                                                                              FILED
                             NOT FOR PUBLICATION                              DEC 10 2012

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


VERNON PARKER, husband and LISA                  No. 11-16389
FARRINGER PARKER, wife,
                                                 D.C. No. 2:10-cv-01407-SRB
                Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

UNITED STATES OF AMERICA,

                Defendant - Appellee.


                     Appeal from the United States District Court
                              for the District of Arizona
                      Susan R. Bolton, District Judge, Presiding

                             Submitted December 6, 2012**
                               San Francisco, California

Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.

       Appellants Vernon Parker and Lisa Farringer Parker appeal from the district

court’s order dismissing their Complaint for lack of subject matter jurisdiction and



            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291, and now

affirm.

      The district court found that the Parkers’ abuse of process claim was covered

by the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. §

2680(a), and dismissed it for lack of subject matter jurisdiction. We agree. The

government has established that the Small Business Administration’s Office of

Inspector General’s investigation into VBP Group, LLC’s 8(a) certification

application was not subject to any legal constraint or mandatory procedure under

federal law; Special Agent Lee Bacon retained discretion, and his investigation was

“susceptible to a policy analysis.” Green v. United States, 630 F.3d 1245, 1249,

1251 (9th Cir. 2011) (quotation marks omitted). The subjective motivations or

procedural irregularities the Parkers allege are irrelevant, as this discretionary

government function as a whole is excepted from the FTCA’s waiver of sovereign

immunity. United States v. Gaubert, 499 U.S. 315, 324-25 (1991); Sabow v.

United States, 93 F.3d 1445, 1452 n.6, 1454 (9th Cir. 1996). This investigation

was not only susceptible to a policy analysis, but was informed by policy




                                           2
considerations in ascertaining whether a regulatory scheme’s rules had been

violated. This claim was properly dismissed for lack of jurisdiction.1

      The district court also dismissed the negligent supervision claim for failure

to state a claim. However, since the discretionary function exception is a threshold

jurisdictional matter, we must resolve this question prior to reaching the motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6). We may affirm on any

grounds supported by the record, Schechner v. KPIX-TV, 686 F.3d 1018, 1022-23

(9th Cir. 2012), and now hold that the Parkers’ negligent supervision claim is also

barred by the discretionary function exception. The Ninth Circuit has stated that

negligent supervision claims “fall squarely within the discretionary function

exception.” Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000); see also

Gager v. United States, 149 F.3d 918, 921-22 (9th Cir. 1998). The SBA’s

supervision of its staff is clearly a discretionary function, entails the consideration

of policies and competing administrative and investigatory priorities, and is

therefore immunized from liability under the FTCA. The district court’s ruling is

therefore affirmed on the alternative ground of lack of subject matter jurisdiction.

      AFFIRMED.

      1
          The district court ruled, in the alternative, that the Parkers had failed to
state a claim for abuse of process. We need not reach this ruling, as we have
already affirmed the dismissal of this claim on jurisdictional grounds.

                                            3
