          United States Court of Appeals
                     For the First Circuit


No. 16-2276

                      AIDA GORDO-GONZÁLEZ,

                      Plaintiff, Appellant,

                               v.

                    UNITED STATES OF AMERICA,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. García-Gregory, U.S. District Judge]


                             Before

                    Barron, Selya and Lipez,
                         Circuit Judges.


     José R. Olmo-Rodríguez on brief for appellant.
     Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Mainon A. Schwartz, Assistant United
States Attorney, on brief for appellee.



                         October 3, 2017
              SELYA, Circuit Judge.             Plaintiff-appellant Aida Gordo-

González asserts that her then-husband, an agent of the Federal

Bureau    of     Investigation         (FBI),     used    surveillance          equipment

belonging       to   his    employer    to    keep   tabs      on    her    during    their

marriage.       Employing this assertion as a fulcrum, she sued the

United States under the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 1346(b), 2671-2680.           She alleged that the FBI had negligently

supervised her then-husband's use of its surveillance equipment,

thus enabling his invasion of her privacy.

              In a thoughtful rescript, the district court dismissed

the suit for want of subject-matter jurisdiction.                          Gordo-González

v.     United    States,       No.     15-cv-1602      (D.P.R.       July     22,     2016)

(unpublished).         After careful consideration, we agree that the

FTCA's discretionary function exception applies and, therefore,

that    the     government      has    not    waived     its    sovereign       immunity.

Accordingly, we affirm.

              We draw the facts from the plaintiff's complaint.                        See

Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003).

Sometime during the marriage between the plaintiff and her former

husband (an FBI agent), the plaintiff discovered that he had used

FBI     equipment,         including    GPS     devices        and    video     recording

paraphernalia, to monitor her whereabouts and activities.                           Shortly

after making this disturbing discovery, she instituted divorce

proceedings.


                                          - 2 -
            Once divorced, the plaintiff sued the United States

under the FTCA.      Her barebones complaint alleged that her ex-

husband had improperly used equipment belonging to the FBI and

that his superiors were negligent in failing to supervise him

adequately, thus allowing him to engage in the inappropriate

surveillance.1    The government moved to dismiss the complaint for,

inter alia, lack of subject-matter jurisdiction.        See Fed. R. Civ.

P. 12(b)(1).     The district court granted the motion.       See Gordo-

González, slip op. at 5.    This timely appeal followed.

            Where, as here, a dismissal for want of jurisdiction is

based solely on the complaint, we accept "the well-pleaded factual

averments     contained   therein     and   indulg[e]   all   reasonable

inferences in the [plaintiff's] favor."       Muñiz-Rivera, 326 F.3d at

11.   In that posture, this court affords de novo review to the

district court's order of dismissal.        See Limone v. United States,

579 F.3d 79, 101 (1st Cir. 2009).

            Here, however, a special gloss applies.      It is a bedrock

rule that a party seeking to invoke the jurisdiction of a federal

court must bear the burden of demonstrating the existence of such

jurisdiction.    See Murphy v. United States, 45 F.3d 520, 522 (1st

Cir. 1995).      "The pleading standard for satisfying the factual


      1The plaintiff has acknowledged that the government is not
vicariously liable for her former husband's conduct outside the
scope of his employment. Consequently, that issue is not before
us.


                                    - 3 -
predicates for proving jurisdiction is the same as applies under

Rule 12(b)(6) — that is, the plaintiff[] must 'state a claim to

relief that is plausible on its face.'"     Labor Relations Div. of

Constr. Indus. of Mass., Inc. v. Healey, 844 F.3d 318, 326-27 (1st

Cir. 2016) (quoting Román-Oliveras v. P.R. Elec. Power Auth., 655

F.3d 43, 45 n.3, 49 (1st Cir. 2011)).       As a result, an order

granting a motion to dismiss at the pleading stage is appropriate

only when the facts adumbrated in the plaintiff's complaint, taken

at face value, fail to bring the case within the court's subject-

matter jurisdiction.    See Muñiz-Rivera, 326 F.3d at 11.

