   19-1147
   Huntress v. United States


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for the Second Circuit,
   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
   City of New York, on the 30th day of April, two thousand twenty.

   PRESENT:
                    GUIDO CALABRESI,
                    RICHARD C. WESLEY,
                    RICHARD J. SULLIVAN,
                         Circuit Judges.
   _____________________________________

   William L. Huntress, Acquest
   Development, LLC,

                Plaintiffs-Appellants,

                    v.                                       No. 19-1147

   United States of America,

               Defendant-Appellee.
_____________________________________



FOR PLAINTIFFS-APPELLANTS:                MICHAEL B. SMITH (Jonathan D. Lupkin,
                                          on the brief), Lupkin PLLC, New York,
                                          NY.

                                          Bradley R. Cahoon, Durham Jones &
                                          Pinegar, P.C., Salt Lake City, UT.

                                          Gary T. Cornwell, The Cornwell Law
                                          Firm, Wimberley, TX.

FOR DEFENDANT-APPELLEE:                   CHARLES S. JACOB, Assistant United
                                          States Attorney (Christopher Connolly,
                                          Assistant United States Attorney, on the
                                          brief), for Geoffrey S. Berman, United
                                          States Attorney for the Southern District
                                          of New York, NY.

      Appeal from the United States District Court for the Southern District of

New York (Oetken, J.).

      UPON      DUE      CONSIDERATION,         IT   IS    HEREBY      ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Plaintiffs-Appellants William Huntress and Acquest Development, LLC

(collectively, “Plaintiffs”) appeal from an order of the district court (Oetken, J.)

dismissing their complaint against the United States for lack of subject matter
jurisdiction. On appeal, Plaintiffs argue that the district court erred in concluding

that their claims, which allege that the government wrongfully prosecuted

Plaintiffs, were foreclosed by the discretionary function exception to the Federal

Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b).       See 28 U.S.C. § 2680(a).    We

assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal, to which we refer only as necessary to explain our decision.

      When considering the dismissal of a complaint under Federal Rule of Civil

Procedure 12(b)(1), “we review factual findings for clear error and legal

conclusions de novo.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)

(internal quotation marks omitted). “A case is properly dismissed for lack of

subject matter jurisdiction . . . when the district court lacks the statutory or

constitutional power to adjudicate it.”      Id.   The “plaintiff asserting subject

matter jurisdiction has the burden of proving by a preponderance of the evidence

that it exists.” Id.

      Plaintiffs brought their complaint under the FTCA, which provides

jurisdiction in the federal courts and waives the sovereign immunity of the United

States in claims involving injuries “caused by the negligent or wrongful act[s] or


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omission[s]” of government employees, subject to certain exceptions. 28 U.S.C.

§ 1346(b)(1). One such exception is found in 28 U.S.C. § 2680(a), known as the

“discretionary function exception,” which exempts from the FTCA’s grant of

jurisdiction “[a]ny 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.” Id. § 2680(a). Accordingly, courts must dismiss claims based on the

performance of discretionary functions for lack of subject matter jurisdiction. See,

e.g., Fazi v. United States, 935 F.2d 535, 539 (2d Cir. 1991).

      The discretionary function exception applies when two conditions are met.

First, the challenged acts must “involve[] an element of judgment or choice.”

Berkovitz v. United States, 486 U.S. 531, 536 (1988). Second, the judgment must be

“of the kind that the discretionary function exception was designed to shield,”

meaning the conduct is a “governmental action[]” or “decision[] based on

considerations of public policy” or susceptible to policy analysis. Id. at 536–37;

see also United States v. Gaubert, 499 U.S. 315, 325 (1991). “[T]he purpose of the

exception is to prevent judicial second-guessing of legislative and administrative


                                            4
decisions grounded in social, economic, and political policy through the medium

of an action in tort.”   Gaubert, 499 U.S. at 323 (internal quotation marks and

citation omitted).

      On its face, the gravamen of Plaintiffs’ complaint is that EPA agents

wrongfully procured and prosecuted indictments against Plaintiffs.        See, e.g.,

App’x at 13 (“The government’s conduct in indicting Bill Huntress and Acquest . . .

was unlawful.”); App’x at 31 (“Not once, but twice, the EPA procured indictments

of Bill Huntress and his company based on [its allegedly unconstitutional]

‘interpretation’” of the federal Clean Water Act); App’x at 48 (“By this Complaint

Plaintiffs respectfully allege that the EPA’s act of ‘making an example’ of Bill

Huntress, and ‘hitting him as hard as possible’ – by indicting him, publicly

accusing him of being a felon, destroying his ability to conduct his business, and

subjecting him to possible incarceration in a federal penitentiary – even though a

step down from crucifixion, is a Constitutionally unacceptable means for the EPA

to make the populace ‘really easy to manage.’”).    These allegations, which are

grounded in “an agency’s decision . . . to prosecute or enforce, whether through

civil or criminal process,” clearly involved “decision[s] generally committed to an


                                        5
agency’s absolute discretion.”      Heckler v. Chaney, 470 U.S. 821, 831 (1985).

“[C]ourts have uniformly found” such “quintessential examples of governmental

discretion . . . to be immune under the discretionary function exception.” Gray v.

Bell, 712 F.2d 490, 513 (D.C. Cir. 1983); see also Wang v. United States, 61 F. App'x

757, 759 (2d Cir. 2003) (summary order) (“Conduct taken by law enforcement

agents involving an element of discretion . . . is bulletproof from liability under the

operative discretionary function exception.”).

      Plaintiffs contend that the discretionary function provision nevertheless

should not apply to bar claims alleging unconstitutional or illegal conduct,

because such conduct is necessarily outside the “permissible” exercise of

judgment. Plaintiffs’ Br. at 22–23. To be sure, as the district court recognized,

“[i]t is, of course, a tautology that a federal official cannot have discretion to

behave unconstitutionally or outside the scope of his delegated authority.”

App’x at 64 (quoting Myers & Myers, Inc. v. U.S. Postal Serv., 527 F.2d 1252, 1261

(2d Cir. 1975)).   But mere conclusory assertions of unconstitutionality cannot

carry Plaintiffs’ burden of establishing jurisdiction. Here, Plaintiffs’ complaint,

construed in the light most favorable to Plaintiffs, fails to provide factual


                                          6
allegations that would permit the Court to find that the alleged conduct fell

outside the scope of the discretionary function exception. We therefore find that

the allegedly wrongful conduct, as described in Plaintiffs’ complaint, involved an

exercise of discretion and was susceptible to policy analysis. Accordingly, the

district court did not err in holding that Plaintiffs’ claims were foreclosed by the

discretionary function exception to the FTCA.

                                    Conclusion

      We have reviewed the remainder of Plaintiffs’ arguments – including that

Plaintiffs’ claims fall within and are specifically authorized by the law enforcement

proviso of the intentional tort exception – and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




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