IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10202

BRUCE JOINER, 

 Plaintiff - Appellant

v.

UNITED STATES OF AMERICA, 

 Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

Before WIENER, HIGGINSON, and HO, Circuit Judges.

JAMES C. HO, Circuit Judge:

The district court dismissed this case for lack of subject matter 

jurisdiction under the Federal Tort Claims Act and the Anti-Terrorism Act. It 

also precluded additional discovery. We affirm.

I. 

On May 3, 2015, Bruce Joiner was on duty as a security guard for the 

“First Annual Muhammed Art Exhibit and Contest” in Garland, Texas. That 

day, a pair of Islamic terrorists—Elton Simpson and Nadir Soofi—attacked the 

event site and shot Joiner in the leg.

Both Simpson and Soofi were subjects of an ongoing FBI investigation at 

the time of the shooting. As early as 2007, Simpson, an Arizona citizen, was 

United States Court of Appeals

Fifth Circuit

FILED

January 10, 2020

Lyle W. Cayce

Clerk

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flagged for potential terrorist sympathies. By 2010, Simpson became friendly 

with Soofi, a fellow mosque member. Around this time, Soofi attempted to 

purchase a handgun from the Lone Wolf Trading Company in Arizona. The 

Lone Wolf store was part of the Bureau of Alcohol, Tobacco and Firearms’ “Fast 

and Furious” gunwalking operation, where federal agents would sell firearms 

to unauthorized buyers in hopes of tracing them back to the Mexican cartel. A 

background check identified Soofi as possibly being ineligible to purchase a 

firearm, and a seven-day hold was initially placed on the sale. It was lifted 

after twenty-four hours, at which point Soofi bought the gun.

On January 7, 2015, terrorists affiliated with al-Qaeda attacked the 

Paris offices of Charlie Hebdo in retaliation for the magazine’s publication of

cartoons depicting the prophet Muhammad. Ten days later, an Islamic group 

held a conference at the Curtis Culwell Center in Garland, Texas, called “Stand 

with the Prophet in Honor and Respect.” The conference featured criticism of

those who published likenesses of Muhammad. In response, another 

organization planned a “Draw the Prophet” event, also to be held in Garland.

Simpson denounced the “Draw the Prophet” event in a Twitter exchange 

with Mohamed Abdullahi Hassan, an ISIS leader in Somalia. Simpson 

tweeted, “When will they ever learn,” and Hassan responded, “The brothers 

from the Charlie Hebdo attack did their part. It’s time for brothers in the #US 

to do their part.”

At this point, Erick Jamal Hendricks, a South Carolina man, contacted 

Simpson via Twitter. Hendricks had been working to establish an ISIS cell in 

the United States and was being investigated by and in communication with 

an undercover FBI agent known as UCE-1. UCE-1 initially contacted 

Hendricks on social media, posing as a Muslim interested in joining ISIS. After 

vetting UCE-1, Hendricks asked for his help recruiting members for a domestic 

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terror group. UCE-1 contacted Simpson on April 23, 2015, at Hendricks’

instruction. The next day, Simpson and UCE-1 had the following conversation 

over social media:

UCE-1: Tear up Texas. 

Simpson: Bro, u don’t have to say that . . . U know what happened in 

Paris . . . I think . . . Yes or no . . . ? 

UCE-1: Right. 

Simpson: So that goes without saying . . . No need to be direct. 

UCE-1 remained in communication with Hendricks about the upcoming 

Garland event. Hendricks explained that he was on the no-fly list and could 

not travel to Texas. UCE-1 volunteered to go instead. Hendricks told UCE-1, 

“You can link with him [Simpson] brother. That’s your call.”

On May 3, UCE-1 traveled to Garland where the “Draw the Prophet” 

event was taking place. UCE-1 drove his own car and Simpson and Soofi 

followed in another vehicle. UCE-1 communicated with Hendricks in real time, 

informing him that he was in the vicinity and implying he was armed. 

Hendricks asked a variety of questions about the security setup at the site. As 

the two cars approached a police barricade at the rear entrance to the event, 

UCE-1 took a photograph of the area on his cell phone. Two security officers, 

including Joiner, were visible in the background.

Simpson’s car pulled up to the barricade. Simpson and Soofi jumped out

and began shooting, hitting Joiner in the leg.