          In applying this standard in the case at hand, sovereign

immunity looms large.   "It is beyond cavil that, as the sovereign,

the United States is immune from suit without its consent."

Muirhead v. Mecham, 427 F.3d 14, 17 (1st Cir. 2005).     Of course,

the FTCA is one instance of such consent; it waives the sovereign

immunity of the United States with respect to certain torts

committed by federal employees acting within the scope of their

employment.   See Bolduc v. United States, 402 F.3d 50, 55 (1st

Cir. 2005).    At the same time, the FTCA gives federal courts

jurisdiction over such claims.    See id.

          Even so, the FTCA is not a silver bullet for would-be

plaintiffs.   "As with all waivers of sovereign immunity," the FTCA

must be strictly construed in favor of the government.      Id. at 56

(citing United States v. Horn, 29 F.3d 754, 762 (1st Cir. 1994)).


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Moreover, this particular waiver is subject to a gallimaufry of

exceptions. See 28 U.S.C. § 2680(a)-(n). Accordingly, a complaint

can survive a motion to dismiss only if it contains sufficient

facts to demonstrate that the FTCA applies to the claims asserted

and that none of the FTCA's manifold exceptions is apposite.

           In   this    instance,      the   district   court    deemed   the

discretionary function exception, see 28 U.S.C. § 2680(a), to be

dispositive. We begin our analysis there. Under the discretionary

function exception, the United States does not waive sovereign

immunity for any tort that arises from "the exercise or performance

or the failure to exercise or perform a discretionary function or

duty . . . whether or not the discretion involved be abused."              Id.

Courts have used a familiar analytic framework in determining

whether   Congress     intended   to   shield   particular      conduct   from

liability under this exception.          See, e.g., Fothergill v. United

States, 566 F.3d 248, 252 (1st Cir. 2009).              An inquiring court

must first identify the conduct giving rise to the claim asserted

and then determine whether that conduct can fairly be characterized

as discretionary. See id.2 Once this hurdle is cleared, it remains

for the court to determine whether the exercise of the discerned




     2  This taxonomy excludes actions prohibited by federal
statutes, regulations, or policies.        See Berkovitz ex rel.
Berkovitz v. United States, 486 U.S. 531, 535-36 (1988). Virtually
by   definition,    such   actions   cannot   be    classified  as
"discretionary."


                                    - 5 -
discretion "is susceptible to policy-related judgments."                        Bolduc,

402 F.3d at 60; see Irving v. United States, 162 F.3d 154, 162

(1st Cir. 1998).       In fine, section 2680(a) will strip a court of

subject-matter jurisdiction only if the challenged conduct is both

discretionary and policy-driven.           See Bolduc, 402 F.3d at 60.

            Against    this    backdrop,     we    turn    to    the       plaintiff's

complaint.     The     plaintiff    submits       that    paragraph        16   of   the

complaint identifies the challenged governmental conduct.                            That

paragraph states: "The employees of the US in charge of supervising

[the plaintiff's ex-husband], and the use that he gave to the

special equipment provided to him, were negligent by failing to

supervise    him      adequately,    thereby        allowing         him     to      make

inappropriate use of said equipment."               In short, the challenged

conduct is the FBI's negligent failure to supervise the ex-

husband's inappropriate actions.

            The question reduces, then, to whether this challenged

conduct can fairly be said to be discretionary.                 See Berkovitz ex

rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988).                           The

plaintiff points to no federal statute, regulation, or policy that

dictates any specific supervisory actions that her ex-husband's

superiors were required to take.            Cf. Sheridan v. United States,

487 U.S. 392, 401 (1988) (concluding that where naval hospital had

specific    regulations       prohibiting    possession         of    firearms       and

requiring all personnel to report presence of firearms, United


                                     - 6 -
States could be held liable under FTCA when officers encountered

armed man and failed to report him).

