Berkovitz. See 486 U.S. at 536.

Gonzalez’s alternate theory—that Agent Andersen
designed a plan that he or others failed to implement
properly—fares no better. Whatever Andersen decided to do,
and whatever his colleagues in Phoenix did in response, those
acts were taken in the course of an exercise in policy
judgment. The fact that one or more agents concocted a plan
does not make that plan an irreversible agency mandate.
Agent Andersen does not bind the United States in tort by
deciding to share or not to share information, even if he (or
someone else) does not follow up on his plan.

Our decision in Weissich v. United States is instructive.
There, we considered whether the discretionary function
exception immunized the United States Probation Service’s
(“USPS”) failure to supervise adequately a probationer who
threatened to kill the district attorney who prosecuted him,
and later successfully carried out his threat. 4 F.3d at 812.
After concluding that regulations governing probation
conditions did not impose a mandatory course of conduct on
probation officers, we concluded that supervisory decisions
require balancing an officer’s “dual obligations to (1) protect
the public, and (2) promote the rehabilitation of the
probationer.” Id. at 814. Plaintiffs there made a similar
 GONZALEZ V. UNITED STATES 27

argument to the one we confront here, contending that USPS
“negligently supervised [the probationer] by failing to carry
out its own plan of supervision and failing to enforce the
terms of [his] probation.” Id. Significantly, we declined the
plaintiff’s invitation to sift through the probation officers’
actions and identify those indicating USPS’s failure to
implement their probation plan. Rather, we acknowledged
that while “[p]erhaps the officers should have decided to
supervise [the probationer] more closely,” and “[p]erhaps . . .
unannounced home visits might have been more appropriate,”
these were “judgment calls.” Id. The United States had no
liability “even if it was negligent in supervising” the
probationer. Id. at 815.

Weissich demonstrates that even if the FBI negligently
failed to carry out its own plan of disclosing information to
local law enforcement, our focus remains on the discretionary
and policy-based nature of the Guidelines’ disclosure
determination. Because the Guidelines are discretionary and
involve policy considerations, we cannot parse out the FBI’s
nondisclosure into “decision” and “implementation” phases.
Nor may we conclude that simply because the Attorney
General employed policy-based considerations in
promulgating the Guidelines, any subsequent decision taken
pursuant to those Guidelines is devoid of policy-based
considerations. Such conclusions would permit the design-
implementation distinction to override the discretionary
function exception analysis in contravention of the Court’s
clear command: we look first to whether a policy permits an
agent discretion, and if it does, then we must presume that an
agent’s act or omissions are grounded in policy, whether or
not we suspect that the discretion involved has been abused.
Gaubert, 499 U.S. at 324; 28 U.S.C. § 2680(a).
28 GONZALEZ V. UNITED STATES

Fundamentally, the decision whether or not to disclose
information under the Guidelines, like the day-to-day
decisions involved in rehabilitating a probationer, requires
considerations of public safety, allocation of scarce resources,
and the likelihood of success. See Weissich, 4 F.3d at 814;
see also Sabow, 93 F.3d at 1453. Because such interests will
often conflict or will not be apparent, balancing the various
political, social, and economic considerations is inherent in
the officer’s judgment. See Weissich, 4 F.3d at 814. Far from
“ordinary occupational or professional judgments,” the FBI’s
decision whether to disclose information “clearly involve[s]
the type of policy judgment protected by the discretionary-
function exception.” Alfrey, 276 F.3d at 566
(“[I]nvestigations by federal officers clearly involve the type
of policy judgment protected by the discretionary-function
exception.”); cf. Soldano, 453 F.3d at 1148 (“Setting a safe
speed limit for the Road as designed . . . is essentially a
matter of scientific and professional judgment.”); Sigman v.
United States, 217 F.3d 785, 795–96 (9th Cir. 2000)
(concluding that the discretionary function exception does not
apply to a “garden-variety medical malpractice” claim against
a military physician, because it involves “a function that is
analogous to functions performed by professionals in the
private sphere every day”). The FBI’s judgment whether to
disclose information under the Guidelines implicates policy
considerations for the reasons described above, and therefore,
the design-implementation distinction does not apply on these
facts.

***

The Guidelines vest discretion and policy judgment in the
FBI. Thus, the district court properly concluded that the
government satisfied both prongs of the discretionary
 GONZALEZ V. UNITED STATES 29

function exception. Moreover, the district judge did not
abuse her discretion in denying Gonzalez’s request for
jurisdictional discovery.

