                REVISED MARCH 11, 2009
       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                Fifth Circuit

                                                              FILED
                                                          January 22, 2009
                             No. 07-31066              Charles R. Fulbruge III
                                                               Clerk

HERBERT FREEMAN, JR, Individually and in his capacity as representative
of the estate of Ethel Freeman

                                      Plaintiff - Appellant
v.

UNITED STATES OF AMERICA

                                      Defendant - Appellee

BARBARA ELEBY LEE; BRENDA BISSANT; GLENDA ELEBY; GRIFFIN
ELEBY, JR; ROSALIE BROOKS; DOROTHY BEAL; EARLINE COLEMAN;
ETHEL JACKSON; NANCY ELEBY

                                      Plaintiffs - Appellants
v.

UNITED STATES OF AMERICA

                                      Defendant - Appellee

FRANCES LODRIGUSS

                                      Plaintiff - Appellant
v.

UNITED STATES OF AMERICA

                                      Defendant - Appellee
                                 No. 07-31066

BARBARA ELEBY LEE; BRENDA BISSANT; GLENDA ELEBY; GRIFFIN
ELEBY, JR; ROSALIE BROOKS; DOROTHY BEAL; RODNEY JACKSON,
for the Estate of Ethel Jackson; NANCY ELEBY

                                           Plaintiff - Appellants
v.

UNITED STATES OF AMERICA

                                           Defendant - Appellee



                 Appeal from the United States District Court
              for the Eastern District of Louisiana, New Orleans
                 Nos. 2:06-CV-4846, 06-CV-5689, 06-CV-5696,
                    O7-CV-2243, O7-CV-2244, 07-CV-2245


Before KING, DEMOSS, and PRADO, Circuit Judges.
KING, Circuit Judge:
      We are asked whether the discretionary function exception of the Robert
T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5148, bars
a suit based on the federal government’s handling of relief efforts in the
aftermath of Hurricane Katrina. Plaintiffs allege that the federal government’s
violations of various provisions of the National Response Plan render the United
States liable under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671–2680,
for the deaths of Ethel Freeman, John J. DeLuca, and Clementine Eleby. The
district court held that the conduct at issue was vested in the government’s
discretion. It therefore dismissed plaintiffs’ claims for lack of subject matter
jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure because
the United States had not waived sovereign immunity for its discretionary acts.
We affirm.




                                       2
                                 No. 07-31066

 I. FACTUAL, PROCEDURAL, AND REGULATORY BACKGROUND
A.    Factual and Regulatory Background
      Plaintiffs are the relatives or representatives of Ethel Freeman, John J.
DeLuca, and Clementine Eleby (“decedents”). Because of impaired mobility,
decedents stayed in New Orleans when Hurricane Katrina made landfall near
the city on August 29, 2005. After three distinct travails, Ms. Freeman, Mr.
DeLuca, and Ms. Eleby died in the subsequent days. The nation witnessed these
tragedies unfold many times over.
      Ms. Freeman died on Wednesday, September 1, 2005, at the New Orleans
Convention Center. She was chronically ill and decided to stay in her home
when Hurricane Katrina came ashore. After waters from Lake Pontchartrain
breached the Industrial Canal, 17th Street flood walls, and London Avenue flood
walls, water flooded her home to a depth of several feet. On August 31, 2005,
Ms. Freeman’s son, Herbert Freeman, Jr. (“Herbert”), borrowed a boat from a
friend, placed Ms. Freeman in her wheelchair, and then moved her into the boat.
Herbert then shuttled Ms. Freeman to higher ground. Once the Freemans
reached dry land, New Orleans police officers directed them to the Convention
Center. At the Convention Center, Herbert notified police officers that Ms.
Freeman needed medical attention. The officers told him a bus would come to
evacuate Ms. Freeman. Squalid conditions existed at the Convention Center,
and it was not equipped with food, water, medical assistance, triage, or
transportation. Ms. Freeman died the day after she arrived there. An image of
her blanket-covered body was broadcast on national television.
      Ms. Eleby also died at the Convention Center on September 1, 2005.
Because she was bedridden, a physician advised her to evacuate to a local
hospital as the hurricane approached. Ms. Eleby’s caretaker, Barbara Eleby
Lee, contacted officials to inquire about taking Ms. Eleby to the Superdome, but
she was informed that no beds would be provided. There was also a dearth of


                                       3
                                 No. 07-31066

available beds at local hospitals. As a result, Ms. Eleby stayed at her residence
with Barbara Eleby Lee and other members of her family. The storm trapped
them in their home. On August 30, 2005, first responders arrived by boat.
Rescuers in the first boat to approach offered to take Ms. Eleby’s family if they
left her behind; the potential rescuers did not want to take her because she was
paralyzed and bedridden.      Her family refused, and when a second boat
approached, they placed her in it first. That boat delivered them to Chef
Menteur Highway, where they spent the night without food, water, shelter, or
medical care. The next day, Ms. Eleby’s family carried her to an interstate
highway, where rescuers in a large truck picked them up and transported them
to the Convention Center. At the Convention Center, Ms. Eleby experienced the
same squalid conditions as did Ms. Freeman. As noted above, the Convention
Center was not equipped with food, water, medical assistance, triage, or
transportation. Ms. Eleby died at the Convention Center the following day.
      Mr. DeLuca died at Louis Armstrong International Airport on September
3, 2005.   Before the storm, Mr. DeLuca resided in the Nazareth Inn, an
independent and assisted living facility in eastern New Orleans.           After
Hurricane Katrina came ashore, flood waters surrounded and flooded the
facility. A helicopter crew rescued Mr. DeLuca and delivered him to the
Pontchartrain Center in Kenner, Louisiana. When the Pontchartrain Center
also flooded, another helicopter transferred him to the interchange of Interstate
10 and Causeway Boulevard (the “Cloverleaf”). He arrived there on August 30,
2005. The Cloverleaf was not equipped with food, water, shelter, medical
assistance, triage, or transportation. Although evacuation buses began to arrive
on August 31, 2005, Mr. DeLuca was not evacuated. Still on the Cloverleaf on
September 2, 2005, Mr. DeLuca collapsed from stress, heat exhaustion, hunger,
and dehydration. A helicopter airlifted him to the airport. Mr. DeLuca died
there the next day.


