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Gordo-Gonzalez v. United States

United States Court of Appeals, First Circuit

October 3, 2017

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]

          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.

          Before Barron, Selya and Lipez, Circuit Judges.

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 Gordo-González v. United States, No. 15-cv-1602 (D.P.R. July 22, 2016) (unpublished).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

         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 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)).

         Moreover, this particular waiver is subject to a gallimaufry of exceptions. See 28 U.S.C. ยง 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 ...


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