JGE v. United States ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 26, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MINOR JGE, 7 year old minor through
next friend Peter Tasso, Esq.; GABRIELA
GALLEGOS; JOLENE ESTRADA, in her
personal and official capacities as co-
personal representative of the estate of
Jason Julian Estrada; JOYCE ESTRADA,
in her personal capacity,
Plaintiffs - Appellants,
v. No. 18-2092
(D.C. No. 1:14-CV-00710-MV-WPL)
UNITED STATES OF AMERICA, (D. N.M.)
Defendant - Appellee,
and
CHRISTOPHER SCOTT GODIER;
PATRICIA G. WHELAN, a/k/a Patricia
Yazzie, a/k/a Trish Yazzie; JOHN R.
CASTLEBERRY, Special Agent Drug
Enforcement Administration, in his
individual capacity; MATTHEW B.
MAYFIELD, Group Supervisor (GS) Drug
Enforcement Administration, in his
individual capacity; RAYMOND KEITH
BROWN, Assistant Special Agent in
Charge (ASAC) Drug Enforcement
Administration, in his individual capacity;
JOSEPH M. ARABIT, Special Agent in
Charge (SAC) Drug Enforcement
Administration, in his individual capacity,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MORITZ, and EID, Circuit Judges.
_________________________________
Plaintiffs brought this action against the United States under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680, and the individual
defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). The district court dismissed the individual
defendants and granted the United States’ motion for judgment on the pleadings. It
then denied plaintiffs’ Fed. R. Civ. P. 59(e) motion to alter or amend the judgment.
Plaintiffs appeal the denial of their Rule 59(e) motion. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
BACKGROUND
The tragic facts of this case are described in plaintiffs’ first amended
complaint. In 2012 and 2013 Edward Quintana molested JGE and murdered JGE’s
father, Jason Julian Estrada. At the time Mr. Quintana took these actions he was
registered as a confidential informant for the Drug Enforcement Administration
(DEA).
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and judgment
is not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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The events began in 2011, when Mr. Quintana was arrested by state authorities
after a search warrant executed at his home uncovered drugs and stolen handguns.
After his arrest and release from custody the DEA registered him as an active
informant. He remained registered as an informant until April 4, 2013. As part of
Mr. Quintana’s agreement with the DEA the defendants “controlled the evidence and
the status and direction of the State of New Mexico charges” against him. Aplt.
App., Vol. I at 24 ¶ 83 (emphasis omitted). At the time the DEA engaged him as an
informant, Mr. Quintana’s criminal record reflected his violent propensities.1
In August 2012, during the period in which he was acting as an informant,
Mr. Quintana and his family moved into the residence of Jason Estrada and his
family, with the Estrada family’s permission. Plaintiffs allege the DEA was aware or
should have been aware of Mr. Quintana’s residential location and circumstances.
For its part, the Estrada family was unaware that Mr. Quintana was serving as a DEA
informant. Nor did the government warn the family of his violent nature or history.
Within a month, Mr. Quintana began sexually abusing Jason Estrada’s minor
son, JGE, who was then five years old. The abuse continued until February 20, 2013,
when Mr. Quintana and his family moved out of the Estrada residence.
1
Mr. Quintana’s criminal record includes “Domestic Violence, Battery
upon a Household Member, Child Abuse, False Imprisonment, Battery upon a
Household Member with a Firearm, Attempted Murder, Kidnapping, Conspiracy,
Felon in Possession of a Firearm . . . Trafficking a Controlled Substance, Receiving
or Transferring a Stolen Firearm, and threats of Battery and Arson.” Aplt. App., Vol.
I at 33-34 ¶ 146.
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Several weeks later, JGE informed his parents about the molestation. Jason
Estrada sought information from mutual friends and associates of Mr. Quintana about
Mr. Quintana’s abusive behavior toward his son. Mr. Quintana apparently learned of
Mr. Estrada’s inquiries. On April 3, 2013, Mr. Quintana and two other men travelled
to the Estrada residence. In the presence of JGE, they beat and shot Jason Estrada,
who died from his injuries. Approximately one day later, “the United States and the
Defendants deactivated DEA Informant Edward Quintana.” Id. at 33 ¶ 141.