IV

It is tempting to wonder whether a simple warning to
local law enforcement could have prevented the tragic deaths
of Gonzalez’s husband and daughter. But we are not charged
with passing upon the wisdom of the government’s exercise
of discretion, and the law does not permit us to do so,
“whether or not the discretion involved [is] abused.”
28 U.S.C. § 2680(a). Choices such as these—to disclose or
not to disclose—are among the judgment-laden decisions the
discretionary function exception was enacted to shield. We
decline to use the tort laws to monitor the executive’s
exercise of its judgment. The judgment of the district court
is

AFFIRMED.
30 GONZALEZ V. UNITED STATES

BERZON, Circuit Judge, dissenting:

Gina Gonzalez, the plaintiff in this action, alleges that a
Federal Bureau of Investigation (FBI) agent knew of serious
threats to her family.1 The information about the threats was
lost within the agency and so was not disclosed to local law
enforcement, as the FBI’s policy requires. Because no action
was taken to follow up on the threat, Gonzalez’s husband and
nine-year-old daughter were killed and she was injured.

The majority holds that, under the Federal Tort Claims
Act (FTCA), 28 U.S.C. § 2671 et seq., the federal
government cannot be held to answer in tort for this entirely
avoidable tragedy That cannot be.

I

Gonzalez’s central allegation is that despite a mandatory
FBI policy so requiring — “[w]hen credible information is
received by an FBI field office concerning serious criminal
activity not within the FBI’s investigative jurisdiction, the
field office shall promptly transmit the information or refer
the complainant to a law enforcement agency having
jurisdiction,” Attorney General’s Guidelines for Domestic
FBI Operations § VI(C)(2) (“Guidelines”) — there was no
disclosure to local authorities. The information was

1
This case was decided below on a motion to dismiss for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
The district court did not grant jurisdictional discovery, so we take
Gonzalez’s allegations as true. See Sabow v. United States, 93 F.3d 1445,
1449 (9th Cir. 1996); Augustine v. United States, 704 F.2d 1074, 1077 (9th
Cir. 1983).
 GONZALEZ V. UNITED STATES 31

forwarded within the FBI but then, according to Gonzalez,
simply lost.

There are exceptions to the FBI’s disclosure or referral
requirement — “where disclosure would jeopardize an
ongoing investigation, endanger the safety of an individual,
disclose the identity of a human source, interfere with a
human source’s cooperation, or reveal legally privileged
information.” Id. But the complaint does not indicate that
any FBI investigation was implicated by the non-disclosed
information or that any other exception to the mandatory
disclosure policy applied.

The Government has not asserted otherwise. Instead, the
Government’s position is essentially hypothetical — if one of
the exceptions were applicable, then the nondisclosure
decision would be discretionary, and there is no FTCA
jurisdiction over discretionary acts. 28 U.S.C. § 2680(a).

But the loss of information subject to a mandatory
disclosure policy is not an “exercise of policy judgment,”
United States v. Gaubert, 499 U.S. 315, 326 (1991) (quoting
Berkovitz v. United States, 486 U.S. 531, 538 n.3 (1988)).
Nor does the existence of hypothetically applicable
exceptions to a mandatory requirement convert an otherwise
mandatory policy into a discretionary one. I respectfully —
but emphatically — dissent.

II

Gonzalez’s story, recounted in detail in the majority
opinion, is a distressing one by any standard. In summary:
One early morning in 2009, three members of an extremist
“Minutemen” group entered Gonzalez’s house wearing masks
32 GONZALEZ V. UNITED STATES

and carrying guns. They murdered her husband in front of
her. After one of the invaders asked Gonzalez’s nine-year-
old daughter, B.F., whether her sister was home, he shot B.F.
in the face and killed her. The intruders shot Gonzalez as
well, several times, and likely would have killed her had she
not defended herself with her husband’s handgun while
calling for help.

Tragically, these events were preventable. An FBI
informer was involved in planning the attack. He provided an
FBI agent, Chris Andersen, with information about the plan
to “hit[] the house like a SWAT team.” The informant gave
Andersen a map, drawn by the leader of the planned attack,
showing the approximate location of the house, and reported
that he believed the plotters posed a real and imminent threat.

