UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ MINOR JGE, 7 year o ld minor through next friend Peter Tasso, Esq.; GABRIELA GALLEGOS; JOLENE ESTRADA, in herpersonal and official capacities as copersonal representative of the estate of Jason Julian Estrada; JOYCE ESTRADA, in her personal capacity, Plaintiffs - Appellants,

v. UNITED STATES OF AMERICA, Defendant - Appellee, and CHRISTOPHER SCOTT GODIER; PATRICIA G. WHELAN, a/k/a Patricia Yazzie, a/k/a Trish Yazzie; JOHN R. CASTLEBERRY, Special Agent Drug Enforcement Administration, in his individual capacity; MATTHEW B. MAYFIELD, Group Supe rvisor (GS) Drug Enforcement Administration, in his individual capacity; RAYMOND KEITH BROWN, Assistant Special Agent in Charge (ASAC) Drug Enforcement Administration, in his individual capacity; JOSEPH M. ARABIT, Special Agent in Charge (SAC) Dr ug Enforcement Administration, in his individual capacity, Defendants. No. 18-2092 (D.C. No. 1:14-CV -00710-MV-WPL) (D. N.M.)

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### April 26, 2019
Elisabeth A. Shumaker Clerk of Court2 ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MORITZ , and EID , Circuit Judges.

________________ _________________ Plaintiffs brought this action against the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C . §§ 1346(b), 2671-2680, and the i ndividual defendants under Bivens v. Six Unknown Named Ag ents of Federal Bureau of
Narcotics , 403 U.S. 388 (1971). The distric t court dismissed the indivi dual defendants and granted the Unite d States’ motion for judgment o n the pleadings. It then denied plaintiffs’ Fed. R . Civ. P. 59(e) motion to alter o r amend the judgment. Plaintiffs appeal the denial of their Rule 59(e) motion. We ha ve jurisdiction under 28 U.S.C. § 1291, and we affirm.
BACKGROUND The tragic facts of this case a re described in plaintiffs’ fir st amended complaint. In 2012 and 2013 Edw ard Quintana molested JGE and m urdered JGE’s father, Jason Julian Estrada. A t the time Mr. Quintana took th ese actions he was registered as a confidential info rmant for the Drug Enforcement Administration (DEA).

* After examining the briefs and appellate record, this panel h as determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered subm itted without oral argument. Thi s order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, howev er, for its per suasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 The events began in 2011, when Mr. Quintana was arrested by st ate authorities after a search warrant executed at his home uncovered drugs and stolen handguns. After his arrest and release fro m custody the DEA registered hi m as an active informant. He remained register ed as an informant until April 4, 2013. As part of Mr. Quintana’s agreement with t he DEA the defendants “controlle d the evidence and the status and direction of the S tate of New Mexico charges” ag ainst him. Aplt. App., Vol. I at 24 ¶ 83 (emphasis omitted). At the time the DE A engaged him as an informant, Mr. Quintana’s crimin al record reflected his violent propensities. 1 In August 2012, during the peri od in which he was acting as an informant, Mr. Quintana and his family moved into the residence of Jason E strada and his family, with the Estrada family’s permission. P laintiffs alleg e the DEA was aware or should have been aware of Mr. Qu intana’s residential location a nd circumstances. For its part, the Estrada family w as unaware that Mr. Quintana was serving as a DEA informant. Nor did the government warn the family of his viole nt nature or history. Within a month, Mr. Quintana be gan sexually abusing Jason Estr ada’s minor son, JGE, who was then five years old. The abuse continued unt il February 20, 2013, when Mr. Quintana and his family moved out of the Estrada resid ence.

