     Case: 19-10202   Document: 00515266578     Page: 1   Date Filed: 01/10/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                             United States Court of Appeals
                                                                      Fifth Circuit

                                                                    FILED
                                 No. 19-10202                January 10, 2020
                                                               Lyle W. Cayce
BRUCE JOINER,                                                       Clerk


             Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

             Defendant - Appellee




                 Appeal from the United States District Court
                      for the Northern District of Texas


Before WIENER, HIGGINSON, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      The district court dismissed this case for lack of subject matter
jurisdiction under the Federal Tort Claims Act and the Anti-Terrorism Act. It
also precluded additional discovery. We affirm.
                                         I.
      On May 3, 2015, Bruce Joiner was on duty as a security guard for the
“First Annual Muhammed Art Exhibit and Contest” in Garland, Texas. That
day, a pair of Islamic terrorists—Elton Simpson and Nadir Soofi—attacked the
event site and shot Joiner in the leg.

      Both Simpson and Soofi were subjects of an ongoing FBI investigation at
the time of the shooting. As early as 2007, Simpson, an Arizona citizen, was
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flagged for potential terrorist sympathies. By 2010, Simpson became friendly
with Soofi, a fellow mosque member. Around this time, Soofi attempted to
purchase a handgun from the Lone Wolf Trading Company in Arizona. The
Lone Wolf store was part of the Bureau of Alcohol, Tobacco and Firearms’ “Fast
and Furious” gunwalking operation, where federal agents would sell firearms
to unauthorized buyers in hopes of tracing them back to the Mexican cartel. A
background check identified Soofi as possibly being ineligible to purchase a
firearm, and a seven-day hold was initially placed on the sale. It was lifted
after twenty-four hours, at which point Soofi bought the gun.

      On January 7, 2015, terrorists affiliated with al-Qaeda attacked the
Paris offices of Charlie Hebdo in retaliation for the magazine’s publication of
cartoons depicting the prophet Muhammad. Ten days later, an Islamic group
held a conference at the Curtis Culwell Center in Garland, Texas, called “Stand
with the Prophet in Honor and Respect.” The conference featured criticism of
those who published likenesses of Muhammad.              In response, another
organization planned a “Draw the Prophet” event, also to be held in Garland.

      Simpson denounced the “Draw the Prophet” event in a Twitter exchange
with Mohamed Abdullahi Hassan, an ISIS leader in Somalia.              Simpson
tweeted, “When will they ever learn,” and Hassan responded, “The brothers
from the Charlie Hebdo attack did their part. It’s time for brothers in the #US
to do their part.”

      At this point, Erick Jamal Hendricks, a South Carolina man, contacted
Simpson via Twitter. Hendricks had been working to establish an ISIS cell in
the United States and was being investigated by and in communication with
an undercover FBI agent known as UCE-1.            UCE-1 initially contacted
Hendricks on social media, posing as a Muslim interested in joining ISIS. After
vetting UCE-1, Hendricks asked for his help recruiting members for a domestic
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terror group. UCE-1 contacted Simpson on April 23, 2015, at Hendricks’
instruction. The next day, Simpson and UCE-1 had the following conversation
over social media:

      UCE-1: Tear up Texas.
      Simpson: Bro, u don’t have to say that . . . U know what happened in
      Paris . . . I think . . . Yes or no . . . ?
      UCE-1: Right.
      Simpson: So that goes without saying . . . No need to be direct.

      UCE-1 remained in communication with Hendricks about the upcoming
Garland event. Hendricks explained that he was on the no-fly list and could
not travel to Texas. UCE-1 volunteered to go instead. Hendricks told UCE-1,
“You can link with him [Simpson] brother. That’s your call.”

      On May 3, UCE-1 traveled to Garland where the “Draw the Prophet”
event was taking place. UCE-1 drove his own car and Simpson and Soofi
followed in another vehicle. UCE-1 communicated with Hendricks in real time,
informing him that he was in the vicinity and implying he was armed.
Hendricks asked a variety of questions about the security setup at the site. As
the two cars approached a police barricade at the rear entrance to the event,
UCE-1 took a photograph of the area on his cell phone. Two security officers,
including Joiner, were visible in the background.

      Simpson’s car pulled up to the barricade. Simpson and Soofi jumped out
and began shooting, hitting Joiner in the leg.

