[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_______________ NOVEMBER 28, 2001
THOMAS K. KAHN
No. 00-16409 CLERK
_______________
D. C. Docket No. 94-00092 CV-FTM-29D
MICHELLE OCHRAN,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Middle District of Florida
______________________________
(November 28, 2001)
Before BIRCH, DUBINA and COX, Circuit Judges.
BIRCH, Circuit Judge:
In this appeal, we evaluate whether the district court had subject matter
jurisdiction to hear Michelle Ochran’s tort claim against the Government, filed
pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. The
district court found sovereign immunity based on the misrepresentation exception
of the FTCA, and granted summary judgment. Ochran appeals. We conclude that
summary judgment for the defendant was appropriate, but for a different reason.
The district court lacked subject matter jurisdiction: Ochran did not allege facts
which support a violation of a state law duty, a prerequisite to liability under the
FTCA. Accordingly, we AFFIRM the district court’s decision.
I. BACKGROUND
In 1991, Ochran served as an informant in the criminal investigation of
Frank Restaino.1 Restaino, suspected of drug trafficking, learned that Ochran was
communicating with the prosecution and threatened to kill her. Ochran’s father
told Susan Daltuva, the Assistant United States Attorney (“AUSA”) prosecuting
the case, that his daughter had been threatened. Daltuva warned Restaino not to
make such threats again, and she took no further action. Daltuva did not explain
1
Our prior opinion details the facts in this case. See Ochran v. United States, 117 F.3d
495, 498-99 (11th Cir. 1997) (“Ochran I”).
2
that Ochran could independently apply for a remedy against intimidation, such as a
restraining order. One month later, Restaino kidnaped Ochran, choked her,
stabbed her repeatedly, and left her for dead.
Ochran survived the attack, and she accuses the AUSA of negligence. In
1997, we adjudicated two of Ochran’s claims, holding that the discretionary
function exception of the FTCA barred liability for the AUSA’s decisions not to
protect Ochran and not to inform the U.S. Marshals of Restaino’s threats. See
Ochran I, 117 F.3d at 501-02; 28 U.S.C. § 2680(a). Our decision in Ochran I left
one claim to be litigated: whether the AUSA was negligent in failing to inform
Ochran of the remedies against intimidation and harassment available to a
victim/witness under the Attorney General Guidelines. Ochran I, 117 F.3d at 502-
04.
On remand, the district court determined that it lacked jurisdiction to hear
Ochran’s remaining claim. The district court’s decision was based on the
misrepresentation exception of the FTCA, which provides that sovereign immunity
bars liability for misrepresentations made by federal employees. 28 U.S.C. §
2680(h). Ochran appeals.
3
II. DISCUSSION
We review de novo the district court’s decision to dismiss for lack of subject
matter jurisdiction. Ochran I, 117 F.3d at 499. The Government argues that the
misrepresentation exception aside, Ochran’s claim must fail because she has
alleged no violation of state law.2
The first step in assessing the Government’s argument is analyzing the
language of the FTCA, which provides that liability should be determined “in
accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b)(1). The Supreme Court has observed that “we have consistently
held that § 1346(b)’s reference to the ‘law of the place’ means law of the State - -
the source of substantive liability under the FTCA.” F.D.I.C. v. Meyer, 510 U.S.
471, 478, 114 S. Ct. 996, 1001 (1994). “Law of the place” does not mean federal
law; the FTCA was not intended as a mechanism for enforcing federal statutory
duties. Howell v. United States, 932 F.2d 915, 917 (11th Cir. 1991). Instead, the
FTCA was designed “to provide redress for ordinary torts recognized by state
law.” Id. Indeed, our court has squarely addressed this issue, holding that unless
the facts support liability under state law, the district court lacks subject matter
2
When Ochran’s case was before this court in 1997, we explicitly stated that she must
allege a violation of state law duty in order to succeed under the FTCA. Ochran I, 117 F.3d at
504 n.6.
4
jurisdiction to decide an FTCA claim. Lawrence v. Dunbar, 919 F.2d 1525, 1528
(11th Cir. 1990) (per curiam).
Ochran’s theory of liability is negligence, so we turn to the law of Florida to
determine whether Daltuva owed a duty of care to Ochran. The Florida Supreme
Court has held that whether a governmental entity owes a duty of care to an
individual depends on the presence of a “special relationship.” Everton v. Willard,
468 So.2d 936, 938 (Fla. 1985). Such a relationship can be established when “the
police accept the responsibility to protect a particular person who has assisted them
in the arrest or prosecution of criminal defendants and the individual is in danger
due to that assistance.” Id.
Everton’s “special relationship” test has been applied to a case in which a
state attorney was accused of negligence in providing protection to a witness. State
v. Powell, 586 So.2d 1180 (Fla. Dist. Ct. App. 1991). In Powell, the state attorney
subpoened Powell to testify against her husband. Powell’s husband threatened to
harm her if she testified, and Powell communicated that threat to the state
attorney’s office. The state attorney took no action. When Powell arrived at the
courthouse, Powell’s husband poured gasoline over her and set her on fire. Powell
sued the state attorney for negligence, arguing that the duty element was satisfied
because a special relationship had been formed through the subpoena and the fact
5
that the state attorney knew of the threats made against her. At trial, the court held
that no special relationship had formed because the state attorney did not undertake
the responsibility of protecting Powell. Id. at 1184.
As in Powell, AUSA Daltuva did not undertake the responsibility to protect
Ochran. This fact is not in dispute; Ochran’s argument is premised on the fact that
Daltuva chose not to offer protection. Since a special relationship forms only when
“a law enforcement officer promises or agrees to take some specific action at the
individual’s request,” Ochran cannot satisfy the duty element of her negligence
claim. Brown v. City of Delray Beach, 652 So.2d 1150, 1153 (Fla. Dist. Ct. App.
1995) (per curiam).3 In the absence of facts which support liability under Florida
law, Ochran’s claim fails for lack of subject matter jurisdiction.4
III. CONCLUSION
Like the district court, we conclude that Ochran’s case against the
Government fails. Although different grounds support our decision, we may
3
Speaking only for myself, this case presents the sad situation where the Government,
acting through the AUSA, failed to accurately apprehend the grave danger posed to a citizen who
elected to do her civic duty (i.e., the right thing). Ironically, because of that failure on the part of
the Government to do the right thing, the victim is left with no remedy. One is reminded of the
cynical (but often accurate) observation of Machiavelli in The Prince: “Only those defences are
good, certain and durable, which depend on yourself alone and your own ability.”
4
Thus disposing of the case, we do not make a determination about the applicability of
the misrepresentation exception of the FTCA.
6
affirm the district court as long as “the judgment entered is correct on any legal
ground regardless of the grounds addressed, adopted or rejected by the district
court.” Bonanni Ship Supply, Inc. v. United States, 959 F.2d 1558, 1561 (11th Cir.
1992). Because Ochran cannot satisfy the duty element of her negligence
claim against Daltuva, we AFFIRM the district court’s grant of summary
judgment for the Government.
7