So what happened? Andersen provided the map to the
FBI’s Phoenix office, but the office misplaced the map.
Neither Andersen nor anyone else notified the Pima County
Sheriff’s Department, the local law enforcement agency in
charge of the town in which Gonzalez’s home was located.
Had the Sheriff’s department been notified, it could have
arrested the organizer of the attack, as she was known to the
Sheriff’s Department and could have been charged with
conspiring to carry out the attack before it occurred.

In short, Andersen’s well-substantiated information of an
impending attack never made it to Pima County officials.
Gonzalez’s husband and daughter died preventable deaths.
The majority holds that the United States cannot be held
liable for those deaths, because the FBI had the discretion to
withhold information from local law enforcement that could
have saved two lives.
 GONZALEZ V. UNITED STATES 33

III

“The applicability of the discretionary function exception
is determined by a two-part test.” Miller v. United States,
163 F.3d 591, 593 (9th Cir. 1998). First, we must determine
whether the “challenged conduct . . . is a matter of choice for
the acting employee,” as “the discretionary function
exception will not apply when a federal statute, regulation, or
policy specifically prescribes a course of action for an
employee to follow.” Berkovitz, 486 U.S. at 536. If that test
is satisfied, we must also determine whether “the discretion
involves the type of judgment that the exception is designed
to shield,” Miller, 163 F.3d at 593, namely “legislative and
administrative decisions grounded in social, economic, and
political policy,” Gaubert, 499 U.S. 315, 323 (1991) (quoting
United States v. S.A. Empresa de Viacao Aerea Rio
Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). The
conduct challenged here — the FBI’s failure to disclose
information to local law enforcement agencies — does not
meet either prong of the test and is therefore not shielded by
the discretionary function exception.

A

In the first place, and most important, the FBI does have
a mandatory disclosure policy, and it was applicable to the
information agent Andersen acquired. That policy commands
FBI personnel in no uncertain terms as to what to do with
“credible information . . . concerning serious criminal
activity,” using mandatory language: “[T]he field office shall
promptly transmit the information or refer the complainant to
a law enforcement agency having jurisdiction.” Guidelines
§ VI(C)(2) (emphasis added).
34 GONZALEZ V. UNITED STATES

There are five specific exceptions to this mandatory
directive — where disclosure would “jeopardize an ongoing
investigation, endanger the safety of an individual, disclose
the identity of a human source, interfere with a human
source’s cooperation, or reveal legally privileged
information.” Id. If one of these exceptions applies, the
Guidelines, again using mandatory language, require that
“whenever feasible, the FBI office shall make at least limited
disclosure to a law enforcement agency or agencies having
jurisdiction, and full disclosure shall be made as soon as the
need for restricting disclosure is no longer present.” Id.
(emphasis added). The Guidelines therefore “specifically
prescribe[] a course of action for an employee to follow,” and
“the employee has no rightful option but to adhere to the
directive.” Berkovitz, 486 U.S. at 536. Because that is so,
failing to inform local law enforcement of the kind of serious,
specific threat made here was in no way a discretionary act.

The Guidelines do require that FBI field officers make
certain evaluations— whether information is “credible,”
whether it relates to “serious criminal activity,” and whether
the exceptions do or do not apply. But any regulation that
sets out criteria for action requires that the responsible
government officials determine whether those criteria are or
are not satisfied. An otherwise mandatory policy does not
become discretionary because it applies only in certain
specified circumstances or because it has clearly laid out
exceptions. If it did, then no “federal statute, regulation, or
policy” Berkovitz, 486 U.S. at 536, would survive the
discretionary function exception; every such proscription is
limited to described circumstances, and the responsible
employees have to decide whether those circumstances
obtain.
 GONZALEZ V. UNITED STATES 35

