                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         April 10, 2020
                         _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 MOHAMMAD ABED AWAD,

       Plaintiff - Appellant,

 v.                                                        No. 18-2159
                                                (D.C. No. 1:15-CV-00373-MV-CG)
 UNITED STATES OF AMERICA,                                   (D. N.M.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.
                  _________________________________

      Mohammad Abed Awad appeals from the dismissal of his claims for

negligence, false arrest, and false imprisonment brought under the Federal Tort

Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1) and 2671-2680. We affirm.

                                          I

       On February 20, 2012, an undercover officer with the Albuquerque Police

Department (APD) purchased a controlled substance from an individual working at a



      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
smoke shop owned by Awad. The transaction was recorded on video, and according

to the APD officer’s report, the seller “appeared to be Mohammed Awad.” Aplt.

App. at 44. Two years later, in March 2014, two federal agents with the Drug

Enforcement Administration (DEA) reviewed the video, identified Awad as the

seller, and applied for search warrants.1 On March 20, 2014, after obtaining a

warrant, DEA agents executed a search warrant for Awad’s residence and arrested

him without a warrant. A grand jury later indicted him on a single count of

distributing a controlled substance analogue, and he was incarcerated from the date

of his arrest, March 20, 2014, until September 9, 2014, when the government

dismissed the charge because the seller in the video was actually Awad’s brother,

Belal Awad. On September 17, 2014, Belal (who resembles Awad) was indicted for

distribution of a controlled substance analogue based largely upon the video. The

supporting affidavit in that case identified Belal, not Awad, as the person in the

video.2 See Aplt. App. at 34-35 (Special Agent S. H. Aff.); id. at 208 (Dist. Ct. Order

at 3); see also Aplee. Br. at 3-4 (acknowledging the transaction involved Belal, not

Awad).




      1
        According to the supporting affidavit, the APD undercover officer believed
Awad was the individual with whom he made contact in the store; after reviewing the
video, the two DEA agents did as well.
      2
         The supporting affidavit in Belal’s case indicates his uncle identified Belal as
the salesman of the transaction from still photos of the video. See Aplt. App. at 35.
The district court ultimately dismissed Belal’s case without prejudice. See United
States v. Belal Awad, No. 14-CR-3611-MCA (D. N.M. Feb. 17, 2015).
                                            2
      Based on these facts, Awad brought this FTCA action against the United

States, asserting negligence, false arrest, and false imprisonment. The premise for all

three claims was his allegation that the DEA agents incorrectly identified him as the

seller in the video. As he would have it, the agents violated DEA policies by

executing a warrantless arrest without probable cause.

      The government sought dismissal under Fed. R. Civ. P. 12(b)(1), or,

alternatively, summary judgment under Fed. R. Civ. P. 56. It contended the district

court lacked subject matter jurisdiction because all three claims fell under the

discretionary function exception to the FTCA’s waiver of sovereign immunity. It

also argued that the false arrest and false imprisonment claims did not fall under the

FTCA’s separate waiver for enumerated intentional torts committed by law

enforcement officers. According to the government, the false arrest and false

imprisonment claims were based on the DEA agents’ misidentification of Awad as

the seller, which alleged negligence, but not intentionally tortious conduct.

      A report and recommendation from a magistrate judge recommended

dismissing all three claims under the discretionary function exception. The district

judge decided the discretionary function exception barred Awad’s negligence claim

and the false arrest and false imprisonment claims did not fall under the waiver of

sovereign immunity for intentional torts committed by law enforcement officers. The

latter because Awad did not allege the DEA agents intentionally misidentified him or

arrested and incarcerated him in spite of knowing he was not the seller. Looking to

the facts alleged rather than the “intentional” labels Awad assigned to the motives

                                           3
and acts of the agents, the district judge concluded these allegations amounted to

negligence or recklessness at most, and therefore, the government was entitled to

summary judgment. Awad appealed.

                                           II

      A. Standard of Review

      A district court must convert a motion to dismiss under Fed. R. Civ. P.