1 Mr. Quintana’s criminal record includes “Domestic Violence, B attery upon a Household Member, Child A buse, False Imprisonment, Batte ry upon a Household Member with a Firearm , Attempted Murder, Kidnapping, Conspiracy, Felon in Possession of a Firea rm . . . Trafficking a Controlled Substance, Receiving or Transferring a Stolen Firear m, and threats of Battery and Ar son.” Aplt. App., Vol. I at 33-34 ¶ 146.4 Several weeks later, JGE informe d his parents about the molest ation. Jason Estrada sought information from mutual friends and associates o f Mr. Quintana about Mr. Quintana’s abusive behavior t oward his son. Mr. Quintana a pparently learned of Mr. Estrada’s inquiries. On Apr il 3, 2013, Mr. Quintana and tw o other men travelled to the Estrada residence. In the presence of JGE, they beat an d shot Jason Estrada, who died from his injuries. Appr oximately one day later, “the United States and the Defendants deactivated DEA Inf ormant Edward Quintana.” Id. at 33 ¶ 141. Plaintiffs thereafter brought t his action against the United S tates and the individual DEA defendants. The d istrict court granted the indi vidual defendants’ motion to dismiss based on qualif ied immunity. It further dete rmined the FTCA claims should be dismissed becaus e plaintiffs had failed to ide ntify an analogous duty under New Mexico law that woul d require a private person under comparable circumstances to protect plaintif fs from the harms they experie nced from Mr. Quintana. Among other points , the district court reasoned that “Plaintiffs’ existence and harm were not reas onably foreseeable to the DEA,” id. , Vol. II at 483, and “the DEA could not have reas onably foreseen the terrible tr agedy that befell Plaintiffs, and so could not hav e imposed any conditions on Qui ntana’s activities that would have limited his contact with the Estrada family,” id. at 484. Plaintiffs filed a motion under Fed. R. Civ. P. 59(e) to alter or amend the judgment, reasoning that New Mexic o imposes a duty to protect o thers from harm even in the absence of foreseeab ility, when the duty arises fro m a special5 relationship. After obtaining s upplemental briefing on that is sue, the district court denied the motion.
DISCUSSION Plaintiffs’ notice of appeal des ignates only the district cour t’s order denying their Rule 59(e) motion. Ap lt. App., Vol. 3 at 633. This cour t’s appellate jurisdiction therefore extends only to review of that order. See Fed. R. App. P. 3(c)(1)(B). In reviewing the district court’s denial of a Rule 59(e) motion , we ordinarily seek to determine whether the di strict court abused its discret ion, in light of Rule 59(e)’s function “to correct manif est errors of law or to prese nt newly discovered evidence.” Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir. 1 997). Under the circumstances of this appeal, however, we find it unnecessary t o conduct that inquiry. Even if we were to find an abuse of discretion, a remand for fu rther proceedings would be futile because plainti ffs have failed to satisfy their burden to establish the existence of subject-matter jur isdiction over this dispute. Th e parties have fully briefed this alternative jurisd ictional issue both here and in the district court and “we have an independent obligation to determine whether subject-mat ter jurisdiction exists.” Collins v. Daniels , 916 F.3d 1302, 1314 (1 0th Cir. 2019) (in ternal quotation marks omitted). In district court, the governmen t challenged the district court ’s subject-matter jurisdiction on two grounds: (1) plaintiffs failed to demonstr ate analogous tort liability under New Mexico state law, as required by 28 U.S.C. § 1346(b)(1); and6 (2) plaintiffs’ allegations faile d under the “discretionary fun ction exception” to the FTCA, see id. § 2680(a). Both issues implicat e the district court’s subject -matter jurisdiction because both are c onditions on the government’s wa iver of its sovereign immunity. See Garling v. U.S. Envtl. Prot. Agency , 849 F.3d 1289, 1294-95, 1299 & n.6 (10th Cir. 2017) ( discussing jurisdictio nal nature of discr etionary function exception); Dorking Genetics v. United States , 76 F.3d 1261, 1264 (2d Cir. 1996) (noting jurisdictional nature o f analogous tort liability under § 1346(b)). The parties fully briefed both issues. Given its dismissal bas ed on analogous tort liability, the district cour t declined to consider whether the discretionary function exception applied. See Aplt. App., Vol. II at 474. The government now reasserts this alternate jurisdictional issue on appeal. Plaintiffs have resp onded to the government’s argument in their reply brief. The “discretionary function excep tion poses a jurisdictional p rerequisite to suit, which the plaintiff must ult imately meet as part of his o verall burden to establish subject matter jurisdiction.” Garcia v. U.S. Air Force , 533 F.3d 1170, 1175 (10th Cir. 2008) (internal quota tion marks omitted). To determ ine whether agency action falls within this FTCA ex ception, we apply a two-part te st. See Garling , 849 F.3d at 1295. “First, we dete rmine whether the conduct was discretionary— whether it was a matter of judgm ent or choice for the acting em ployee.” Id. (internal quotation marks omitted). In re aching this determination we as k whether “a federal statute, regulation, or policy specifically presc ribes a course of action for an employee to follow.” Id. (internal quotation marks om itted). If so, “the employee7 has no rightful option but to adhe re to the directive,” and the conduct is not discretionary. Id. (internal quotation marks omitted). But to avoid dismissal based on the discretionary function exce ption, the mandatory duty the government a llegedly breached must also bear a causal relationship to plaintiffs’ injuries. See, e.g., Franklin Sav. Corp. v. United States , 180 F.3d 1124, 1133 (10th Cir. 19 99) (stating FTCA complaint di d not avoid discretionary function exception wh ere, assuming directive to p repare case memoranda weighing alternatives created mandatory duty, complai nt failed to “attribute any harm to the brea ch of a specific mandate to draf t memoranda, as opposed to a failure to perform t he discretionary function of w eighing options”); cf. Berkovitz ex rel. Berkovitz , 486 U.S. 531, 537 (1988) (“[ T]he discretionary function exception insulates the G overnment from liability if the action challenged in the case involves the permissible exerci se of policy judgment.” (emphasi s added)). “Second, if the conduct was dis cretionary, we consider whether it required the exercise of judgment based on c onsiderations of public policy.” Garling , 849 F.3d at 1295 (internal quotation marks om itted). “If both elements are met, the governmental conduct is protected by a discretionary function, and sovereign immunity bars a claim that involves such conduct.” Id.
1. Discretionary Nature of the Alleged Conduct As a general matter, law enforce ment decisions surrounding the investigation and prosecution of crimes, incl uding “whether or not to disclos e information regarding potential threats,” i nvolve the exercise of discretio n. Gonzalez v. United8 States , 814 F.3d 1022, 1028 (9th Cir. 2016). In addition, “the decis ion to use informants is a discretionary f unction” in which the government must take into account that “informant s do not come free of c riminal history.” Ostera v. United States, 769 F.2d 716, 718 (11th Cir. 1985) (per curiam). Notwi thstanding these general principles, plaintiffs i dentify six specific regulation s or policies that they assert created a mandatory duty in their case: (1) a requireme nt in the DEA’s guidelines and Attorney General policy to obtain approval from the lead state prosecutor before establishing an informant; (2) instructions “ clearly outlined in DEA policy” requiring agents to avoi d endangering or causing injury to others, Reply Br. at 3; (3) a requirement in DEA policy to conduct a risk assessm ent and make a suitability determination before employing an informant; (4) “D EA policy regarding informant handling and standards of conduct, the [Attorney Gene ral] Guidelines regarding use of informants, and New Mexico State law,” id. at 4; (5) Attorney General Guidelines that prohibit agents from using a confidenti al informant in ways that would violate court-imposed conditions of supervision; and (6) procedures requiring on-going progress repor ts to the state prosecutor con cerning an informant’s cooperation with the DEA. 2 Having carefully considered each of these policies, we conclude that each fails to circ umvent the discretionary functi on exception. The