In Tobar v. United States, for instance, we held that a
Coast Guard enforcement manual was mandatory under the
first Berkovitz prong. 731 F.3d 938, 945–47 (9th Cir. 2013).
The enforcement manual stated that “[i]f there are no drugs
on board, and there are damages or losses sustained by the
vessel, in accordance to the U.S. laws and in a manner
complying with international laws, the owner of the vessel
will be compensated, as long as neither the vessel nor the
crew have been involved in illicit actions.” Id. at 946. That
directive is essentially identical in structure to the Guidelines
at issue in this case. It provides that when certain conditions
exist — damages or losses sustained by the vessel — federal
employees “will” — using mandatory language — take a
specific action (compensating the owner) unless (exceptions)
particular circumstances exist (involvement by the vessel or
the crew in illicit actions). A Coast Guard employee would
have to make several evaluations to follow this policy —
(1) whether the compensation requested is “in accordance to
the U.S. laws”; (2) how to provide compensation “in a
manner complying with international laws”; (3) what it means
to be “involved” in illicit actions in the past, and (4) whether
a particular action was “illicit.” The need for such
evaluations, which could be fairly complex, did not convert
the mandatory compensation requirement in the Coast Guard
manual into a discretionary policy. Id. The holding of Tobar,
in other words, is that a policy is not discretionary simply
because it directs an employee “do x, unless y.” Yet, that is
what the majority holds here.

In contrast, the cases in which we have found that policy
manuals do set out discretionary criteria, not mandatory
directives, have pointed to specific indices that the
established policy at issue “d[id] not prescribe courses of
action that must be followed.” Sabow v. United States,
36 GONZALEZ V. UNITED STATES

93 F.3d 1445, 1452 (9th Cir. 1996); see also Weissich v.
United States, 4 F.3d 810, 813–14 (9th Cir. 1993). In Sabow,
for instance, the manual stated that “the circumstances of a
particular case will naturally govern the actions taken to
protect and preserve the physical evidence,” and noted that its
provisions were simply “considered generally valid guides.”
Sabow, 93 F.3d at 1452. In Weissich, the policy specified that
“[a] warning is not required in every case,” and that whether
to issue a warning “depends upon a selective case-by-case
evaluation,” based on a non-exhaustive list of factors.
Weissich, 4 F.3d at 813.

Most recently, in Chadd v. United States, 794 F.3d 1104
(9th Cir. 2015), we found a National Park policy
discretionary in the public safety context where the relevant
manual specified that “[t]he means by which public safety
concerns are to be addressed is left to the discretion of
superintendents and other decision-makers at the park level,”
and that where a certain animal species creates a safety
hazard, it “will be managed — up to and including
eradication — if . . . control is prudent and feasible.” Id. at
1110. These policies, we concluded, “impose[] no particular,
mandatory course of action.” Id.

The majority ignores the determinative distinction in our
case law between policies that direct mandatory actions
absent an applicable exception and those that lay out general
criteria for discretionary actions. It then goes on to cite
Sabow for the proposition that “the presence of a few,
isolated provisions cast in mandatory language does not
transform an otherwise suggestive set of guidelines into
binding agency regulations.” Sabow, 93 F.3d at 1453. But
here, the relevant, mandatory language in the FBI disclosure
provision is central to the directive, not “isolated.” And the
 GONZALEZ V. UNITED STATES 37

majority points to no language at all indicating that these
Guidelines should be considered “suggestive.” Without
anything like the explicit invocation of “discretion” in Chadd
or the “case-by-case evaluation” language in Weissich, the
FBI’s prescribed policy is that serious, substantiated threats
— which these clearly were — are required to be
communicated to local law enforcement absent an applicable
exception. See Chadd, 794 F.3d at 1110; Weissich, 4 F.3d at
813; see also In re Glacier Bay, 71 F.3d 1447, 1452–53 (9th
Cir. 1995).

Moreover, and critically, Vickers v. United States,
228 F.3d 944 (9th Cir. 2000), also cited by the majority, adds
an important consideration applicable here: Reporting
requirements can be mandatory even if they coexist in policy
guidelines alongside discretionary functions, like
investigation. Id. at 953; see also Navarette v. United States,
500 F.3d 914, 917 (9th Cir. 2007). Responding to a similar
claim of discretionary function to the one made here, Vickers
held that “although INS investigators undoubtedly enjoy
discretion in the conduct of an investigation, this discretion
does not extend to the question of whether to report to
superiors or to investigate at all an allegation of misuse of
Service-issued firearms,” where policy guidelines made such
reporting, and some investigation, mandatory. Vickers,
228 F.3d at 953 (emphasis in original).

Here, it is the failure to disclose — that is, report — the
threat that is at issue, not the failure to conduct an adequate
investigation into those threats, that is the crux of Gonzalez’s
suit. Gonzalez’s complaint is only that the FBI did not report
to local law enforcement information already in its
possession, as its mandatory Guidelines required. The
majority’s mantra that this case concerns “investigation and
38 GONZALEZ V. UNITED STATES

prosecution of crime” is thus simply wrong, and its
voluminous citations to the discretionary nature of criminal
investigations and prosecution are similarly beside the point.