      Joiner filed suit against the United States under the Federal Tort Claims
Act (“FTCA”) and the Anti-Terrorism Act (“ATA”), for assault and
international terrorism, respectively. The government moved to dismiss under
Federal Rule of Civil Procedure 12(b)(1), stating that the FTCA claim was
barred by the discretionary function exception and that there was no waiver of

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sovereign immunity on the ATA claim. The district court granted the motion
and concluded that Joiner was not entitled to further discovery.

                                        II.

      Sovereign immunity implicates a federal court’s subject matter
jurisdiction and is subject to de novo review. Tsolmon v. United States, 841
F.3d 378, 382 (5th Cir. 2016). In assessing whether there is jurisdiction, courts
may consider: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts. Id.

      Discovery decisions are reviewed for abuse of discretion.         Grogan v.
Kumar, 873 F.3d 273, 280 (5th Cir. 2017).

                                       III.
      The FTCA provides a limited waiver of sovereign immunity for certain
tortious government conduct. 28 U.S.C. § 1346. However, if the suit implicates
“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”—the so-
called “discretionary function” exception—sovereign immunity is retained. 28
U.S.C. § 2680(a). The discretionary function exception “prevent[s] ‘judicial
second-guessing’ of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.” United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467
U.S. 797, 814 (1984). As the district court correctly noted, “[a]t the pleading
stage, the plaintiff has the burden to ‘invoke the court’s jurisdiction by alleging
a claim that is facially outside of the discretionary function exception.’” Gibson
v. United States, 809 F.3d 807, 811 n.1 (5th Cir. 2016) (quoting Freeman v.

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United States, 556 F.3d 326, 334 (5th Cir. 2009)). Thus, Joiner carries the
burden of establishing that the discretionary function exception does not apply
at this stage in the proceedings.
         The parties dispute whether exceptions to the FTCA should be construed
in favor of the sovereign or in favor of the plaintiff. The district court “strictly
construe[d] . . . waivers [of sovereign immunity], resolving all ambiguities in
favor of the sovereign.” As a general matter, the district court is certainly
correct. See Lane v. Pena, 518 U.S. 187, 195 (1996) (noting the “established
practice of construing waivers of sovereign immunity narrowly in favor of the
sovereign”). But “unduly generous interpretations of the exceptions [to the
FTCA] run the risk of defeating the central purpose” of the FTCA, making
application of this general rule improper in this context. Dolan v. United States
Postal Serv., 546 U.S. 481, 491–92 (2006) (quoting Kosak v. United States, 465
U.S. 848, 853 n.9 (1984)). Instead, our objective when construing an exception
to the FTCA “is to identify ‘those circumstances which are within the words
and reason of the exception’—no less and no more.” Kosak, 465 U.S. at 853 n.9
(quoting Dalehite v. United States, 346 U.S. 15, 31 (1953)). Therefore, the
district court erred in stating the standard for construing exceptions to the
FTCA; we do not construe exceptions to the FTCA in favor of any particular
party.     But as explained below, this error was harmless because Joiner’s
contentions fail either way.
      The discretionary function exception has two parts. First, the court must
consider whether the conduct at issue was “discretionary in nature” and
involved an “element of judgment or choice.” United States v. Gaubert, 499
U.S. 315, 322 (1991). If a plaintiff can point to a “specific, nondiscretionary
function or duty” that “prescribe[s] a specific course of action for an agency or
employee,” then there is no discretion. Freeman, 556 F.3d at 338. Second, if
there is discretion, the court must evaluate whether it is “of the kind that the
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discretionary function exception was designed to shield.” Gaubert, 499 U.S. at
322–23 (quoting Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536
(1988)).

      Joiner contends that UCE-1 violated a specific policy: the Attorney
General’s    Guidelines   on   FBI   Undercover     Operations’s    (“AGG-UCO”)
requirement that, when “an undercover employee learns that persons under
investigation intend to commit a violent crime, he or she shall try to discourage
the violence,” and that an “undercover employee shall be instructed that he or
she shall not participate in any act of violence.” Undercover and Sensitive
Operations Unit, Attorney General’s Guidelines on FBI Undercover Operations
§ VI.A.2 (1992). Joiner further cites the FBI Domestic Investigations and
Operations Guide (“DIOG”), which states that “certain types of [otherwise
illegal activity] cannot be authorized, such as . . . participation in an act of
violence.”    FBI Domestic Investigations and Operations Guide § 17.1.
Specifically, Joiner posits that UCE-1 contributed to the violence in Garland
by sending the “Tear up Texas” message and by traveling to the event site and
communicating with Hendricks about the security setup there, as well as by
failing to discourage the violent acts.

