                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 26 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JEFFREY J. GORDON and VICKI                     No.    16-35867
GORDON,
                                                D.C. No. 4:15-cv-05073-SAB
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

UNITED STATES OF AMERICA,

                Defendant-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Stanley Allen Bastian, District Judge, Presiding

                       Argued and Submitted June 13, 2018
                              Seattle, Washington

Before: GOULD and WATFORD, Circuit Judges, and ROTHSTEIN,** District
Judge.

      Jeffrey and Vicki Gordon appeal the district court’s dismissal of their

malicious prosecution claim, which they brought under the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2680(h). We have jurisdiction under 28


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
U.S.C. § 1291, and we affirm.1

        Approximately five years before bringing the instant claim, Jeffrey Gordon,

along with others in Washington’s potato farming industry, was indicted on one

count of Conspiracy to Make False Statements and Commit Fraud and one count of

Making a False Application, in connection with his submissions to insurance

companies that were reinsured by the federal crop insurance program, which is

operated by the United States Department of Agriculture (“USDA”). The case

proceeded to a jury trial, and both charges against Gordon were ultimately

dismissed by the trial court. In the instant action, the Gordons allege that the

United States, acting through Steve Tillotson, a Special Agent within the USDA’s

Office of the Inspector General (“OIG”), provided incomplete, false, and

misleading testimony to the grand jury that indicted Gordon.

        The district court properly found that it lacked subject matter jurisdiction to

consider the Gordons’ FTCA claim. The FTCA serves as a partial abrogation of

the United States’s immunity from suit, conferring jurisdiction upon district courts

to hear allegations of tortious conduct by Government employees and agencies in

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); see Millbrook v. United States, 569 U.S. 50, 52


1
    The Gordons’ Motion to Take Judicial Notice is hereby granted.
(2013). An FTCA plaintiff bears the initial burden of demonstrating that its claims

fall within § 1346(b)(1)’s general waiver of immunity. Faber v. United States, 56

F.3d 1122, 1124 (9th Cir. 1995). Even where a plaintiff meets this burden, its

claims may nevertheless be barred by one of the Act’s many exceptions. 28 U.S.C.

§ 2680(a). The United States bears the burden of proving the applicability of any

FTCA exception. Prescott v. United States, 973 F.2d 696, 701-02 (9th Cir. 1992).

Where any of § 1346(b)(1)’s elements have not been met—and/or where an

exception applies—the Government has not waived its immunity, and the court

lacks subject matter jurisdiction and must dismiss the case. Sabow v. United States,

93 F.3d 1445, 1451 (9th Cir. 1996), as amended (Sept. 26, 1996).

      Here, the Gordons failed to sufficiently allege a claim of malicious

prosecution. See Gem Trading Co. v. Cudahy Corp., 603 P.2d 828, 832 (Wash.

1979).2 The Gordons failed to point to any of Tillotson’s testimony, let alone the

portions of his testimony that they consider false or misleading. Additionally, it is

the role of the prosecutor—and not the witness—to elicit testimony and otherwise


2
  To maintain an action for malicious prosecution in Washington, “the plaintiff
must allege and prove (1) that the prosecution claimed to have been malicious was
instituted or continued by the defendant; (2) that there was want of probable cause
for the institution or continuation of the prosecution; (3) that the proceedings were
instituted or continued through malice; (4) that the proceedings terminated on the
merits in favor of the plaintiff, or were abandoned; and (5) that the plaintiff
suffered injury or damage as a result of the prosecution.” Gem Trading Co., 603
P.2d at 832 (quoting Peasley v. Puget Sound Tug & Barge Co., 125 P.2d 681, 687
(Wash. 1942)).
present evidence to the grand jury. Cf. Moore v. Valder, 65 F.3d 189, 196-97

(D.C. Cir. 1995); Gray v. Bell, 712 F.2d 490, 516 (D.C. Cir. 1983). Thus, the

Gordons failed to meet their burden of establishing that their claim falls within §

1346(b)(1)’s general waiver of immunity, and the district court lacked subject

matter jurisdiction to consider their claim. See Faber, 56 F.3d at 1124.

      Additionally, Tillotson’s conduct in investigating Gordon’s alleged

fraudulent activity is protected by the FTCA’s discretionary function exception.

The discretionary function exception prohibits 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 be abused,” 28 U.S.C. § 2680(a), and applies where the

complained of conduct involves an element of judgment or choice and is grounded

in public policy. Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008)

(citing United States v. Gaubert, 499 U.S. 315, 322 (1991)); Berkovitz v. United

States, 486 U.S. 531, 536 (1988). Tillotson’s actions during his investigation were

done pursuant to the broad discretion afforded to OIG agents by the Inspector

General Act, 5 U.S.C. app. 3 § 6, the Agriculture and Food Act, 5 U.S.C. app. 4 §

4(d), and OIG’s implementing regulations, 7 C.F.R. pt. 1a. Accordingly, the

district court properly determined that the Gordons’ claim is barred by the

discretionary function exception. See, e.g., Berkovitz, 486 U.S. at 536; Gaubert,
499 U.S. at 324; Gonzalez v. United States, 814 F.3d 1022 (9th Cir. 2016); Sabow,

93 F.3d at 1451; Vickers v. United States, 228 F.3d 944, 951 (9th Cir. 2000).

      The district court properly considered evidence outside the pleadings in

ruling on the Government’s Rule 12(b)(1) motion to dismiss. See McCarthy v.

United States, 850 F.2d 558, 560 (9th Cir. 1988) (“[W]hen considering a motion to

dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of

the pleadings, but may review any evidence, such as affidavits and testimony, to

resolve factual disputes concerning the existence of jurisdiction.”); see also Land v.

Dollar, 330 U.S. 731, 735 n.4 (1947) (“[W]hen a question of the District Court’s

jurisdiction is raised … the court may inquire by affidavits or otherwise, into the

facts as they exist.”); cf. Robinson v. United States, 586 F.3d 683, 685 (9th Cir.

2009). Specifically, the district court properly considered Tillotson’s declaration

and grand jury testimony—as well as the declaration submitted by the Gordons—

and did not err in declining to convert the Rule 12(b)(1) motion to dismiss into a

Rule 56 motion for summary judgment. See, e.g., Green v. United States, 630 F.3d

1245,1248 n.3 (9th Cir. 2011); Robinson, 586 F.3d at 685; Kingman Reef Atoll

Investments, L.L.C. v. United States, 541 F.3d 1189, 1193 (9th Cir. 2008);

Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983).

      AFFIRMED.