2 Plaintiffs also direct us to a total of “16 allegations of po licy breaches” that can be found in their first amended complaint and their di strict court response to the government’s motion. Reply B r. at 6. Any argument based o n these additional instances has been ins ufficiently briefed a nd therefore waived. See Fulghum v. Embarq Corp. , 785 F.3d 395, 410 (10th Cir. 2015).9 identified policies either are i nsufficiently sp ecific to estab lish the required mandatory duty or plaintiffs hav e failed to plausibly allege sp ecific facts showing that the asserted policy violati on resulted in their injuries.
2. Public Policy Considerations The second element of the discr etionary function exception is a lso met here. The government’s decisions about whether to use Mr. Quintana as an informant, how to best supervise him in order to protect the public, and wheth er to notify others about dangers he might pose “re quired the exercise of judgment based on considerations of public policy.” Garling , 849 F.3d at 1295 (i nternal quotation marks omitted). As the Ninth Circuit has explained: [A]ny agent choosing whether to disclose information must weigh the credibility and seriousness of the threatened criminal activity against the possible risks—to an informant , if disclosure might reveal his cooperation with the government; to an inte nded victim, if disclosure might put him in greater danger; to other potentia l victims, if disclosure might also endanger them; or to ongoing investiga tions, if disclosure might jeopard ize their success. These considerations sur ely implicate social, economic , and political judgments. Gonzalez , 814 F.3d at 1033. Similar policy-based considerat ions, weighing factors such as the risks of disclosure of informants and op erations and jeopardizing the su ccess of investigations against public s afety, apply not only to the gov ernment’s duty to notify potential victims of harms but a lso to decisions concerning whe ther to employ a particular informant and the appr opriate measures to be taken t o protect the public from potential harm caused by government informants.10 CONCLUSION We affirm the district court’s order denying plaintiffs’ Rule 59(e) motion. Plaintiffs’ motion to certify que stions of state law to the New Mexico Supreme Court is denied.

Entered for the Court

Allison H. Eid Circuit Judge