12(b)(1) to a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or a motion for

summary judgment under Fed. R. Civ. P. 56 “if the jurisdictional question is

intertwined with the merits of the plaintiff’s case.” Bell v. United States, 127 F.3d

1226, 1228 (10th Cir. 1997) (brackets and internal quotation marks omitted).

“Whether the discretionary-function exception applies is such a question.” Franklin

Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir. 1999). The judge

correctly treated the government’s dispositive motion as a motion for summary

judgment under Rule 56. See Garcia v. U.S. Air Force, 533 F.3d 1170, 1174, 1175

(10th Cir. 2008). We review the judge’s “determination of the applicability of the

discretionary function exception de novo, considering the allegations in the

complaint as well as the evidence in the record.” Id. Summary judgment is

appropriate if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

      B. Discretionary Function Exception

      “[T]he FTCA waives sovereign immunity for certain state law tort claims

against the United States.” Garling v. U.S. Envtl. Prot. Agency, 849 F.3d 1289, 1294

                                           4
(10th Cir. 2017). However, several types of claims are excepted from the waiver of

sovereign immunity, including claims involving discretionary functions. See

28 U.S.C. § 2680(a). Under the discretionary function exception, the United States

retains sovereign immunity for:

      [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.; see also Garling, 849 F.3d at 1295. The discretionary function “exception marks

the boundary between Congress’ willingness to impose tort liability upon the United

States and its desire to protect certain governmental activities from exposure to suit

by private individuals.” Elder v. United States, 312 F.3d 1172, 1176 (10th Cir. 2002)

(internal quotation marks omitted). “Because the exception applies whether or not

the discretion involved was abused, it is irrelevant whether the government

employees were negligent.” Id. (brackets and internal question marks omitted).

      “To determine whether the discretionary function exception applies to the

challenged conduct, this circuit employs the two-pronged test of Berkovitz v. United

States, 486 U.S. 531, 536 (1988).” Id. We first ask whether the conduct is

discretionary, that is, whether “it involves an element of judgment or choice.”

Berkovitz, 486 U.S. at 536. “[T]he discretionary function exception will not apply

when a federal statute, regulation, or policy specifically prescribes a course of action

for an employee to follow.” Id. “Second, if the conduct was discretionary, we

consider whether it required the exercise of judgment ‘based on considerations of


                                           5
public policy.’” Garling, 849 F.3d at 1295 (quoting Berkovitz, 486 U.S. at 537); see

Elder, 312 F.3d at 1181 (“Only decisions susceptible to policy analysis are protected

by the exception.” (internal quotation marks omitted)). This element furthers the

goal of the exception, which is “to prevent judicial second guessing of legislative and

administrative decisions grounded in social, economic, and political policy through

the medium of an action in tort.” Elder, 312 F.3d at 1176 (internal quotation marks

omitted). If both prongs of the Berkovitz test are satisfied, the discretionary function

exception applies, the court lacks jurisdiction, and the claim is barred.

       C. Intentional Torts & the Law Enforcement Proviso

       There is another exception to the FTCA’s sovereign immunity waiver for

certain intentional torts, including false arrest and false imprisonment. See 28 U.S.C.

§ 2680(h).3 But, as sometimes happens, there is an exception to the exception:

Congress included a proviso waiving sovereign immunity for six enumerated

intentional torts “when they arise from the ‘acts or omissions’ of federal ‘law

enforcement officers.’” Garling, 849 F.3d at 1295 (quoting § 2680(h)). “Known as

the ‘law enforcement proviso,’” Millbrook v. United States, 569 U.S. 50, 52 (2013),

§ 2680(h) states: “Provided[] [t]hat, with regard to acts or omissions of investigative

or law enforcement officers of the United States Government, the provisions of this

chapter and section 1346(b) of this title shall apply to any claim arising . . . out of


       3
         28 U.S.C. § 2680(h) excludes from the sovereign immunity waiver “[a]ny
claim arising out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights[.]”
                                             6
assault, battery, false imprisonment, false arrest, abuse of process, or malicious

prosecution,” § 2680(h) (italics omitted). The law enforcement proviso “carved out

an exception to § 2680(h)’s preservation of the United States’ sovereign immunity

for intentional torts . . . that arise out of the wrongful conduct of law enforcement

officers.” Millbrook, 569 U.S. at 52.