                                       4
                                     No. 07-31066

      Plaintiffs in this case allege that the federal government caused or
contributed to these deaths by negligently failing to perform nondiscretionary
duties arising under the National Response Plan (the “NRP”).1 Pursuant to
authority granted in part by the Robert T. Stafford Disaster Relief and
Emergency Assistance Act, 42 U.S.C. §§ 5121–5208, the President directed the
Secretary of the Department of Homeland Security (“DHS”) to develop the NRP.
See Homeland Security Presidential Directive/HSPD-5, 2003 WL 604606, at *1
(Feb. 28, 2003). The directive tasked DHS with promulgating the NRP in order
to “integrate Federal Government domestic prevention, preparedness, response,
and recovery plans into one all-discipline, all hazards plan” and “provide the
structure and mechanisms for national level policy and operational direction for
Federal support to State and local incident managers and for exercising direct
Federal authorities and responsibilities.” Id. at *4.
      DHS Secretary Michael Chertoff released the NRP in December 2004. The
NRP “establishe[d] a single, comprehensive framework for the management of
domestic incidents.” Dep’t of Homeland Sec., Nat’l Response Plan iii (2004). It
was organized into a Base Plan supplemented by annexes categorized into three
groups:    Emergency Support Function (“ESF”) (corresponding to types of
operational responses); Support (corresponding to organizational activities); and
Incident (corresponding to types of emergencies that require “specialized,
incident-specific implementation”). Id. at xii.
      The Catastrophic Incident Annex (the “Annex”), a Support annex,
contained the provisions of the NRP at issue in this case. The Annex was
“applicable for all hazards.” Id. at INC-i. It “establishe[d] the context and
overarching strategy for implementing and coordinating an accelerated,


      1
         After the events at issue in this case, DHS replaced the NRP with the National
Response Framework. Because the NRP in effect at the time of Hurricane Katrina is no longer
available on the government’s web sites, we cite the record version.

                                            5
                                  No. 07-31066

proactive national response to a catastrophic incident,” defined as “any natural
or manmade incident, including terrorism, that results in extraordinary levels
of mass casualties, damage, or disruption severely affecting the population,
infrastructure, environment, economy, national morale, and/or government
functions.” Id. at CAT-1. The Annex also noted that “[a] more detailed and
operationally specific NRP Catastrophic Incident Supplement (NRP-CIS) that
is designated ‘For Official Use Only’ will be approved and published
independently of the NRP Base Plan and annexes.” Id. at CAT-1; see also id. at
CAT-5. The Base Plan required the DHS Secretary to “[i]dentify appropriate
assets and establish agreements and procedures for their rapid deployment and
employment in accordance with the NRP Catastrophic Incident Supplement”
within 120 days of issuance of the NRP. Id. at ix. Plaintiffs allege that
Secretary Chertoff completed this task on September 6, 2005.
      The Annex described certain situational difficulties that arise in
catastrophic incidents.    For example, during catastrophes, “[t]here is a
significant need for public health and medical support, including mental health
services.” Id. at CAT-2. Therefore, “[m]edical support is required not only at
medical facilities, but at casualty evacuation points, evacuee and refugee points
and shelters, and at other locations to support field operations.” Id. The Annex
similarly documented “Planning Assumptions.” One such assumption stated:
“Federal support must be provided in a timely manner to save lives, prevent
human suffering, and mitigate severe damage. This may require mobilizing and
deploying assets before they are requested via normal NRP protocols.” Id. at
CAT-3. The Annex also listed as a “guiding principle” that “[n]otification and
full coordination with States occur, but the coordination process should not delay
or impede the rapid mobilization and deployment of critical Federal resources.”
Id. at CAT-4.



                                        6
                                        No. 07-31066

       Within that context, the Annex enumerated tasks that the government
was to undertake in a catastrophic incident. For example: “Incident-specific
resources and capabilities (e.g., medical teams, search and rescue teams,
equipment, transportable shelters, preventive and therapeutic pharmaceutical
caches, etc.) are activated and prepare for deployment to a Federal mobilization
center or staging area near the incident site.” Id. DHS, in particular, assumed
certain responsibilities once NRP processes were implemented,2 while other
agencies were to undertake relevant emergency support functions.3 The NRP
and, specifically, the Annex thus formed the backbone of the federal
government’s response to catastrophic incidents like hurricanes.4


       2
         DHS was to:
               Activate and deploy (or prepare to deploy) DHS-managed teams,
        equipment caches, and other resources in accordance with the NRP-CIS;
               Identify, prepare, and operationalize facilities critical to supporting the
        movement and reception of deploying Federal resources;
               Activate national-level facilities and capabilities in accordance with the
        NRP-CIS and standard NRP protocols;
               Establish and maintain communications with incident command
        authorities to ensure a common and current operating picture regarding critical
        resource requirements. As specific resource requirements are identified, advise
        the Department of Transportation to reprioritize and adjust accordingly the
        schedule of execution for resource flow in the NRP-CIS; and
               Make every attempt to establish contact with the impacted State(s) to
        coordinate the employment of Federal resources in support of the State.
Id. at CAT-5.
       3
         Other agencies also assumed responsibilities:
               Activate and deploy (or prepare to deploy) agency- or ESF-managed
        teams, equipment caches, and other resources in accordance with the NRP-CIS;
               Commence ESF responsibilities as appropriate;
               Commence assessments of the probable consequences of the incident and
        projected resource requirements; and
               Commence development of shorter and longer term response and
        recovery strategies.
Id. at CAT-5–CAT-6.
       4
         The NRP operated in conjunction with regulations promulgated pursuant to the
Stafford Act. Those regulations provide that the Federal Emergency Management Agency
(“FEMA”) may issue mission assignments to other government agencies during a declared
disaster. Section 206.2(a)(18) of the Code of Federal Regulations defines a mission assignment