      The government responds that the AGG-UCO and DIOG do not govern
the activities of undercover FBI agents engaged in investigations concerning
national security.   The government submitted an affidavit from the FBI’s
Acting Assistant Director for the Counterterrorism Division stating that the
operative policy document for counterterror operations is the National Security
Undercover Operations Policy Implementation Guide (“NSUCOPG”).                The
affidavit explains that the NSUCOPG, the bulk of which is classified at
“Secret” or above, “functions as a standalone policy, and there is no other FBI
policy that specifically applies” to national security investigations. It affirms

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that the NSUCOPG “does not contain any provision directing the particular
operational manner in which the undercover technique should be carried out.”
It also notes that the types of activities UCE-1 engaged in are routine,
undercover actions.

      Even accepting, arguendo, that the AGG-UCO and DIOG control the
FBI’s actions in this case, the government’s actions here do not violate any
stated policy. First, the AGG-UCO directs agents only to “try to discourage”
potential violence. Far from being an explicit command to behave in a certain
manner, the language explicitly affords agents latitude in deciding the extent
of appropriate action. In other words, the directive retains “an element of
judgment or choice”—the basis for the discretionary function exception.
Gaubert, 499 U.S. at 322. See also Gonzalez v. United States, 814 F.3d 1022,
1031–32 (9th Cir. 2016) (holding that a DIOG policy that an “employee must
attempt expeditiously to notify other law enforcement agencies” of a threat was
“replete with discretionary determinations” and “not the language of ‘a specific
statutory or regulatory directive’”) (quoting Berkovitz, 468 U.S. at 542–43).

      Joiner’s second argument that the government breached the AGG-UCC
and DIOG’s policies prohibiting “participation” in an act of violence is equally
unavailing.   Joiner has not demonstrated that any of the FBI’s or UCE-1’s
actions rise to the level of “participating” in an act of violence. Indeed, at oral
argument, Joiner admitted that his strongest case for the government’s
involvement in the eventual injury was UCE-1’s “communication” with
Simpson, Soofi, and Hendricks, providing reconnaissance, and traveling to the
site. But such a broad reading of “participation” that encompasses actions that
are only remotely related to the ultimate injury is inconsistent with sovereign
immunity jurisprudence. We decline to adopt such an expansive interpretation
of the term “participation,” particularly in light of the Supreme Court’s

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instruction that we must not construe ambiguities in the FTCA context in any
particular party’s favor. See Kosak, 465 U.S. at 853 n.9 (quoting Dalehite v.
United States, 346 U.S. 15, 31 (1953)). We thus conclude that, even if we were
to accept Joiner’s proposed framework, the government did not violate any
directives prohibiting agents from engaging in acts of violence.

      Because Joiner cannot satisfy the first prong of the discretionary
function analysis, we do not consider the second step of whether the discretion
is of the type meant to be protected.

      Next, Joiner argues that the Fast and Furious gun sale contravened the
FBI’s express policy prohibiting the sale of firearms to suspected terrorists.
The district court disagreed, detailing instances of the agency’s discretion and
ultimately concluding that the agency did not violate a policy or a statute. On
appeal, Joiner recites the facts relating to the gunwalking operation but does
not tie those facts back to the discretionary function exception. The argument
is inadequately briefed and thus waived. See McIntosh v. Partridge, 540 F.3d
315, 325 n.12 (5th Cir. 2008).

      Appellant also claims that the discretionary function exception is not
applicable in this instance because the “law enforcement proviso” effectively
overrides it. The FTCA does waive sovereign immunity for certain tortious
acts stemming from “acts or omissions of investigative or law enforcement
officers of the United States Government”—presumably like UCE-1. 28 U.S.C.
§ 2680(h).   But this argument is similarly waived.       The law enforcement
proviso is mentioned only in passing in Joiner’s complaint, and without any
reference or connection to the discretionary function exception. We find the
argument has not been sufficiently preserved. See Belt v. EmCare, Inc., 444
F.3d 403, 408 (5th Cir. 2006) (“If a litigant desires to preserve an argument for
appeal,” it must be raised to “such a degree that the district court has an
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opportunity to rule on it.”) (quoting FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th
Cir. 1994)).