                                           III

      Awad asserts claims for negligence, false arrest, and false imprisonment. We

first evaluate his negligence claim and then his intentional tort claims.

      A. Negligence

      Awad alleged the DEA agents were negligent in misidentifying him as the

seller in the video. He averred the arresting DEA agent simply reviewed the 2-year-

old video and identified him as the seller, even though the Albuquerque police officer

indicated in his report that the seller only “appeared to be Mohammed Awad.” Aplt.

App. at 13, para. 28. He further alleged the agents knew the smoke shop was

operated by family members who resembled one another, yet the agents made the

identification without having any prior encounters to positively identify him. Based

on these general allegations, Awad claimed the government was liable for the agents’

negligence because they “negligently and falsely identified [him] as an individual

who had distributed a controlled substance . . . .” Id. at 21, para. 85. He further

alleged they “negligently arrested [him] falsely,” id., para. 86, “and thereafter

negligently incarcerated [him] continuously for 173 consecutive days,” id. at 22,

para. 87.

                                            7
      This claim satisfies the first prong of the Berkovitz test because the manner in

which law enforcement agents conduct their investigation and identify suspects

involves elements of judgment or choice. See Garling, 849 F.3d at 1296 (holding

that investigation by Environmental Protection Agency was discretionary); see also

Mesa v. United States, 123 F.3d 1435, 1438 (11th Cir. 1997) (“We readily conclude

that the decisions regarding how to locate and identify the subject of an arrest

warrant and regarding whether the person apprehended is in fact the person named in

the warrant are discretionary in nature and involve an element of judgment or

choice.”). Indeed, the record contains undisputed evidence that the investigation and

identification of suspects is within the discretion of DEA case agents and their

supervisors. Aplt. App. at 73-74, para. 12 (Williams Decl., DEA Chief of

Operations). Agents have discretion to choose which “inquiries to undertake—and

the inquiries that are sufficient—to identify a suspect.” Id. at 74, para. 14. They also

“must consider the unique facts of each case, balance competing investigative

priorities, and apply their professional knowledge and experience to identify suspects

from their investigative activities.” Id.

      Awad disputes this conclusion, citing three specific DEA policies requiring

probable cause to effect an arrest or file a criminal complaint, but these policies are

inapposite.4 Of course, probable cause is a constitutional requirement of any arrest,

but Awad cites nothing that requires DEA agents to follow a “prescribe[d] course of


      4
       Awad relies on the DEA Agents Manual §§ 6641.12, 6641.13, and 6641.15.
See Aplt. App. at 37, 79.
                                            8
action” in gathering probable cause and identifying a suspect, Berkovitz, 486 U.S. at

536. Indeed, deciding whether probable cause has been established involves

discretion and judgment; the requirement for probable cause to exist does not make

the ultimate, evaluative decision non-discretionary. Cf. Taitt v. United States,

770 F.2d 890, 893 (10th Cir. 1985) (recognizing that statutory requirement for entry

into the witness protection program is a discretionary determination). Even if they

were mistaken, the DEA agents made a discretionary determination that probable

cause to arrest Awad existed. Awad’s insistence that their initial evaluation was

wrong does not inform this debate; it is irrelevant to our analysis. See Duke v. Dep’t

of Agric., 131 F.3d 1407, 1410 (10th Cir. 1997) (“[I]n applying the discretionary

function exception we do not consider whether the decision or nondecision was

negligent or wrong.”).

      This claim also satisfies the second prong of the Berkovitz test. The record

indicates the decision whether to investigate, as well as decisions concerning the

nature and extent of an investigation, are subject to economic, political, and social

policy considerations. Aplt. App. at 74, para. 15 (Williams Decl.). Among other

things, DEA agents must account for social policy considerations such as whether

and what type of weapons to use, the types of investigative techniques that may be

appropriate, the surveillance methods that would be most effective, and how to best

and most safely execute warrants. Id. They must economically balance their limited

resources among competing investigations and sometimes, as was the case here,

conduct joint investigations with other law enforcement agencies. See id. at 74-75,

                                           9
para. 16. These collaborative investigation arrangements, moreover, manifest

political policy considerations, particularly to ensure comity with other federal, state,

and local law enforcement agencies. See id. at 75, para. 17. Indeed, other courts

have recognized that these investigative decisions, which include the process of

verifying a suspect’s identity, “‘are rooted in policy considerations.’” Milligan v.

