United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided July 15, 2008
No. 06-5275
CHARLES A. SHULER,
APPELLANT
v.
UNITED STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 05cv02207)
Patrick M. Regan was on the briefs for appellant.
Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence
and Darrell C. Valdez, Assistant U.S. Attorneys, were on the
brief for appellee.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
GRIFFITH, Circuit Judge: Charles Shuler was shot in the
back while working for the government as a confidential
informant. He sues the United States for damages alleging
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that it negligently put him in harm’s way and failed to protect
him after promising to do so. The question in this appeal is
whether Shuler’s claim is the kind for which Congress has
waived the government’s sovereign immunity under the
Federal Tort Claims Act (“FTCA”). We conclude that it is not
and affirm the district court’s dismissal of Shuler’s claim
because the alleged government misconduct involved
“discretionary functions” for which the FTCA preserves the
government’s immunity. See 28 U.S.C. § 2680(a).
I.
According to his complaint, in the winter of 1999 Shuler
gave information to the FBI, gleaned from his work as a
confidential informant in the District of Columbia, regarding
the whereabouts of reputed drug-trafficking boss Kevin Gray.
Shuler asked that Gray not be arrested immediately, fearing
that such a move would blow his cover because he alone
knew of Gray’s whereabouts. The FBI nevertheless arrested
Gray immediately after receiving Shuler’s information.
In the days following Gray’s arrest, the FBI ordered
Shuler to continue to investigate the drug activities of Gray’s
group. Worried about his safety, Shuler initially refused, but
after an FBI agent assured him that the FBI would protect
him, he relented and attempted to arrange illegal drug deals
with members of Gray’s group. On December 15, 1999, two
weeks after Gray’s arrest, Shuler’s fears were confirmed. He
was shot in the back, leaving him permanently paralyzed.
Shuler believes that the FBI’s hasty arrest blew his cover and
led Gray to order his murder.
In December 2001, Shuler filed an administrative claim
for damages, which the Department of Justice denied. Shuler
then filed suit in the United States District Court for the
3
District of Columbia asserting jurisdiction under the FTCA.
28 U.S.C. § 1346(b)(1). The government moved to dismiss
the case for lack of subject matter jurisdiction, see FED. R.
CIV. P. 12(b)(1), arguing that Shuler’s claim falls within the
“discretionary function” exception to the FTCA, 28 U.S.C.
§ 2680(a). The district court agreed; it dismissed Shuler’s
claim and subsequently denied his motion to alter or amend
the judgment.
Shuler appeals both the dismissal of his complaint and
the denial of his motion to alter or amend the judgment, and
we have jurisdiction under 28 U.S.C. § 1291. Our review is
limited to the district court’s conclusion that it lacked subject
matter jurisdiction, a legal issue that we review de novo.
Loughlin v. United States, 393 F.3d 155, 162 (D.C. Cir.
2004). Shuler bears the burden of demonstrating subject
matter jurisdiction. Moms Against Mercury v. FDA, 483 F.3d
824, 828 (D.C. Cir. 2007).
II.
“The United States is protected from unconsented suit
under the ancient common law doctrine of sovereign
immunity.” Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983).
However, in 1946, “after nearly thirty years of congressional
consideration,” and in response to “a feeling that the
Government should assume the obligation to pay damages for
the misfeasance of employees in carrying out its work,”
Congress enacted the FTCA. Dalehite v. United States, 346
U.S. 15, 24 (1953). The FTCA waives the government’s
sovereign immunity for suits against the United States
for money damages . . . for injury or loss of property, or
personal injury or death caused by the negligent or
wrongful act or omission of any employee of the
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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 law of the place where the act or
omission occurred.
28 U.S.C. § 1346(b)(1).
This authorization of suit is subject to several exceptions.
Relevant to our case is the so-called discretionary function
exception, which “marks the boundary between Congress’
willingness to impose tort liability upon the United States and
its desire to protect certain governmental activities from
exposure to suit by private individuals.” United States v.
Varig Airlines, 467 U.S. 797, 808 (1984). The United States is
immune from suit for any claim “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).
The Supreme Court has provided a two-part test to
determine “whether the discretionary function exception bars
a suit against the Government.” Berkovitz v. United States,
486 U.S. 531, 536 (1988). First, we ask whether a “federal
statute, regulation, or policy specifically prescribes a course
of action for an employee to follow.” Id. If so, “the employee
has no rightful option but to adhere to the directive,” id., and
“[f]ailure to abide by such [a] directive[] opens the United
States to suit under the FTCA,” Loughlin, 393 F.3d at 163.
After all, if there is no element of judgment or choice
involved in the employee’s conduct, there is “no discretion
. . . for the discretionary function exception to protect.”