                                               7
                                        No. 07-31066

       As we all witnessed and as has been amply documented in the reports of
various congressional committees, despite the existence of the NRP and other
Stafford Act regulations, the federal government was unprepared for Hurricane
Katrina, and its response was universally criticized as inadequate, unorganized,
and flawed. See generally, e.g., H.R. Rep. No. 109-377 (2006); S. Rep. No. 109-
322 (2006). Among the many shortcomings, FEMA officials displayed a lack of
situational awareness that led to organizational inaction, and critical elements
of the NRP were executed late, ineffectively, or not at all. See H.R. Rep. No.
109-377, at 2–5. More specifically, the record reveals that federal agencies did
not initiate decisive action to assist evacuees at the Convention Center until
September 2, 2005, and contains no evidence of any mission to aid evacuees at
the Cloverleaf.
B.     Procedural Background
       Plaintiffs filed their first series of complaints in 2006 (the “2006
complaints”). They alleged claims against the United States, various federal



as a “[w]ork order issued to a Federal agency by [FEMA’s] Regional Director, Associate
Director, or Director, directing completion by that agency of a specified task and citing funding,
other managerial controls, and guidance.” 44 C.F.R. § 206.2(a)(18); see also 44 C.F.R. § 206.7
(“All directives, known as mission assignments, to other Federal agencies shall be in writing,
or shall be confirmed in writing if made orally, and shall identify the specific task to be
performed and the requirements or criteria to be followed.”). Thus, certain specified FEMA
officials may use mission assignments to “direct any Federal agency to utilize its authorities
and the resources granted to it under Federal law . . . to support emergency efforts by State
and local governments to save lives; protect property, public health and safety; and lessen or
avert the threat of a catastrophe,” or to “direct any Federal agency to provide emergency
assistance necessary to save lives and to protect property, public health, and safety by: [e.g.,]
. . . [d]istributing medicine, food, and other consumable supplies.” 44 C.F.R. § 206.5. FEMA
uses mission assignments to allocate resources, coordinate agency tasks, and ensure
reimbursement for expenses. See Dep’t of Homeland Sec., Nat’l Response Plan at ESF #5-2.
When an agency is tasked through a mission assignment, however, it may ask another agency
to provide support for a sub-task, see id. at FIN-4, or may issue a “mission assignment task
order,” which is a “specific instruction given to a Federal agency under a mission assignment
directing it to perform work of certain quantity or in a certain area under that mission
assignment,” see Fed. Emergency Mgmt. Agency, Recovery Policy 9523.9: 100% Funding for
Direct Federal Assistance and Grant Assistance, at VII(A)(2) (June 9, 2006).

                                                8
                                     No. 07-31066

agencies, and certain federal officers in their individual and official capacities.
Herbert brought suit alleging wrongful death and survival actions against the
United States, DHS, and Secretary Chertoff for Ms. Freeman’s death. He
amended his complaint to name Secretary Chertoff, Secretary of Health and
Human Services Michael Leavitt, and Secretary of Defense Donald Rumsfeld in
their individual and official capacities. Barbara Lee, Brenda Bissant, Glenda
Eleby, Griffin Eleby, Jr., Rosalie Brooks, Dorothy Beal, Earline Coleman, Ethel
Jackson, and Nancy Eleby filed a complaint alleging wrongful death and
survival actions against the United States and Secretary Chertoff, Secretary
Leavitt, Secretary Rumsfeld, and FEMA Director Michael Brown, in their
individual and official capacities for Ms. Eleby’s death.             Finally, Frances
Lodriguss brought suit alleging wrongful death and survival actions against the
United States, and Secretary Chertoff, Secretary Leavitt, Secretary Rumsfeld,
and Director Brown, in their individual and official capacities, for Mr. DeLuca’s
death. The district court consolidated the three cases.
      Plaintiffs brought their claims under the Stafford Act, 42 U.S.C.
§§ 5121–5208, for failure to properly follow the NRP. Additionally, Herbert
claimed that defendants’ actions gave rise to liability under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671–2680. Defendants responded by
filing a motion to dismiss the claims against the United States, the federal
agencies, and all individuals in their official capacities for lack of subject matter
jurisdiction. Citing both the discretionary function exception of the Stafford Act,
42 U.S.C. § 5148, and the discretionary function exception of the FTCA, 28
U.S.C. § 2680(a), the government argued that the United States has not waived
its sovereign immunity for discretionary conduct and that the NRP did not
create any nondiscretionary duties.5 Plaintiffs responded to the motion by


      5
        The government also argued that plaintiffs, with the exception of Mr. Freeman, had
not exhausted their administrative remedies.

                                            9
                                  No. 07-31066

arguing that: (1) it was premature because they were entitled to discovery to
determine whether defendants breached non-discretionary duties; and
(2) defendants violated non-discretionary NRP directives in the provision of
disaster relief assistance.
      On April 24, 2007, while the motion to dismiss was pending, plaintiffs filed
a new round of complaints (the “2007 complaints”). The 2007 complaints raised
similar facts as the 2006 complaints. The 2007 complaints, however, alleged tort
claims under the FTCA only against the United States and claimed exhaustion
of available administrative remedies.
      Less than a week later, the district court granted defendants’ motion to
dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction on the grounds
of sovereign immunity. The court, assuming that the Stafford Act provided a
limited waiver of sovereign immunity, concluded that the Stafford Act’s
discretionary function exception, § 5148, should be analyzed in the same manner
as the FTCA’s discretionary function exception, § 2680(a); therefore, it applied
the United States Supreme Court’s two-part test for determining the
applicability of the FTCA’s discretionary function exception, see United States
v. Gaubert, 499 U.S. 315, 322–23 (1991); Berkovitz v. United States, 486 U.S.
531, 536–37 (1988). The district court concluded that the first prong was
satisfied because plaintiffs “point[ed] to no specific, mandatory directive found
within the statutory scheme of the Stafford Act or its accompanying federal
regulations that [d]efendants are alleged to have ignored in the aftermath of
Hurricane Katrina.” See Freeman v. U.S. Dep’t of Homeland Sec., Nos. 06-4846,
06-5689 & 06-5696, 2007 WL 1296206, *6 (E.D. La. Apr. 30, 2007) (emphasis in
original). The district court rejected plaintiffs’ attempt to rely on the NRP as the
basis for the mandatory directives because “the NRP does not prescribe a specific
course of conduct for federal employees to follow.” Id. at *7. Next, the district
court held that the second prong of the two-part test was satisfied because the

                                        10
                                       No. 07-31066

government’s “allocation of resources in the aftermath of Katrina not only
includes the element of judgment or choice . . . but that element of choice is
clearly one grounded in social, economic, and public policy.” Id.
       Finally, the district court denied plaintiffs’ request for pre-dismissal
discovery because “the fact-based discovery that [p]laintiffs are anxious to obtain
only comes into play once they identify the specific directive that [d]efendants
have ignored.”       Id.   The court reasoned that discovery would not “assist
[plaintiffs] in meeting this crucial threshold requirement” because any
mandatory directive would necessarily be in the “public realm.” Id. Thus, the
district court dismissed the claims against the United States, its agencies, and
federal officers in their official (but not individual) capacities, for lack of subject
matter jurisdiction under Rule 12(b)(1). Id. at *8.6
       Subsequently, the district court consolidated plaintiffs’ 2007 complaints
with the remainder of the 2006 complaints, which remained pending against
individual defendants in their individual capacities. Director Brown then moved
to dismiss the claims against him, and the government moved to dismiss the
FTCA claims for the reasons specified in the district court’s prior order of
dismissal.
       Plaintiffs undertook several actions in response. First, they sought to
amend their complaints to allege that the United States instituted an “aid
blockade” by intentionally refusing to send aid to the Convention Center and the
Cloverleaf. Second, plaintiffs opposed both motions to dismiss by reasserting
their opposition to dismissal on the grounds that the NRP created mandatory
directives and that dismissal was premature because discovery was necessary
to identify nondiscretionary duties. The district court held a hearing on the


       6
         On an unopposed motion from the government, the district court substituted nunc pro
tunc the United States for the federal agencies and individual defendants for all claims arising
under the FTCA that were dismissed by the district court.

