Gordo-Gonzalez v. United States
873 F.3d 32
1st Cir.2017Background
- Plaintiff Aida Gordo-González discovered her then-husband, an FBI agent, used FBI-owned GPS and video equipment to surveil her during their marriage and later divorced him.
- She sued the United States under the Federal Tort Claims Act (FTCA), alleging that FBI supervisors were negligent in failing to supervise the agent, which allowed the unauthorized surveillance.
- The United States moved to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), invoking the FTCA's discretionary function exception, 28 U.S.C. § 2680(a).
- The district court dismissed the complaint for lack of jurisdiction; Gordo-González appealed.
- On appeal the First Circuit accepted the complaint's well-pleaded facts but held the challenged supervisory conduct was discretionary and policy-driven, thus barred by the discretionary function exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FTCA waiver applies or is barred by the discretionary function exception for alleged negligent supervision of an FBI agent | Gordo-González: FBI supervisors negligently failed to supervise agent, enabling misuse of equipment; FTCA applies | U.S.: Supervision choices are discretionary and involve policy judgments, so § 2680(a) bars suit | Held: Discretionary function exception applies; sovereign immunity not waived |
| Whether any statute/regulation removed discretion from supervisors | Gordo-González: 5 C.F.R. § 2635.704(a) imposes duty to prevent unauthorized use of gov't property | U.S.: That regulation imposes general duty but does not prescribe specific supervisory actions or remove discretion | Held: No statute/regulation identified that mandated particular supervisory steps; discretion remains |
| Whether plaintiff could use discovery to identify a controlling statute or policy | Gordo-González: Sought discovery to find rules/statutes tying supervisors' hands | U.S.: Discovery not appropriate to manufacture jurisdictional facts; plaintiff must plead them | Held: Denial of discovery was not an abuse of discretion; plaintiff cannot use discovery to create a cause of action |
| Whether alleged supervisory failure could be non-discretionary in some circumstances | Gordo-González: Supervisory duties can sometimes be non-discretionary (e.g., specific regulatory mandates) | U.S.: Absent pleaded mandatory directives, supervision is inherently discretionary | Held: Court acknowledged supervisory acts can be non-discretionary in theory, but plaintiff pleaded no such facts here |
Key Cases Cited
- Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531 (1988) (establishes two-step test for discretionary function exception)
- United States v. Gaubert, 499 U.S. 315 (1991) (discretionary function exception covers conduct grounded in policy judgments)
- Bolduc v. United States, 402 F.3d 50 (1st Cir. 2005) (FTCA waiver construed narrowly; supervisory policy decisions often discretionary)
- Fothergill v. United States, 566 F.3d 248 (1st Cir. 2009) (application of discretionary-function analysis)
- Sheridan v. United States, 487 U.S. 392 (1988) (distinguishes when specific regulations can remove discretion and permit FTCA liability)