Berkovitz, 486 U.S. at 536. Second, because the Supreme
Court has stated that the discretionary function exception
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“protects only government actions and decisions based on
considerations of public policy,” id. at 537, even if the
challenged conduct does involve an element of discretion we
must also look to whether “the action challenged in the case
involves the permissible exercise of policy judgment,” id.; see
also Varig Airlines, 467 U.S. at 814 (explaining that Congress
enacted the discretionary function exception to “prevent
judicial ‘second-guessing’ of legislative and administrative
decisions grounded in social, economic, and political policy
through the medium of an action in tort”).
III.
Shuler seeks to bring a negligence claim for damages
against the United States. He alleges that the government
owed him a duty of care to conceal his identity as an
informant and to protect him; that it breached this duty by
arresting Gray at a time that blew his cover and by failing to
protect him from the harm that followed; and that these
actions were the proximate cause of an injury for which he is
due substantial damages. Under the FTCA, the district court
has subject matter jurisdiction to consider the merits of
Shuler’s claim only if his complaint sets forth facts sufficient
to demonstrate either that the government employee whose
conduct caused him harm violated a specifically prescribed
policy, or that the employee’s harmful conduct was not within
the sphere of discretion lawfully given him to exercise
judgment about how best to achieve legitimate policy
objectives. See Ignatiev v. United States, 238 F.3d 464, 466–
67 (D.C. Cir. 2001). Shuler’s complaint fails to meet this
standard.
Shuler does not identify any “federal statute, regulation,
or policy specifically prescrib[ing] a course of action”
regarding the timing of apprehension of criminal suspects.
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Berkovitz, 486 U.S. at 536. Neither does he argue that the
government’s decision to apprehend Gray at the time it did
was anything other than an exercise of its lawful discretion to
decide when best to arrest a dangerous criminal suspect.
Instead, Shuler focuses on the government’s failure to protect
him, and for good reason. We think it plain that the
government’s decision to arrest Gray at the time it did falls
within the discretionary function exception. Decisions
regarding the timing of arrests are the kind of discretionary
government decisions, rife with considerations of public
policy, that Congress did not want the judiciary “ ‘second-
guessing.’ ” Varig Airlines, 467 U.S. at 814; see Gray, 712
F.2d at 514 (“The federal government’s decisions concerning
enforcement of its criminal statutes comprise a part of its
pursuit of national policy.”) (internal quotation marks
omitted).
With regard to the government’s alleged failure to protect
him after taking actions that disclosed his identity, Shuler
again fails to point to any specifically prescribed government
policy and fails to show that the decision whether and how to
protect a confidential informant is outside the sound
discretion of government officials. Shuler may have an
argument that the United States owed him a duty of care as a
confidential informant, see McIntyre v. United States, 367
F.3d 38, 54 (1st Cir. 2004); Bowers v. DeVito, 686 F.2d 616,
618 (7th Cir. 1982); Leonhard v. United States, 633 F.2d 599,
614 (2d Cir. 1980), but we may consider that argument only if
the FTCA grants the district court jurisdiction over his claim,
and Shuler has failed to show us that it does. As other circuits
have recognized, the government has discretion to provide
informants protection in the way it sees fit, taking into
account the relevant public policies at stake within the
particular circumstances of the case. See Ochran v. United
States, 117 F.3d 495, 501 (11th Cir. 1997) (holding that an
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Assistant U.S. Attorney’s decision as to how to protect an
informant that had been threatened by a suspected offender
involved considerations of public policy because the attorney
“would be expected to balance the victim’s need for
protection . . . , the allocation of limited government
resources, and the government’s dealings with the suspected
offender, such as a plea negotiation or cooperation of the
suspected offender with law enforcement agencies”);
Piechowicz v. United States, 885 F.2d 1207, 1213 (4th Cir.
1989) (holding that the government’s decision not to protect a
witness, even after the witness had received a threat, was
discretionary conduct that “depended on considerations of
public policy”); Bergmann v. United States, 689 F.2d 789,
793 (8th Cir. 1982) (“Whether or not the witness or his family
is in danger is a judgment clearly committed to the discretion
of the Attorney General. . . . Determining whether protection
of the witness is advantageous to the federal interest rather
obviously calls for a policy decision of the discretionary
nature.”).
In other words, the duty of protection that Shuler alleges
the government owed him was a discretionary duty, for which
the discretionary function exception preserves the
government’s immunity from suit. Shuler alleges that the
government abused its discretion in this case by not protecting
him at all. But where, as here, the government conduct
involves discretion and considerations of public policy, the
discretionary function exception immunizes even government
abuses of discretion. 28 U.S.C. § 2680(a) (excepting from
federal court jurisdiction under the FTCA claims based on
government exercise of a discretionary function, “whether or
not the discretion involved be abused”) (emphasis added); see
also United States v. Gaubert, 499 U.S. 315, 325 (1991)
(“The focus of the inquiry is not on the agent’s subjective
intent in exercising the discretion conferred by statute or
8
regulation, but on the nature of the actions taken and on
whether they are susceptible to policy analysis.”).