           To be sure, in her opposition to the government's motion

to dismiss, the plaintiff did cite to a regulation, namely, 5

C.F.R. § 2635.704(a).   This regulation imposes a general duty on

all federal employees to refrain from using government property

(and not to allow others to use government property) for any

unauthorized purpose.    Although this regulation does "intimate

that [agency officials] are under an obligation" not to countenance

unauthorized use of FBI equipment by subordinates, it does not

purport to "direct the manner in which the supervision is to be

carried   out."   Muñiz-Rivera,   326   F.3d   at   16.   Nor   does   it

necessitate the taking of any specific action that the plaintiff

plausibly might contend would have prevented her ex-husband's

misuse of FBI equipment.     The bottom line, then, is that the

plaintiff has identified no law, regulation, or other requirement

that bears upon how those who were managing the agency should have

supervised her ex-husband.   Nor has the plaintiff identified any

law, regulation, or other requirement that somehow tied the FBI's

hands in any relevant respect.3   See Fothergill, 566 F.3d at 253.


     3 We note that the plaintiff sought leave to undertake
discovery in an effort to identify such a statute or rule.
Litigants, though, are not entitled to use pretrial discovery to
find out if they have a cause of action. See Mills v. Maine, 118
F.3d 37, 50-51 (1st Cir. 1997). Here, moreover, the information
that the plaintiff sought was primarily a matter of public record.


                               - 7 -
It follows inexorably, as night follows day, that the challenged

conduct is discretionary.

          This      brings    us    to     the    final   step   of   the    inquiry:

determining whether the discretion enjoyed by FBI hierarchs with

respect to the supervision of agents "is of the type and kind that

Congress sought to safeguard through the discretionary function

exception."    Fothergill, 566 F.3d at 253 (citing United States v.

Gaubert, 499 U.S. 315, 322-23 (1991)).                      By its very nature,

supervision    is    an      ad     hoc    exercise,        sensitive   to     policy

considerations,      the     type    of     work    being    performed,      and   the

experience and training of those performing that work.                      It almost

always demands flexibility.               See Attallah v. United States, 955

F.2d 776, 784 (1st Cir. 1992) (concluding that "how, and to what

extent the [agency] supervises its employees certainly involves a

degree of discretion and policy considerations of the kind that

Congress sought to protect through the discretionary function

exception").   So it is here.

          This view is consistent with our earlier conclusion that

"the development and management of a supervisory model is a matter

of agency discretion" and involves "an unrestrained balancing of



A decision whether to grant or deny discovery before deciding
jurisdictional issues rests within the district court's wide
discretion. See Dynamic Image Techs., Inc. v. United States, 221
F.3d 34, 38 (1st Cir. 2000). We discern no abuse of that wide
discretion with regard to the district court's denial of the
plaintiff's request for discovery.


                                          - 8 -
incommensurable values."          Bolduc, 402 F.3d at 60-61 (internal

quotation    marks    omitted).      Inherent   in   the   performance    of

supervisory tasks are considerations of policy, a balancing of

competing interests, and careful decisionmaking regarding the

level of micro-management of one's subordinates.              Given these

realities, we have no hesitancy in holding that the conduct at

issue here falls squarely within the maw of the discretionary

function exception.     Therefore, the FTCA does not effect a waiver

of   the    federal     government's    sovereign     immunity    in     the

circumstances of this case.

            Let us be perfectly clear.          There may be times when

supervisory conduct is non-discretionary, such that the FTCA's

waiver of sovereign immunity is unimpaired.          See, e.g., Sheridan,

487 U.S. at 401.      But without pleading specific facts sufficient

to show that the challenged conduct did not involve a discretionary

function, the plaintiff cannot lay claim to the FTCA's waiver of

sovereign immunity.

            We need go no further. For the reasons elucidated above,

the district court's order of dismissal for want of subject-matter

jurisdiction is



Affirmed.




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