Plaintiffs thereafter brought this action against the United States and the
individual DEA defendants. The district court granted the individual defendants’
motion to dismiss based on qualified immunity. It further determined the FTCA
claims should be dismissed because plaintiffs had failed to identify an analogous duty
under New Mexico law that would require a private person under comparable
circumstances to protect plaintiffs from the harms they experienced from
Mr. Quintana. Among other points, the district court reasoned that “Plaintiffs’
existence and harm were not reasonably foreseeable to the DEA,” id., Vol. II at 483,
and “the DEA could not have reasonably foreseen the terrible tragedy that befell
Plaintiffs, and so could not have imposed any conditions on Quintana’s activities that
would have limited his contact with the Estrada family,” id. at 484.
Plaintiffs filed a motion under Fed. R. Civ. P. 59(e) to alter or amend the
judgment, reasoning that New Mexico imposes a duty to protect others from harm
even in the absence of foreseeability, when the duty arises from a special
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relationship. After obtaining supplemental briefing on that issue, the district court
denied the motion.
DISCUSSION
Plaintiffs’ notice of appeal designates only the district court’s order denying
their Rule 59(e) motion. Aplt. App., Vol. 3 at 633. This court’s appellate
jurisdiction therefore extends only to review of that order. See Fed. R. App. P.
3(c)(1)(B).
In reviewing the district court’s denial of a Rule 59(e) motion, we ordinarily
seek to determine whether the district court abused its discretion, in light of Rule
59(e)’s function “to correct manifest errors of law or to present newly discovered
evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). Under the
circumstances of this appeal, however, we find it unnecessary to conduct that inquiry.
Even if we were to find an abuse of discretion, a remand for further proceedings
would be futile because plaintiffs have failed to satisfy their burden to establish the
existence of subject-matter jurisdiction over this dispute. The parties have fully
briefed this alternative jurisdictional issue both here and in the district court and “we
have an independent obligation to determine whether subject-matter jurisdiction
exists.” Collins v. Daniels, 916 F.3d 1302, 1314 (10th Cir. 2019) (internal quotation
marks omitted).
In district court, the government challenged the district court’s subject-matter
jurisdiction on two grounds: (1) plaintiffs failed to demonstrate analogous tort
liability under New Mexico state law, as required by 28 U.S.C. § 1346(b)(1); and
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(2) plaintiffs’ allegations failed under the “discretionary function exception” to the
FTCA, see id. § 2680(a). Both issues implicate the district court’s subject-matter
jurisdiction because both are conditions on the government’s waiver of its sovereign
immunity. See Garling v. U.S. Envtl. Prot. Agency, 849 F.3d 1289, 1294-95, 1299 &
n.6 (10th Cir. 2017) (discussing jurisdictional nature of discretionary function
exception); Dorking Genetics v. United States, 76 F.3d 1261, 1264 (2d Cir. 1996)
(noting jurisdictional nature of analogous tort liability under § 1346(b)).
The parties fully briefed both issues. Given its dismissal based on analogous
tort liability, the district court declined to consider whether the discretionary function
exception applied. See Aplt. App., Vol. II at 474. The government now reasserts this
alternate jurisdictional issue on appeal. Plaintiffs have responded to the
government’s argument in their reply brief.
The “discretionary function exception poses a jurisdictional prerequisite to
suit, which the plaintiff must ultimately meet as part of his overall burden to establish
subject matter jurisdiction.” Garcia v. U.S. Air Force, 533 F.3d 1170, 1175
(10th Cir. 2008) (internal quotation marks omitted). To determine whether agency
action falls within this FTCA exception, we apply a two-part test. See Garling,
849 F.3d at 1295. “First, we determine whether the conduct was discretionary—
whether it was a matter of judgment or choice for the acting employee.” Id. (internal
quotation marks omitted). In reaching this determination we ask whether “a federal
statute, regulation, or policy specifically prescribes a course of action for an
employee to follow.” Id. (internal quotation marks omitted). If so, “the employee
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has no rightful option but to adhere to the directive,” and the conduct is not
discretionary. Id. (internal quotation marks omitted).