In sum: Any mandatory policy will require some degree
of interpretation by those who must apply it. If the
government were deemed to exercise the kind of “discretion”
contemplated by the discretionary function exemption every
time an employee is required to read and apply stipulated
considerations that, if they exist, require that certain steps be
taken, all, or nearly all, otherwise mandatory government
policies would become discretionary.

I would hold that the FBI’s Guidelines here at issue are
mandatory. The FTCA’s discretionary function exception is
therefore not applicable at all to Gonzalez’s claim that the
FBI negligently failed to disclose to local law enforcement
threats that, under the agency’s policies, should have been
conveyed.

B

Even if the exceptions to the FBI’s mandatory disclosure
policy did make decisions under those exceptions
discretionary with respect to the FTCA, the Government still
must prove that those exceptions in some sense were
implicated here. The Government bears the burden of
proving the discretionary function exception applies, Terbush
v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008). It
cannot meet that burden by simply saying — without any
evidence — that the Guidelines’ exceptions might have
applied. Although this Court has held that a decision “need
not be actually grounded in policy considerations” for the
discretionary function exception to apply, Miller, 163 F.3d at
 GONZALEZ V. UNITED STATES 39

593,2 we have never held that the Government need not
affirmatively invoke the discretionary aspects of a hybrid
policy — that is, one that is generally mandatory, but has
limited exceptions.

Miller itself well illustrates that the Government must at
least invoke the discretion-granting exceptions to an
otherwise mandatory policy apply. In Miller, property
owners sued the Forest Service for damages to their property
caused by a forest fire escaping from a National Forest.
163 F.3d at 592. The court noted mandatory language in the
Forest Service’s guidelines about how Forest Service
employees should fight fires, id. at 594, but held that the
discretionary function applied nonetheless. Miller so
concluded in part because the guidelines also noted that in
“multiple fire situation[s],” limited resources meant that
employees should only “attempt” to follow their preplanned
response, which conferred discretion on the Forest Service as
to how best to allocate resources. Id. at 594–95 (emphasis in
original). Miller thus contains a hybrid policy similar to the
Guidelines, as construed by the majority: Mandatory
language required government officials to do x, with an

2
I have previously criticized this statement in Miller as contradicting the
Supreme Court’s holding in Gaubert — viz., that the discretionary
function exception “protects only governmental actions and decisions
based on considerations of public policy.” Chadd v. United States,
794 F.3d 1104, 1114 (9th Cir. 2015) (Berzon, J., concurring) (emphasis
added in Chadd) (quoting Gaubert, 499 U.S. at 323). I continue to believe
that the holding of Miller should be reconsidered en banc, for the reasons
stated in my Chadd concurrence. Because Miller does not, in my view,
apply to a hybrid policy such as the one here, this case does not require us
to consider whether Miller should be revisited, as I suggested in Chadd.
That Miller is of questionable validity does, however, reinforce my
conclusion that it should not be expanded to cover hybrid
mandatory/discretionary policies such as the Guidelines here.
40 GONZALEZ V. UNITED STATES

exception for specified situations, as to which the policy
granted discretion and so triggered the discretionary function
exception.

But in Miller it was clear that the exception was the
applicable provision — there had been multiple forest fires
going on in the same region on the same day. Id. at 592. The
majority’s logic here would amount to a stance that in Miller,
because there might have been another fire on the same day,
in which case the exception would apply, the Government
could invoke the discretionary function exception even if
there was no second fire, and no one thought there was. That
is, the Government could prevail because if it had taken
action based on the belief there were two fires, it would have
had discretion as to what to do.

Such a fantasy-grounded approach would severely
undermine a central purpose of the FTCA, namely, the
compensation of individuals who might otherwise be left
“destitute or grievously harmed” by the improper
implementation of government policy. Rayonier Inc. v.
United States, 352 U.S. 315, 320 (1957). There are a great
many policies that, like the one in Miller, contain exceptions
that, during emergencies or other special circumstances, grant
more discretion to the government employees than they
otherwise enjoy. The Army’s Snow Removal Policy held
mandatory in Bolt v. United States, 509 F.3d 1028 (9th Cir.
2007), contained a provision that it was “subject to change
during emergency situations.” Id. at 1033. The Department
of Health and Human Services’ regulations for laboratories
that handle toxins and dangerous biological agents allow
waivers during “domestic or foreign public health
emergenc[ies].” 42 C.F.R. § 73.5(e). The discretionary
function exception would swallow the FTCA if these
 GONZALEZ V. UNITED STATES 41

provisions — in the absence even of an asserted emergency
— were held to mean that the government is not liable for
negligence in its day-to-day clearing of snow, as in Bolt, or in
the licensing of laboratories, as in Berkovitz.