                                              11
                                       No. 07-31066

motions on October 3, 2007. The court granted plaintiffs’ motions to amend.
Thereafter, however, it granted Director Brown’s and the government’s motions
to dismiss. In its brief order, the court adopted the reasons given in its order of
April 30, 2007.7 Plaintiffs filed a timely notice of appeal. They appeal only the
district court’s dismissal of their FTCA claims against the United States. We
have jurisdiction under 28 U.S.C. § 1291.
                                   II. DISCUSSION
A.     Discretionary Function Exception to the Stafford Act
       We must determine whether the district court properly dismissed the case
under Rule 12(b)(1) for lack of subject matter jurisdiction on the ground that the
United States has not waived sovereign immunity for its decisions related to its
provision of disaster relief services under the NRP. “We review a district court’s
dismissal for lack of subject matter jurisdiction de novo.” Stiles v. GTE Sw., Inc.,
128 F.3d 904, 906 (5th Cir. 1997). “In our de novo review . . ., we apply the same
standard as does the district court . . . .” Wagstaff v. U.S. Dep’t of Educ., 509
F.3d 661, 663 (5th Cir. 2007) (internal quotation marks and citation omitted).
Under our traditional explication of the standard applied by the district court,
the district court “has the power to dismiss for lack of subject matter jurisdiction
on any one of three separate bases: (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.”
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Here, the district court
did not resolve any disputed facts, so we, as did the district court, “consider the
allegations in the plaintiff[s’] complaint as true.” Id. at 412. “[O]ur review is
limited to determining whether the district court’s application of the law is

       7
         Plaintiffs at various times filed notices under Rule 41 of the Federal Rules of Civil
Procedure dismissing from the lawsuit Secretary Chertoff, Secretary Rumsfield, and Secretary
Leavitt, in their individual capacities, because they had not been served and had not been
subject to either of the court’s orders of dismissal.

                                             12
                                   No. 07-31066

correct” and, to the extent its “decision [was] based on undisputed facts, whether
those facts are indeed undisputed.” Id. at 413. We then ask if dismissal was
appropriate. See Gaubert, 499 U.S. at 327 (“‘accept[ing] all of the factual
allegations in [the plaintiff’s] complaint as true’ and ask[ing] whether the
allegations state a claim sufficient to survive a motion to dismiss” (quoting
Berkovitz, 486 U.S. at 540)).
      “Plaintiff[s] bear[] the burden of showing Congress’s unequivocal waiver
of sovereign immunity.” St. Tammany Parish v. Fed. Emergency Mgmt. Agency,
No. 08-30070, slip op. at 11–12 (5th Cir. Jan. 22, 2009). “At the pleading stage,
plaintiff[s] must invoke the court’s jurisdiction by alleging a claim that is facially
outside of the discretionary function exception.” Id. at 12 & n.3 (citing Gaubert,
499 U.S. at 324–25).
      “The basic rule of federal sovereign immunity is that the United States
cannot be sued at all without the consent of Congress.” Block v. North Dakota
ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983); see also Williamson
v. U.S. Dep’t of Agric., 815 F.2d 368, 373 (5th Cir. 1987) (“The doctrine of
sovereign immunity is inherent in our constitutional structure and . . . renders
the United States [and] its departments . . . immune from suit except as the
United States has consented to be sued.”). Because “[s]overeign immunity is
jurisdictional in nature,” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994), Congress’s
“waiver of [it] must be unequivocally expressed in statutory text and will not be
implied,” Lane v. Pena, 518 U.S. 187, 192 (1996) (internal citation omitted); see
also Petterway v. Veterans Admin. Hosp., 495 F.2d 1223, 1225 n.3 (5th Cir. 1974)
(“It is well settled . . . that a waiver of sovereign immunity must be specific and
explicit and cannot be implied by construction of an ambiguous statute.”).
      Plaintiffs have alleged claims under the FTCA for failure to provide due
care in the provision of emergency aid pursuant to the NRP.              The FTCA
authorizes suits against the United States for damages arising from:

                                         13
                                         No. 07-31066

       injury or loss of property, or personal injury or death caused by the
       negligent or wrongful act or omission of any employee of the
       Government while acting within the scope of his office or
       employment, under 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). Thus, the FTCA waives sovereign immunity and permits
suits against the United States sounding in state tort for money damages. In re
Supreme Beef Processors, Inc., 468 F.3d 248, 252 (5th Cir. 2006). As long as
state tort law creates the relevant duty, the FTCA permits suit for violations of
federal statutes and regulations. See Johnson v. Sawyer, 47 F.3d 716, 728 (5th
Cir. 1995) (en banc) (“If the requisite relationship and duty exist, then the
statutory or regulatory violation may constitute or be evidence of negligence in
the performance of that state law duty.”).8                 The FTCA, however, excepts
discretionary functions and duties from this waiver of sovereign immunity. See
28 U.S.C. § 2680(a). The FTCA’s “discretionary function exception” provides that
the waiver of sovereign immunity in § 1346(b) does not apply to:
       Any 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. The “discretionary function exception is thus a form of retained sovereign
immunity.” In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 190 (2d
Cir. 2008).9


       8
          Because plaintiffs appeal the district court’s grant of defendant’s motion to dismiss for
lack of subject matter jurisdiction, we need not consider the merits of whether their claims give
rise to tort liability under Louisiana law.
       9
         It “‘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.’” Berkovitz, 486 U.S. at 536 (quoting United States v. S.A. Empresa
de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)). It is intended to
“assure protection for the Government against tort liability for errors in administration or in
the exercise of discretionary functions.” Dalehite v. United States, 346 U.S. 15, 26–27 (1953)