Joiner filed suit against the United States under the Federal Tort Claims 

Act (“FTCA”) and the Anti-Terrorism Act (“ATA”), for assault and 

international terrorism, respectively. The government moved to dismiss under 

Federal Rule of Civil Procedure 12(b)(1), stating that the FTCA claim was

barred by the discretionary function exception and that there was no waiver of 

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sovereign immunity on the ATA claim. The district court granted the motion

and concluded that Joiner was not entitled to further discovery. 

II.

Sovereign immunity implicates a federal court’s subject matter 

jurisdiction and is subject to de novo review. Tsolmon v. United States, 841 

F.3d 378, 382 (5th Cir. 2016). In assessing whether there is jurisdiction, courts 

may consider: (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. Id.

Discovery decisions are reviewed for abuse of discretion. Grogan v. 

Kumar, 873 F.3d 273, 280 (5th Cir. 2017). 

III.

The FTCA provides a limited waiver of sovereign immunity for certain 

tortious government conduct. 28 U.S.C. § 1346. However, if the suit implicates 

“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”—the socalled “discretionary function” exception—sovereign immunity is retained. 28 

U.S.C. § 2680(a). The discretionary function exception “prevent[s] ‘judicial 

second-guessing’ of legislative and administrative decisions grounded in social, 

economic, and political policy through the medium of an action in tort.” United 

States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 

U.S. 797, 814 (1984). As the district court correctly noted, “[a]t the pleading 

stage, the plaintiff has the burden to ‘invoke the court’s jurisdiction by alleging 

a claim that is facially outside of the discretionary function exception.’” Gibson 

v. United States, 809 F.3d 807, 811 n.1 (5th Cir. 2016) (quoting Freeman v. 

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United States, 556 F.3d 326, 334 (5th Cir. 2009)). Thus, Joiner carries the 

burden of establishing that the discretionary function exception does not apply 

at this stage in the proceedings.

The parties dispute whether exceptions to the FTCA should be construed 

in favor of the sovereign or in favor of the plaintiff. The district court “strictly 

construe[d] . . . waivers [of sovereign immunity], resolving all ambiguities in 

favor of the sovereign.” As a general matter, the district court is certainly 

correct. See Lane v. Pena, 518 U.S. 187, 195 (1996) (noting the “established 

practice of construing waivers of sovereign immunity narrowly in favor of the 

sovereign”). But “unduly generous interpretations of the exceptions [to the 

FTCA] run the risk of defeating the central purpose” of the FTCA, making 

application of this general rule improper in this context. Dolan v. United States 

Postal Serv., 546 U.S. 481, 491–92 (2006) (quoting Kosak v. United States, 465 

U.S. 848, 853 n.9 (1984)). Instead, our objective when construing an exception 

to the FTCA “is to identify ‘those circumstances which are within the words 

and reason of the exception’—no less and no more.” Kosak, 465 U.S. at 853 n.9 

(quoting Dalehite v. United States, 346 U.S. 15, 31 (1953)). Therefore, the 

district court erred in stating the standard for construing exceptions to the 

FTCA; we do not construe exceptions to the FTCA in favor of any particular 

party. But as explained below, this error was harmless because Joiner’s 

contentions fail either way.

The discretionary function exception has two parts. First, the court must

consider whether the conduct at issue was “discretionary in nature” and 

involved an “element of judgment or choice.” United States v. Gaubert, 499 

U.S. 315, 322 (1991). If a plaintiff can point to a “specific, nondiscretionary 

function or duty” that “prescribe[s] a specific course of action for an agency or 

employee,” then there is no discretion. Freeman, 556 F.3d at 338. Second, if 

there is discretion, the court must evaluate whether it is “of the kind that the 

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discretionary function exception was designed to shield.” Gaubert, 499 U.S. at 

322–23 (quoting Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536

(1988)).

Joiner contends that UCE-1 violated a specific policy: the Attorney 

General’s Guidelines on FBI Undercover Operations’s (“AGG-UCO”) 

requirement that, when “an undercover employee learns that persons under 

investigation intend to commit a violent crime, he or she shall try to discourage 

the violence,” and that an “undercover employee shall be instructed that he or 

she shall not participate in any act of violence.” Undercover and Sensitive 

Operations Unit, Attorney General’s Guidelines on FBI Undercover Operations 

§ VI.A.2 (1992). Joiner further cites the FBI Domestic Investigations and 

Operations Guide (“DIOG”), which states that “certain types of [otherwise 

illegal activity] cannot be authorized, such as . . . participation in an act of 

violence.” FBI Domestic Investigations and Operations Guide § 17.1. 