United States, 670 F.3d 686, 694 (6th Cir. 2012) (quoting Mesa, 123 F.3d at 1439).

Awad’s negligence claim is barred by the discretionary function exception.

      B. Intentional Torts—False Arrest & False Imprisonment

      “[A] plaintiff may not ‘recast a negligence tort as an intentional tort to take

advantage of the law enforcement exception to § 2680(h).’” Garling, 849 F.3d at

1298 (quoting Milligan, 670 F.3d at 696). “In determining whether [a plaintiff’s]

claims fall within the law enforcement proviso, we look to the substance of their

claims and not how they labeled them in their complaint.” Id. If a “complaint

attempts to bring intentional tort claims without alleging intentional tort facts,” the

law enforcement proviso will not apply. Id.

      Awad’s amended complaint is devoid of any facts suggesting intentionally

tortious conduct. His false arrest claim avers he was arrested “based on the false

identification of [him] as the individual who had distributed a controlled substance.”

Aplt. App. at 22-23, para. 94. Similarly, his false imprisonment claim alleges he was

incarcerated “for 173 consecutive days . . . based on [the] false identification.” Id. at

23, para. 101. Both claims are predicated on the DEA agents’ misidentification of

him as the seller in the video. But there are no allegations the DEA agents

                                           10
intentionally misidentified him. Nor are there any allegations they arrested or

incarcerated him knowing he was not the seller. Although Awad summarily alleges

the government confined him “knowing it had no lawful authority to do so,” id. at 24,

para. 104, the only factual support for this allegation is the misidentification. As

with the negligence claim, the amended complaint merely suggests (without the

benefit of specific factual allegations) the arrest and incarceration were the product of

unintentional, albeit wrongful, conduct during the investigation; it alleges the

government had a duty of care to identify the correct suspect and not arrest and

incarcerate Awad based on a mistaken (which he conveniently labels as “false”)

identification. These allegations predicate liability on negligence or, at most,

recklessness, but not intentional conduct. See Garling, 849 F.3d at 1298. The law

enforcement proviso does not apply to these false arrest and false imprisonment

claims.

      Moreover, the discretionary function exception bars these claims because they

are based solely on the DEA agents’ alleged negligence in conducting their

investigation and identifying Awad as the seller. We have already discussed the

discretionary nature of that process and the policy considerations attending it.

Awad’s attempt to recast his negligence allegations in intentional-tort terms is

unavailing. Consequently, the district court lacked jurisdiction over the false arrest

and false imprisonment claims.5


      5
        Awad’s failure to allege intentionally tortious conduct obviates any need to
consider the interaction between § 2680(a) and § 2680(h). See Garling, 849 F.3d at
                                           11
                                           IV

      Awad’s negligence claim is barred by the discretionary function exception to

the FTCA’s waiver of sovereign immunity. Although Awad also asserts nominal

claims for false arrest and false imprisonment, the substance of his allegations do not

reflect intentionally tortious conduct and, as a consequence, they do not fall within

the law enforcement proviso and are barred by the discretionary function exception.

For want of jurisdiction, the district court properly dismissed the suit.

      The district court’s judgment is affirmed.

                                                       Entered for the Court


                                                       Terrence L. O’Brien
                                                       Circuit Judge




1298 n.5 (recognizing circuit split regarding whether intentional tort claims brought
under § 2680(h) must also avoid the discretionary function exception of § 2680(a) but
declining to consider the issue because the plaintiff failed to allege intentional tort
facts); see also id. at 1298 (holding that claims nominally labeled as intentional torts,
including “false arrest” and “false imprisonment,” stemmed from allegedly negligent
or reckless investigation and raid and, therefore, were barred by the discretionary
function exception).
                                           12