                                               14
                                  No. 07-31066

       The government promulgated the NRP under authority granted, in part,
by the Stafford Act. “Although the Stafford Act does not contain a waiver of
sovereign immunity, it does contain a discretionary function exception to
governmental liability nearly identical to the one contained in the FTCA.” St.
Tammany Parish, No. 08-30070, slip op. at 16 (internal citation omitted) (citing
Graham v. Fed. Emergency Mgmt. Agency, 149 F.3d 997, 1001 (9th Cir. 1998)).
The Stafford Act’s discretionary function exception provides that the United
States will not be liable for:
       any claim based upon the exercise or performance of or the failure
       to exercise or perform a discretionary function or duty on the part
       of a Federal agency or an employee of the Federal Government in
       carrying out the provisions of this chapter.
42 U.S.C. § 5148. “The Stafford Act’s discretionary function exception exists,
despite the lack of an express waiver of sovereign immunity, to protect the
government from liability for claims based on its discretionary conduct brought
pursuant to the FTCA, [the Administrative Procedures Act, 5 U.S.C. §§ 701 et
seq.], or other statutes of general applicability.” St. Tammany Parish, No. 08-
30070, slip op. at 16–17. “Nonetheless, this provision ‘preclude[s] judicial review
of all disaster relief claims based upon the discretionary actions of federal
employees.’” Id. at 17 (citing Rosas v. Brock, 826 F.2d 1004, 1008 (11th Cir.
1987)).
       The parties begin by disputing the meaning of the Stafford Act’s
discretionary function exception as it applies to the claims alleged in this case.
In a companion case in which we addressed the same issue, we held that
“‘discretionary function or duty’ has the same meaning in § 5148 as its does in
§ 2680(a).” St. Tammany Parish, No. 08-30070, slip op. at 19. We reached this
conclusion after reviewing the nearly identical texts of the two provisions and



(citation omitted).

                                        15
                                       No. 07-31066

the legislative history of the Stafford Act and after rejecting the government’s
counterarguments—which were the same arguments that the government
maintains in this case. See id. at 17–25; accord In re World Trade Ctr. Disaster
Site Litig., 521 F.3d at 188–89 (holding that the FTCA’s and Stafford Act’s
discretionary function exceptions “employ practically identical language: both
provide protection for the exercise or performance of or the failure to exercise or
perform a discretionary function or duty on the part of a [F]ederal agency or an
employee of the [Federal] Government.” (internal quotation marks and citations
omitted, alterations in original)). Thus, we may rely on precedent interpreting
the phrase “discretionary function or duty” under the FTCA’s discretionary
function exception to provide meaning to the Stafford Act’s discretionary
function exception in this case. See St. Tammany Parish, No. 08-30070, slip op.
at 25.10
B.     Duties under the NRP
       We now determine the applicability of § 5148 of the Stafford Act to this
case by turning to the well-established precedent defining discretionary conduct
under § 2680(a) of the FTCA. The Supreme Court has developed a two-part test
for determining whether the federal government’s conduct qualifies as a
discretionary function or duty under this exception. See Gaubert, 499 U.S. at
322–23 (citing Berkovitz, 486 U.S. at 536–37).
       First, the conduct must be a “matter of choice for the acting employee.”
Berkovitz, 486 U.S. at 536.             “The exception covers only acts that are
discretionary in nature, acts that ‘involv[e] an element of judgment or choice.’”



       10
         The FTCA’s and Stafford Act’s discretionary function provisions are not identical. For
example, § 2680(a) expressly precludes review “whether or not the discretion involved be
abused,” while § 5148 contains no such express provision. Here, however, we need not decide
the import of this difference in statutory language because plaintiffs have not argued that
government agencies or agents abused their discretion; instead, they have argued that they
lacked discretion.

                                              16
                                   No. 07-31066
Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536) (alteration in
original). Thus, “‘it is the nature of the conduct, rather than the status of the
actor’ that governs whether the exception applies.” Id. (quoting Varig Airlines,
467 U.S. at 813). If a statute, regulation, or policy leaves it to a federal agency
or employee to determine when and how to take action, the agency is not bound
to act in a particular manner and the exercise of its authority is discretionary.
See id. at 329. On the other hand, “[t]he requirement of judgment or choice is
not satisfied” and the discretionary function exception does not apply “if a
‘federal statute, regulation, or policy specifically prescribes a course of action for
an employee to follow,’ because ‘the employee has no rightful option but to
adhere to the directive.’” Id. at 322 (quoting Berkovitz, 486 U.S. at 536).
      Second, “even ‘assuming the challenged conduct involves an element of
judgment,’” we must still decide that the “‘judgment is of the kind that the
discretionary function exception was designed to shield.’” Id. at 322–23 (quoting
Berkovitz, 486 U.S. at 536); see also Varig Airlines, 467 U.S. at 813. “Because
the purpose of the exception 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,’ when properly
construed, the exception ‘protects only governmental actions and decisions based
on considerations of public policy.’” Gaubert, 499 U.S. at 323 (quoting Berkovitz,
486 U.S. at 537). With this understanding, however, “if a regulation allows the
employee discretion, the very existence of the regulation creates a strong
presumption that a discretionary act authorized by the regulation involves
consideration of the same policies which led to the promulgation of the
regulations.” Id. at 324.       “The focus of the inquiry is not on the agent’s
subjective intent in exercising the discretion conferred by statute or regulation,
but on the nature of the actions taken and on whether they are susceptible to
policy analysis.” Id. at 325.

                                         17
                                    No. 07-31066
      In this case, plaintiffs argue that the government failed to perform or was
negligent in its performance of the specific duties prescribed by the
NRP—namely, the provision of food, water, shelter, medical assistance, and
transport to the Convention Center and to the Cloverleaf. (See Pls.’ Br. 34 (“The
Convention Center and Cloverleaf certainly fall into the categories of places
where the federal government had an express duty to provide the support that
meant the difference between life and death for these three Plaintiffs.”)); see also
Gaubert, 499 U.S. at 324 (“[A]n agency may rely on internal guidelines rather
than on published regulations.”). The NRP directives that plaintiffs cite permit
agents to exercise judgment or choice that is subject to policy analysis. We
therefore hold that the government’s conduct under the NRP—even its failure
to provide food, water, shelter, medical assistance, and transport to the
Convention Center and to the Cloverleaf—qualifies under the Stafford Act’s
discretionary function exception.
      Under the first prong of the Berkovitz test, plaintiffs fail to identify any
specific, nondiscretionary function or duty that does not involve an element of
judgment or choice. To the contrary, plaintiffs cite a large number of NRP
provisions that contain generalized, precatory, or aspirational language that is
too general to prescribe a specific course of action for an agency or employee to
follow.
      Plaintiffs first allege that Secretary Chertoff failed to comply with the
NRP Base Plan’s requirement that within 120 days of the NRP’s issuance he
identify and establish procedures for the rapid deployment of appropriate assets.
See Dep’t of Homeland Sec., Nat’l Response Plan, at ix. According to plaintiffs,
Secretary Chertoff completed this duty on September 6, 2005, beyond the 120-
day window and after the events in this case.11 We conclude that, despite the


      11
        It is somewhat unclear whether plaintiffs allege Secretary Chertoff’s failure to
promulgate procedures pursuant to the NRP-CIS or failure to develop the NRP-CIS itself.