Here, unlike in Miller, the Government has not made any
showing that the exceptions apply; that any government
employee thought they did; or even that any FBI employee
considered whether they did. Gonzalez maintains that the
information was just lost — an action that does not suggest
that any FBI employee believed the Guidelines applied. The
majority is therefore wrong to apply Miller’s principle to this
case.

Citing Gaubert, the majority argues that because the
Guidelines’ exceptions permit discretion (which, as I have
explained, I am assuming in this section is true, although I do
not think it is), we must presume that the FBI’s actions “were
grounded in policy considerations.” But applying that
presumption here jumps the gun, as it assumes, with no proof
at all, that the Government was acting pursuant to one of the
exceptions, and not pursuant to the generally applicable
mandatory reporting requirement.

Moreover, even if the majority is correct that the FBI is
entitled to a presumption in its favor that it was acting
pursuant to discretion-granting exceptions to a mandatory
rule, that would not end the case. Instead, Gonzalez should
have an opportunity to rebut this presumption, which would
require discovery. Her complaint asserts that the Government
was not acting to such an exception, but instead simply lost
the information. We have previously held that, in a ruling
challenging subject matter jurisdiction under the FTCA, “the
moving party should prevail only if the material jurisdictional
42 GONZALEZ V. UNITED STATES

facts are not in dispute and the moving party is entitled to
prevail as a matter of law.” Augustine, 704 F.2d at 1077; see
also Young v. United States, 769 F.3d 1047, 1052–53 (9th
Cir. 2014). As a result, “the jurisdictional determination
should await a determination of the relevant facts.” Young,
769 F.3d at 1053 (quoting Augustine, 704 F.2d at 1077). The
relevant facts include, at a minimum, whether the FBI
actually invoked the exceptions to the Guidelines in some
way, or whether it just lost the information, as Gonzalez
alleges. Because the FBI is, most likely, the only entity with
this information, the district court should have granted
Gonzalez at least minimal jurisdictional discovery with
regard to these facts.

C

Finally, even if the majority is otherwise correct, I would
still reverse, as the FBI’s decisions under the relevant section
of the Guidelines do not qualify as discretionary acts
“grounded in social, economic, and political policy.” Young,
769 F.3d at 1053 (quoting Berkovitz, 486 U.S. at 537).

Our precedent has long recognized that “matters of
scientific and professional judgment — particularly
judgments concerning safety — are rarely considered to be
susceptible to social, economic, or political policy.”
Whisnant v. United States, 400 F.3d 1177, 1182 (9th Cir.
2005). The majority states that the Guidelines’
considerations governing reporting serious, credible threats
to local law enforcement “implicate social, economic, and
political judgments,” but does not support this conclusion.
Instead, the majority repeatedly treats this case as if it asks us
to review an FBI investigation, concluding that Agent
Andersen’s actions entailed “social, economic, and political”
 GONZALEZ V. UNITED STATES 43

policy judgments, rather than professional ones, because
“[t]he investigation and prosecution of crime involves policy
judgments at the core of the executive branch.”

But, once again, the FBI’s investigation and prosecution
responsibilities have nothing to do with this case. We have
not been asked to determine whether Agent Andersen, or any
other FBI employee, was negligent in the investigation or
prosecution of a crime. The issue before us is whether an FBI
employee negligently failed to disclose information already
in its hands to local law enforcement. The majority’s
concerns regarding deference to FBI enforcement priorities
are just not relevant.

***

The FTCA protects the public by helping to ensure the
Government is attentive to its own policies, and by allowing
compensation for those injured by the Government’s
negligence, where enunciated policies are not followed. In
one sense, it is too late for Gina Gonzalez to benefit from the
attentiveness the Government should have paid to threats
affecting her and her family, as her husband and child are lost
to her. But her claim for compensation should go forward.
I respectfully dissent.