But to avoid dismissal based on the discretionary function exception, the
mandatory duty the government allegedly breached must also bear a causal
relationship to plaintiffs’ injuries. See, e.g., Franklin Sav. Corp. v. United States,
180 F.3d 1124, 1133 (10th Cir. 1999) (stating FTCA complaint did not avoid
discretionary function exception where, assuming directive to prepare case
memoranda weighing alternatives created mandatory duty, complaint failed to
“attribute any harm to the breach of a specific mandate to draft memoranda, as
opposed to a failure to perform the discretionary function of weighing options”); cf.
Berkovitz ex rel. Berkovitz, 486 U.S. 531, 537 (1988) (“[T]he discretionary function
exception insulates the Government from liability if the action challenged in the case
involves the permissible exercise of policy judgment.” (emphasis added)).
“Second, if the conduct was discretionary, we consider whether it required the
exercise of judgment based on considerations of public policy.” Garling, 849 F.3d at
1295 (internal quotation marks omitted). “If both elements are met, the
governmental conduct is protected by a discretionary function, and sovereign
immunity bars a claim that involves such conduct.” Id.
1. Discretionary Nature of the Alleged Conduct
As a general matter, law enforcement decisions surrounding the investigation
and prosecution of crimes, including “whether or not to disclose information
regarding potential threats,” involve the exercise of discretion. Gonzalez v. United
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States, 814 F.3d 1022, 1028 (9th Cir. 2016). In addition, “the decision to use
informants is a discretionary function” in which the government must take into
account that “informants do not come free of criminal history.” Ostera v. United
States, 769 F.2d 716, 718 (11th Cir. 1985) (per curiam). Notwithstanding these
general principles, plaintiffs identify six specific regulations or policies that they
assert created a mandatory duty in their case: (1) a requirement in the DEA’s
guidelines and Attorney General policy to obtain approval from the lead state
prosecutor before establishing an informant; (2) instructions “clearly outlined in DEA
policy” requiring agents to avoid endangering or causing injury to others, Reply Br.
at 3; (3) a requirement in DEA policy to conduct a risk assessment and make a
suitability determination before employing an informant; (4) “DEA policy regarding
informant handling and standards of conduct, the [Attorney General] Guidelines
regarding use of informants, and New Mexico State law,” id. at 4; (5) Attorney
General Guidelines that prohibit agents from using a confidential informant in ways
that would violate court-imposed conditions of supervision; and (6) procedures
requiring on-going progress reports to the state prosecutor concerning an informant’s
cooperation with the DEA.2 Having carefully considered each of these policies, we
conclude that each fails to circumvent the discretionary function exception. The
2
Plaintiffs also direct us to a total of “16 allegations of policy breaches”
that can be found in their first amended complaint and their district court response to
the government’s motion. Reply Br. at 6. Any argument based on these additional
instances has been insufficiently briefed and therefore waived. See Fulghum v.
Embarq Corp., 785 F.3d 395, 410 (10th Cir. 2015).
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identified policies either are insufficiently specific to establish the required
mandatory duty or plaintiffs have failed to plausibly allege specific facts showing
that the asserted policy violation resulted in their injuries.
2. Public Policy Considerations
The second element of the discretionary function exception is also met here.
The government’s decisions about whether to use Mr. Quintana as an informant, how
to best supervise him in order to protect the public, and whether to notify others
about dangers he might pose “required the exercise of judgment based on
considerations of public policy.” Garling, 849 F.3d at 1295 (internal quotation
marks omitted). As the Ninth Circuit has explained:
[A]ny 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.
Gonzalez, 814 F.3d at 1033.
Similar policy-based considerations, weighing factors such as the risks of
disclosure of informants and operations and jeopardizing the success of
investigations against public safety, apply not only to the government’s duty to notify
potential victims of harms but also to decisions concerning whether to employ a
particular informant and the appropriate measures to be taken to protect the public
from potential harm caused by government informants.
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CONCLUSION
We affirm the district court’s order denying plaintiffs’ Rule 59(e) motion.
Plaintiffs’ motion to certify questions of state law to the New Mexico Supreme Court
is denied.
Entered for the Court
Allison H. Eid
Circuit Judge
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