                                          18
                                  No. 07-31066
delay, this agency time line created no judicially enforceable duty on the part of
Secretary Chertoff. Cf. Action on Smoking & Health (ASH) v. Dep’t of Labor, 100
F.3d 991, 993–94 (D.C. Cir. 1996) (treating more formalized statutory and
regulatory deadlines as nonmandatory, aspirational goals that do not
circumscribe the discretion of the agency to delay formation of policy in good
faith).
      Plaintiffs next cite numerous provisions of the Annex as prescribing
specific action. These provisions can be grouped into two categories: (1) plan
context, and (2) agency responsibilities.      Neither category gave rise to a
nondiscretionary duty. With respect to the Annex’s context, the “Situation”
section noted that in devastating natural disasters, “[m]edical support is
required not only at medical facilities, but at casualty evacuation points, evacuee
and refugee points and shelters, and at other locations to support field
operations.” Dep’t of Homeland Sec., Nat’l Response Plan, at CAT-2. The
ostensibly mandatory language “is required,” when read in light of the broad
goals of the Annex—which “establishe[d] the context and overarching
strategy”—did nothing more than explain the needs that arise in an emergency.
Satisfaction of those needs was a broad, implied goal allowing for significant
choice in its implementation by federal agencies. This broad goal, therefore,
satisfies the first prong of the discretionary function test. See Shansky v. United
States, 164 F.3d 688, 691 (1st Cir. 1999) (A “broadly worded expression of a
general policy goal contained in the [agency’s] operating manual . . . suggests
that the [agency] and its functionaries will have to make discretionary
judgments about how to apply concretely the aspirational goal embedded in the
statement.”); Tippett v. United States, 108 F.3d 1194, 1197 (10th Cir. 1997)
(“[T]he general goal of protecting human life in the nation’s national parks is not
the kind of specific mandatory directive that operated to divest [the federal
agent] of discretion in the situation he faced.”); Valdez v. United States, 56 F.3d

                                        19
                                       No. 07-31066
1177, 1180 (9th Cir. 1995) (“While the said policy guidelines certainly outline
general policy goals regarding visitor safety, the means by which [agency]
employees meet these goals necessarily involves an exercise of discretion.”);
Autery v. United States, 992 F.2d 1523, 1529 (11th Cir. 1993) (“Such a general
guideline is insufficient to deprive the federal government of the protection of
the discretionary function exception.” (internal quotation marks and citations
omitted)). We reach the same conclusion for other contextual provisions that
plaintiffs cite, such as those contained in the Annex’s “Planning Assumptions”
and “Concept of Operations” sections.12
       Plaintiffs also identify “responsibilities” that the Annex allocated to
specific agencies. For example, once the NRP processes are implemented, the
Annex tasks DHS with, e.g., activating and deploying resources in accordance
with the NRP-CIS; identifying and operationalizing facilities to support the
deployment of federal resources; and maintaining communications to ensure a
common understanding of resource requirements. Dep’t of Homeland Sec., Nat’l
Response Plan, at CAT-5. We conclude that these (and similar) responsibilities
were so general that they too fail to prescribe a nondiscretionary course of
action. Almost by definition these “responsibilities” required the agency to
exercise judgment and choice to define specific directives or functions.


       12
          The planning assumption that “Federal support must be provided in a timely manner
to save lives” was expressly an assumption, not a specific directive, and was modified by a
sentence suggesting the exercise of judgment on the part of agency officials: “This may require
mobilizing and deploying assets before they are requested via normal NRP protocols.” Dep’t
of Homeland Sec., Nat’l Response Plan, at CAT-3. The same conclusion applies to the “guiding
principle” that “[n]otification and full coordination with States occur, but the coordination
process should not delay or impede the rapid mobilization and deployment of critical Federal
resources,” and the description that the federal government should ensure that
“[i]ncident-specific resources and capabilities (e.g., medical teams, search and rescue teams,
equipment, transportable shelters, preventive and therapeutic pharmaceutical caches, etc.) are
activated and prepare for deployment to a Federal mobilization center or staging area near the
incident site.” Id. at CAT-4. These provisions did not direct specific action from federal
agencies or employees and certainly did not require the provision of resources to the
Convention Center and the Cloverleaf, as necessary for subject matter jurisdiction in this case.

                                              20
                                   No. 07-31066
“Statements made at this level of generality do not satisfy Gaubert’s and
Berkovitz’s specific prescription requirement. Were the law otherwise, the
discretionary function exception would be a dead letter.” Shansky, 164 F.3d at
691; see also Rosebush v. United States, 119 F.3d 438, 442 (6th Cir. 1997) (“The
relevant inquiry is whether the controlling statutes, regulations and
administrative policies mandated that the [agency engage in relevant conduct]
in any specific manner.” (internal citation omitted, emphasis in original));
Ochran v. United States, 117 F.3d 495, 500–01 (11th Cir. 1997) (“[T]he use of the
word ‘shall’ in describing the responsibilities of the AUSA does not necessarily
mean that the Guidelines left no room for the AUSA to exercise judgment or
choice. . . . [T]he provisions . . . leave room for responsible officials to exercise
choice or judgment in discharging their responsibilities.” (internal citations
omitted)). Simply put, these responsibilities required judgment and choice to
make them applicable to specific situations.
      Aside from the provisions of the NRP, plaintiffs offer cursory argument
that mission assignments gave rise to nondiscretionary directives satisfying the
first prong of the Berkovitz test and that an aid blockade also gave rise to the
federal government’s liability. Plaintiffs’ assertions are misplaced. We initially
note that plaintiffs did not present argument related to the mission assignments
to the district court. We typically will not entertain legal arguments or evidence
presented for the first time on appeal; however, because mission assignments
were mentioned in passing in the record, we will dispose of plaintiffs’ argument
here. The issuance of mission assignments is left to the discretion of FEMA. See
44 C.F.R. § 206.5. Mission assignments are often nonspecific, requiring an
agency to exercise additional judgment or choice regarding, e.g., where and how
to complete the requested mission. The evidence cited by plaintiffs does not
support the existence of a specific mission assignment (let alone sub-tasks), for
which an employee had no lawful option but to adhere, that ordered the