      Consequently, Joiner has not established that the discretionary function
exception does not apply under the FTCA. Sovereign immunity has not been
waived.

                                       IV.

      Appellant also challenges the district court’s decision not to recognize the
state-created danger doctrine, which theorizes that the government may be
liable for tortious conduct “if the state actor created or knew of a dangerous
situation and affirmatively placed the plaintiff in that situation.” Doe ex rel.
Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 864 (5th Cir.
2012) (en banc). Joiner asserts that the FBI, and UCE-1’s actions, contributed
to endangering lives and led to his injury. He does not argue that the state-
created danger doctrine provides an independent basis for liability under the
FTCA.     Instead, the claim is that the doctrine is a limitation on the
discretionary function exception—namely that the government never has the
discretion to imperil its citizens or commit acts of violence against them.

      We have repeatedly declined to recognize the state-created danger
doctrine in this circuit.   See, e.g., Cook v. Hopkins, No. 19-10217, 2019
WL5866683, at *5 (5th Cir. Nov. 8, 2019) (per curiam); Estate of C.A. v. Castro,
547 F. App’x. 621, 626 (5th Cir. 2013) (per curiam); Whitley v. Hanna, 726 F.3d
631, 639 n.5 (5th Cir. 2013); Doe, 675 F.3d at 866; Beltran v. City of El Paso,
367 F.3d 299, 307 (5th Cir. 2004). Joiner has been unable to point to a single
case where a plaintiff has used the state-created danger doctrine to overcome
the FTCA’s discretionary function exception. Instead, the doctrine, where
applicable, generally permits a plaintiff to proceed on a claim when sovereign

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immunity is already waived, as in suits under 28 U.S.C. § 1983. We thus
decline to forge new circuit precedent and adopt the state-created danger
doctrine in such uncharted territory.

                                              V.

      Joiner also appeals the district court’s dismissal of the case for lack of
subject matter jurisdiction under the Anti-Terrorism Act. The ATA states that
“[n]o action shall be maintained” against “the United States, an agency of the
United States, or an officer or employee of the United States” from injury
arising from international terrorism. 18 U.S.C. § 2337. Joiner argues that the
Geneva Convention’s prohibition of a signatory’s “absolv[ing] itself . . . of any
liability incurred by itself . . . in respect of breaches” functions as customary
international law and waives sovereign immunity. But a waiver of sovereign
immunity “cannot be implied but must be unequivocally expressed.” United
States v. King, 395 U.S. 1, 4 (1969).         Congress has explicitly stated that
sovereign immunity shall not be waived for injuries related to terrorist
incidents. The district court properly dismissed the ATA claims for lack of
subject matter jurisdiction.

                                        VI.

      Lastly, Joiner challenges the district court’s ruling that discovery was
unlikely to overcome the discretionary function exception. Plaintiffs bear the
burden of demonstrating the necessity of discovery. See Davila v. United
States, 713 F.3d 248, 264 (5th Cir. 2013); Freeman, 556 F.3d at 341–42. A
plaintiff is “not entitled to jurisdictional discovery if the record shows that the
requested discovery is not likely to produce the facts needed to withstand a
Rule 12(b)(1) motion.” Freeman, 556 F.3d at 342. That burden is even greater
when “the party seeking discovery is attempting to disprove the applicability

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of an immunity-derived bar to suit because immunity is intended to shield the
defendant from the burdens of defending the suit, including the burdens of
discovery.”   Id.   Joiner offers only conjecture as to how the government’s
interactions with Simpson and Soofi led to his injury, speculating that the
government may have aided in procuring weapons or provided additional
communications with the terrorists on the day of the shooting.              These
recitations are insufficient to establish that further discovery will overcome the
discretionary function exception and defeat sovereign immunity. The district
court did not abuse its discretion by barring additional discovery.

                                      ***

      For the foregoing reasons, we affirm.




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