FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Jay A. García-Gregory, U.S.
José R. Olmo-Rodríguez on brief for appellant.
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.
Barron, Selya and Lipez, Circuit Judges.
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.
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15-cv-1602 (D.P.R. July 22, 2016) (unpublished).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.
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
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. 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
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
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.
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.
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)).
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 ...