                                         21
                                        No. 07-31066
provision of assistance to evacuees at the Convention Center or the Cloverleaf
prior to decedents’ deaths.13
       Regarding the aid blockade, plaintiffs allege in their amended complaint
that the federal government prevented the American Red Cross from accessing
the Convention Center and the Cloverleaf from August 30 to September 2, 2005.
Assuming the truth of these allegations, as we must, plaintiffs fail to explain
what nondiscretionary duty the federal government violated.                       Overall, the
federal government’s functions and duties under the NRP satisfy the first prong
of the two-part test because they permit the exercise of judgment and choice.14
       Under the second prong of the Berkovitz test, we hold that the
government’s decisions about when, where, and how to allocate limited resources
within the exigencies of an emergency are the types of decisions that the
discretionary function exception was designed to shelter from suit. Although


       13
           In their brief, plaintiffs rely on mission assignments issued to Department of Defense
(“DOD”) and Department of Transportation (“DOT”); however, taken in the light most
favorable to plaintiffs, the record evidence reveals that these mission assignments did not give
rise to a specific directive that would have benefitted decedents. The August 30, 2005 mission
assignment to DOD mentioned by Director Brown related to airlifting FEMA officials to the
Superdome, and, to the extent it might have been applied more broadly, DOD officials would
have had to exercise judgment regarding where, how, when, and how frequently to conduct the
airlifts. It did not specifically mandate airlifts to the Convention Center or the Cloverleaf.
Similarly, the August 31, 2005 mission assignment to DOT mentioned by Director Brown
related to the delivery of 500 buses for general use in evacuations (which again was not a
specific directive).
       14
           For the first time in their reply brief and as part of their argument that the
government owed a duty in tort, plaintiffs assert a “special relationship” that gave rise to an
affirmative duty to protect where the federal government’s negligence in designing or building
the flood control system imposed a limitation on decedents’ freedom to act on their own behalf
and thus resulted in a “state-created danger.” (See Pls.’ Reply Br. 14–18.) Because they raise
this argument only in their reply brief, we will not address it. We only note that, among the
many other reasons to reject plaintiffs’ assertion, the government is likely immune from such
suits under the Flood Control Act of 1938, 33 U.S.C. § 702c (“No liability of any kind shall
attach to or rest upon the United States for any damage from or by floods or flood waters at
any place.”); and, whatever the viability of the state-created danger theory of liability in this
circuit, their argument is meritless by reference to plaintiffs’ own theory of the case (see Pls.’
Br. 14 (“At the outset, it must be noted this is not a ‘flood’ case, but one concerning events
which took place after the city of New Orleans flooded . . . .”)).

                                               22
                                       No. 07-31066
plaintiffs contend that complying with the NRP was not policy-related,15 they
formulate no legal argument or factual development to support their conclusion.
In light of the “strong presumption” that, where permitted by the relevant
statute or regulation, the exercise of choice or judgment implicates relevant
policy, see Gaubert, 499 U.S. at 324, decisions regarding the feasibility, safety,
and benefit of mobilizing federal resources in the aftermath of a national
disaster are grounded in social, economic, and public policy, see, e.g., Dep’t of
Homeland Sec., Nat’l Response Plan, at 6 (documenting policy considerations in
the deployment of federal resources). As such, these decisions are clearly
“susceptible to policy analysis,” even if specific decisions were not the result of
such a reasoned analysis. See Gaubert, 499 U.S. at 325; Shanksy, 164 F.3d at
688. Thus, we hold that the Stafford Act’s discretionary function exception
precludes subject matter jurisdiction in this case because the NRP and other




       15
          Plaintiffs rely on Downs v. United States, 522 F.2d 990 (6th Cir. 1975), to contend
that the NRP gave rise to no choice or judgment; however, their argument is better interpreted
as arguing that choices and judgments under the NRP are not the kind that the Stafford Act’s
discretionary function exception was designed to protect. In 1975, without the benefit of the
guidance provided by Berkovitz and Gaubert, the Sixth Circuit in Downs considered a situation
in which an FBI agent dealing with a hijacked airplane and hostages chose a confrontational
approach instead of a “waiting game” approach. Id. at 1002. The court of appeals concluded
that the decision was contrary to the FBI Handbook, which emphasized “hostage safety and
pilot cooperation.” Id. The court held that “the FBI agents were not involved in formulating
governmental policy” because that policy “had previously been promulgated in the FBI
Handbook and in a memorandum jointly issued by the Departments of Transportation and
Justice.” Id. at 997. Without more information about the relevant provisions of the FBI
Handbook, Downs has little functional value to our present analysis, and more importantly,
we discount its conclusion, which distinguished between operational and planning negligence,
in the aftermath of Gaubert’s express rejection of that dichotomy. Gaubert held that:
                A discretionary act is one that involves choice or judgment; there is
        nothing in that description that refers exclusively to policymaking or planning
        functions. Day-to-day management of banking affairs, like the management of
        other businesses, regularly requires judgment as to which of a range of
        permissible courses is the wisest. Discretionary conduct is not confined to the
        policy or planning level.
499 U.S. at 325.

                                             23
                                   No. 07-31066
authorities leave policy-related choices or judgments to the discretion of the
involved federal agencies.
C.      Entitlement to Discovery
        The last question is whether the district court should have allowed
plaintiffs to engage in limited discovery before dismissing the 2007 complaints
so that plaintiffs could attempt to identify jurisdiction-establishing functions or
duties not immunized from suit under the discretionary function exception. The
district court held that “the fact-based discovery that Plaintiffs are anxious to
obtain only comes into play once they identify the specific directive that
[d]efendants have ignored. Such a directive will be in the public realm and
therefore fact discovery will not assist them in meeting this crucial threshold
requirement.” Freeman, 2007 WL 1296206, at *7. We review the district court’s
evidentiary rulings for abuse of discretion. Andrade v. Chojnacki, 338 F.3d 448,
454 (5th Cir. 2003); Williamson v. U.S. Dep’t of Agric., 815 F.2d at 382 (“It
hardly bears repeating that control of discovery is committed to the sound
discretion of the trial court and its discovery rulings will be reversed only where
they are arbitrary or clearly unreasonable.”); Mayo v. Tri-Bell Indus., Inc., 787
F.2d 1007, 1012 (5th Cir. 1986) (same). We find no abuse of discretion in this
case.
        The party seeking discovery bears the burden of showing its necessity. See
Sec. & Exch. Comm’n v. Spence & Green Chem. Co., 612 F.2d 896, 901 (5th Cir.
1980) (holding that in the context of a summary judgment motion, the party
seeking discovery “must conclusively justify his entitlement . . . by specifically
demonstrating ‘how postponement of a ruling on the motion will enable him, by
discovery or other means, to rebut the movant’s showing’” and “may not simply
rely on vague assertions that additional discovery will produce needed, but
unspecified, facts” (internal citations omitted)). The party seeking discovery
typically meets this burden by alleging the “specific facts crucial to immunity