Specifically, Joiner posits that UCE-1 contributed to the violence in Garland 

by sending the “Tear up Texas” message and by traveling to the event site and 

communicating with Hendricks about the security setup there, as well as by 

failing to discourage the violent acts.

The government responds that the AGG-UCO and DIOG do not govern 

the activities of undercover FBI agents engaged in investigations concerning 

national security. The government submitted an affidavit from the FBI’s 

Acting Assistant Director for the Counterterrorism Division stating that the 

operative policy document for counterterror operations is the National Security 

Undercover Operations Policy Implementation Guide (“NSUCOPG”). The 

affidavit explains that the NSUCOPG, the bulk of which is classified at 

“Secret” or above, “functions as a standalone policy, and there is no other FBI 

policy that specifically applies” to national security investigations. It affirms 

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that the NSUCOPG “does not contain any provision directing the particular 

operational manner in which the undercover technique should be carried out.” 

It also notes that the types of activities UCE-1 engaged in are routine, 

undercover actions.

Even accepting, arguendo, that the AGG-UCO and DIOG control the 

FBI’s actions in this case, the government’s actions here do not violate any 

stated policy. First, the AGG-UCO directs agents only to “try to discourage” 

potential violence. Far from being an explicit command to behave in a certain 

manner, the language explicitly affords agents latitude in deciding the extent 

of appropriate action. In other words, the directive retains “an element of 

judgment or choice”—the basis for the discretionary function exception. 

Gaubert, 499 U.S. at 322. See also Gonzalez v. United States, 814 F.3d 1022, 

1031–32 (9th Cir. 2016) (holding that a DIOG policy that an “employee must 

attempt expeditiously to notify other law enforcement agencies” of a threat was 

“replete with discretionary determinations” and “not the language of ‘a specific 

statutory or regulatory directive’”) (quoting Berkovitz, 468 U.S. at 542–43). 

Joiner’s second argument that the government breached the AGG-UCC 

and DIOG’s policies prohibiting “participation” in an act of violence is equally 

unavailing. Joiner has not demonstrated that any of the FBI’s or UCE-1’s 

actions rise to the level of “participating” in an act of violence. Indeed, at oral 

argument, Joiner admitted that his strongest case for the government’s 

involvement in the eventual injury was UCE-1’s “communication” with 

Simpson, Soofi, and Hendricks, providing reconnaissance, and traveling to the 

site. But such a broad reading of “participation” that encompasses actions that 

are only remotely related to the ultimate injury is inconsistent with sovereign 

immunity jurisprudence. We decline to adopt such an expansive interpretation 

of the term “participation,” particularly in light of the Supreme Court’s 

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instruction that we must not construe ambiguities in the FTCA context in any 

particular party’s favor. See Kosak, 465 U.S. at 853 n.9 (quoting Dalehite v. 

United States, 346 U.S. 15, 31 (1953)). We thus conclude that, even if we were 

to accept Joiner’s proposed framework, the government did not violate any 

directives prohibiting agents from engaging in acts of violence. 

Because Joiner cannot satisfy the first prong of the discretionary 

function analysis, we do not consider the second step of whether the discretion 

is of the type meant to be protected. 

Next, Joiner argues that the Fast and Furious gun sale contravened the 

FBI’s express policy prohibiting the sale of firearms to suspected terrorists. 

The district court disagreed, detailing instances of the agency’s discretion and 

ultimately concluding that the agency did not violate a policy or a statute. On 

appeal, Joiner recites the facts relating to the gunwalking operation but does 

not tie those facts back to the discretionary function exception. The argument 

is inadequately briefed and thus waived. See McIntosh v. Partridge, 540 F.3d 

315, 325 n.12 (5th Cir. 2008).

Appellant also claims that the discretionary function exception is not 

applicable in this instance because the “law enforcement proviso” effectively 

overrides it. The FTCA does waive sovereign immunity for certain tortious 

acts stemming from “acts or omissions of investigative or law enforcement 

officers of the United States Government”—presumably like UCE-1. 28 U.S.C.