Shuler’s final argument in support of the district court’s
jurisdiction under the FTCA relies on dicta in a footnote in
the Eleventh Circuit’s opinion in Ochran v. United States, 117
F.3d at 506 n.7. In that case, the court rejected the plaintiff’s
argument that the government’s promise to protect an
informant creates a duty, the breach of which may be
challenged under the FTCA. The court explained that even
after promising to protect an informant, the decision of how to
offer its protection “involves discretion grounded in public
policy considerations” and therefore falls within the
discretionary function exception. Id. at 506. In a footnote,
however, the court opined that had the dealings between the
Assistant U.S. attorney and the informant involved voluntary
assumption by the United States of a “specific duty that
involved no policy judgments,” the result might be different.
Id. at 506 n.7. For example, if the government promised to
“station U.S. Marshals at [the informant’s] door, but then
failed to do so because [it] negligently misplaced the paper
work [sic] and forgot about it,” the negligence might be
actionable under the FTCA. Id.
The district court in our case rejected Shuler’s argument
that his claim fell outside the discretionary function exception
because the government voluntarily undertook to protect him.
The court explained that Shuler’s “generalized allegation of a
promise to provide protection does not fit within the narrow
exception the Ochran court contemplated.” Shuler v. United
States, No. 05-2207, mem. op. at 11 (D.D.C. Aug. 21, 2006);
see also id. at 11–12 (stating that “[a]bsent any claim of an
explicit promise to provide a specific type of protection, the
defendant’s protective services constitute a discretionary
function under the FTCA”). Because Shuler alleged only that
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government agents repeatedly promised to protect him, and
did not allege an explicit promise of a specific type of
protection, we agree with the district court’s conclusion.
Moreover, we, like the district court, reject Shuler’s
contention that he should be allowed to conduct discovery on
the issue of whether government agents made any explicit
promises of protection. The district court dismissed Shuler’s
case not because he failed to proffer adequate evidence, but
because his allegations, even if true, are insufficient to
demonstrate subject matter jurisdiction under the FTCA.
Nonetheless, because our court has not addressed the
issue raised in the Ochran footnote, we think it helpful to
explain the scope of the discretionary function exception in
this context. In light of the purpose of the exception — to
“protect[] against unwarranted judicial intrusion into areas of
governmental operations and policymaking,” Gray, 712 F.2d
at 506 — we note that negligent acts that contradict an
explicit promise to provide a specific type of protection may
be actionable under the FTCA only to the extent that they are
devoid of considerations of public policy. In other words, a
government agent does not abandon his discretion by
promising to protect an informant or witness in a specific
manner. The agent’s promise does not become a specifically
prescribed government policy to which “the employee has no
rightful option but to adhere.” Berkovitz, 486 U.S. at 536.
Rather, the government agent retains the discretion to choose
not to protect the individual or to protect him in a different
manner — even after promising to do so in a specific way —
should policy considerations so dictate, without subjecting the
United States to potential liability under the FTCA. See Red
Lake Band of Chippewa Indians v. United States, 800 F.2d
1187, 1196 (D.C. Cir. 1986) (“The discretionary function
exception shields the government from liability for those
decisions which involve a measure of policy judgment, and
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immunizes as well the execution of such decisions in specific
instances by subordinates, even those at the operational level,
if they must exercise such judgment too.”). Otherwise, the
discretionary function exception would fail to serve its
purpose of keeping the judiciary out of the business of
reviewing policy judgments by government employees. See
Gray, 712 F.2d at 511 (explaining that sovereign immunity
serves to prevent courts “from reviewing or judging the
propriety of the policymaking acts of coordinate branches”
and from subjecting the sovereign to liability “where doing so
would inhibit vigorous decisionmaking by government
policymakers”). We emphasize in this setting what we have
stated before: “[t]he [discretionary function] exception always
insulates a ‘permissible exercise of policy judgment.’ ”
Ignatiev v. United States, 238 F.3d 464, 466 (D.C. Cir. 2001)
(quoting Berkovitz, 486 U.S. at 37).
IV.
By means of the discretionary function exception,
Congress has shielded certain government conduct from suit
and retained a measure of the federal government’s
“exceptional freedom from legal responsibility.” Keifer &
Keifer v. Reconstruction Fin. Corp., 306 U.S. 381, 388
(1939). Some negligent acts may go unrecompensed. It is not
for us to say, however, whether the government was negligent
in this case, as Congress has not placed this matter within the
jurisdiction of the federal courts. The government’s decision
to arrest Gray when it did and its decisions regarding the
protection of Shuler involved considerations of public policy
that we have no power to second-guess. The government’s
actions fall within the discretionary function exception to the
FTCA, 28 U.S.C. § 2680(a), and we therefore affirm the
district court’s grant of the defendant’s motion to dismiss for
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lack of subject matter jurisdiction, as well as its denial of the
plaintiff’s motion to alter or amend the judgment.
So ordered.