                                        24
                                       No. 07-31066
which demonstrate[] a need for discovery.” Kelly v. Syria Shell Petroleum Dev.
B.V., 213 F.3d 841, 852 (5th Cir. 2000). On the other hand, a party 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. See Williamson v. U.S. Dep’t of Agric., 815 F.2d at 382. This is
particularly true where the party seeking discovery is attempting to disprove the
applicability 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. See Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534
(5th Cir. 1992) (observing the “tension between permitting discovery to
substantiate exceptions to statutory foreign sovereign immunity and protecting
a sovereign’s or sovereign agency’s legitimate claim to immunity from
discovery”); cf. Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987) (“One of the
purposes of the [Harlow v. Fitzgerald, 457 U.S. 800, 817 (1982),] qualified
immunity standard is to protect public officials from the ‘broad-ranging
discovery’ that can be ‘peculiarly disruptive of effective government.’”);
Williamson v. U.S. Dep’t of Agric., 815 F.2d at 382–83 (affirming stay of
discovery where absolute and qualified immunity applied).
       Here, we find no fault in the district court’s conclusion that a mandatory
directive, if one existed, could be found in the public realm. Plaintiffs have not
presented any argument addressing the district court’s conclusion. While we
need not decide whether the sources of a nondiscretionary federal directive, for
the purposes of the discretionary function exception, will always be in the public
domain, we conclude that in this case plaintiffs’ allegations are based on
statutes, regulations, and other authorities that are publicly available.16 Despite


       16
         This is particularly true here, where plaintiffs have relied on numerous congressional
investigations regarding the government’s response to Hurricane Katrina. See generally, e.g.,
H.R. Rep. No. 109-377; S. Rep. No. 109-322.

                                              25
                                   No. 07-31066
the district court’s holding, plaintiffs have failed to articulate a discrete
discovery request that might cure the jurisdictional deficiency and have failed
to otherwise specify where they might discover the necessary factual predicate
for subject matter jurisdiction; thus, we have no choice but to affirm. See, e.g.,
Gager v. United States, 149 F.3d 918, 922 (9th Cir. 1998) (affirming denial of
discovery because plaintiffs “have not specified in any way where such additional
evidentiary material might be found”); Arriba Ltd., 962 F.2d at 534 (permitting
discovery only “circumspectly and only to verify allegations of specific facts
crucial to an immunity determination”).
      Even if we assume that some relevant jurisdictional fact may not be
available outside of discovery, plaintiffs have not made the requisite showing
entitling them to such discovery. In their brief to this court, plaintiffs asseverate
that discovery would reveal whether governmental mistakes were the result of
an exercise of discretion or operational negligence, of delays in answering
mission assignments, of nonchalance in pre-positioning supplies and personnel,
of failing to provide adequate medical supplies, or of blockading the American
Red Cross from evacuation points. This amorphous discovery request—which
is at least more detailed than the general request asked of the district court to
permit discovery to “flesh out” specifics of negligence—fails to assert the
existence of a particular federal regulation, order, or directive (or the potential
contents of any such authority) that is not already known in this case and that
falls outside of the discretionary function exception. Nor do plaintiffs suggest
how discovery might lead to such a directive; thus, the district court did not
abuse its discretion when it denied this broad request for discovery. See Mesa
v. United States, 123 F.3d 1435, 1439 (11th Cir. 1997) (holding that appellants
failed to “point[] to any requested discovery that could reasonably be expected
to reveal” conduct outside of the discretionary function exception); see also In re
Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 365 (3d Cir. 2001)

                                         26
                                  No. 07-31066
(affirming stay of discovery pending dispositive motion where proposed discovery
was for claims within the FTCA’s discretionary function exception); Creek Nation
Indian Hous. Auth. v. United States, 905 F.2d 312, 313 (10th Cir. 1990)
(affirming denial of discovery before plaintiff could ascertain a violation of a
nondiscretionary duty where the plaintiff failed to identify any applicable
nondiscretionary regulation); Miller v. United States, 710 F.2d 656, 666 (10th
Cir. 1983) (affirming denial of discovery where “there are no facts which
plaintiffs could arguably develop to escape the effect of the statutes and
regulations,” which were “within the discretionary function exception”).
      The district court’s conclusion is particularly sound in light of the reasons
for which the Stafford Act’s discretionary function exception confers immunity
from suit. Congress intended the discretionary function exception to shelter the
government from the burdens of answering a lawsuit—including those related
to intrusive discovery—not just from potential monetary liability. See Rosas,
826 F.2d at 1008 (“[T]he legislative history of the statute reveals that Congress
was concerned not only about the possible costs of paying damages, but also the
certain costs of defending suits arising from government relief.”). Without a
more discrete, tailored request, we find no abuse of discretion and will not
subject the executive branch to discovery in a case over which the district court
lacks jurisdiction. See Gaubert, 499 U.S. at 324–25 (“For a complaint to survive
a motion to dismiss, it must allege facts which would support a finding that the
challenged actions are not the kind of conduct that can be said to be grounded
in the policy of the regulatory regime.”).
                              III. CONCLUSION
      The tragedies that gave rise to this litigation were compounded by the
well-documented inability of all levels of government to provide timely relief to
the hurricane’s victims. The federal government has publicly admitted that it
made many mistakes; however, even if those mistakes caused decedents’ deaths,

                                        27
                                  No. 07-31066
which we are presently in no position to determine, the federal government’s
negligence does not give rise to tort liability absent the United States’s express
waiver of sovereign immunity. For the above explained reasons, we conclude
that the United States has not waived sovereign immunity for the discretionary
functions alleged in this case and therefore AFFIRM the district court’s
dismissal for lack of subject matter jurisdiction under Rule 12(b)(1).




                                       28