§ 2680(h). But this argument is similarly waived. The law enforcement 

proviso is mentioned only in passing in Joiner’s complaint, and without any 

reference or connection to the discretionary function exception. We find the 

argument has not been sufficiently preserved. See Belt v. EmCare, Inc., 444 

F.3d 403, 408 (5th Cir. 2006) (“If a litigant desires to preserve an argument for 

appeal,” it must be raised to “such a degree that the district court has an 

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opportunity to rule on it.”) (quoting FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th 

Cir. 1994)). 

Consequently, Joiner has not established that the discretionary function 

exception does not apply under the FTCA. Sovereign immunity has not been 

waived. 

IV.

Appellant also challenges the district court’s decision not to recognize the 

state-created danger doctrine, which theorizes that the government may be 

liable for tortious conduct “if the state actor created or knew of a dangerous 

situation and affirmatively placed the plaintiff in that situation.” Doe ex rel. 

Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 864 (5th Cir. 

2012) (en banc). Joiner asserts that the FBI, and UCE-1’s actions, contributed 

to endangering lives and led to his injury. He does not argue that the statecreated danger doctrine provides an independent basis for liability under the 

FTCA. Instead, the claim is that the doctrine is a limitation on the 

discretionary function exception—namely that the government never has the 

discretion to imperil its citizens or commit acts of violence against them. 

We have repeatedly declined to recognize the state-created danger 

doctrine in this circuit. See, e.g., Cook v. Hopkins, No. 19-10217, 2019 

WL5866683, at *5 (5th Cir. Nov. 8, 2019) (per curiam); Estate of C.A. v. Castro, 

547 F. App’x. 621, 626 (5th Cir. 2013) (per curiam); Whitley v. Hanna, 726 F.3d 

631, 639 n.5 (5th Cir. 2013); Doe, 675 F.3d at 866; Beltran v. City of El Paso, 

367 F.3d 299, 307 (5th Cir. 2004). Joiner has been unable to point to a single 

case where a plaintiff has used the state-created danger doctrine to overcome 

the FTCA’s discretionary function exception. Instead, the doctrine, where 

applicable, generally permits a plaintiff to proceed on a claim when sovereign 

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immunity is already waived, as in suits under 28 U.S.C. § 1983. We thus 

decline to forge new circuit precedent and adopt the state-created danger 

doctrine in such uncharted territory.

V.

Joiner also appeals the district court’s dismissal of the case for lack of 

subject matter jurisdiction under the Anti-Terrorism Act. The ATA states that 

“[n]o action shall be maintained” against “the United States, an agency of the 

United States, or an officer or employee of the United States” from injury 

arising from international terrorism. 18 U.S.C. § 2337. Joiner argues that the 

Geneva Convention’s prohibition of a signatory’s “absolv[ing] itself . . . of any 

liability incurred by itself . . . in respect of breaches” functions as customary 

international law and waives sovereign immunity. But a waiver of sovereign 

immunity “cannot be implied but must be unequivocally expressed.” United 

States v. King, 395 U.S. 1, 4 (1969). Congress has explicitly stated that 

sovereign immunity shall not be waived for injuries related to terrorist 

incidents. The district court properly dismissed the ATA claims for lack of 

subject matter jurisdiction. 

VI. 

Lastly, Joiner challenges the district court’s ruling that discovery was 

unlikely to overcome the discretionary function exception. Plaintiffs bear the 

burden of demonstrating the necessity of discovery. See Davila v. United 

States, 713 F.3d 248, 264 (5th Cir. 2013); Freeman, 556 F.3d at 341–42. A 

plaintiff 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.” Freeman, 556 F.3d at 342. That burden is even greater 

when “the party seeking discovery is attempting to disprove the applicability 

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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.” Id. Joiner offers only conjecture as to how the government’s 

interactions with Simpson and Soofi led to his injury, speculating that the 

government may have aided in procuring weapons or provided additional 

communications with the terrorists on the day of the shooting. These 

recitations are insufficient to establish that further discovery will overcome the 

discretionary function exception and defeat sovereign immunity. The district 

court did not abuse its discretion by barring additional discovery.

* * *

For the foregoing reasons, we affirm.

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