UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

MINOR JGE, 7 year old minor through 

next friend Peter Tasso, Esq.; GABRIELA 

GALLEGOS; JOLENE ESTRADA, in her 

personal 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 Supervisor (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) Drug 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 Court
2 

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 individual 

defendants under Bivens v. Six Unknown Named Agents of Federal Bureau of 

Narcotics, 403 U.S. 388 (1971). The district court dismissed the individual 

defendants and granted the United States’ motion for judgment on the pleadings. It 

then denied plaintiffs’ Fed. R. Civ. P. 59(e) motion to alter or amend the judgment. 

Plaintiffs appeal the denial of their Rule 59(e) motion. We have jurisdiction under 

28 U.S.C. § 1291, and we affirm. 

BACKGROUND

 The tragic facts of this case are described in plaintiffs’ first amended 

complaint. In 2012 and 2013 Edward Quintana molested JGE and murdered JGE’s 

father, Jason Julian Estrada. At the time Mr. Quintana took these actions he was 

registered as a confidential informant for the Drug Enforcement Administration 

(DEA). 

 * After examining the briefs and appellate record, this panel has 

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 submitted without oral argument. This 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, however, for its persuasive 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 state authorities 

after a search warrant executed at his home uncovered drugs and stolen handguns. 

After his arrest and release from custody the DEA registered him as an active 

informant. He remained registered as an informant until April 4, 2013. As part of 

Mr. Quintana’s agreement with the DEA the defendants “controlled the evidence and 

the status and direction of the State of New Mexico charges” against him. Aplt. 

App., Vol. I at 24 ¶ 83 (emphasis omitted). At the time the DEA engaged him as an 

informant, Mr. Quintana’s criminal record reflected his violent propensities.1

 

 In August 2012, during the period in which he was acting as an informant, 

Mr. Quintana and his family moved into the residence of Jason Estrada and his 

family, with the Estrada family’s permission. Plaintiffs allege the DEA was aware or 

should have been aware of Mr. Quintana’s residential location and circumstances. 

For its part, the Estrada family was unaware that Mr. Quintana was serving as a DEA 

informant. Nor did the government warn the family of his violent nature or history. 

 Within a month, Mr. Quintana began sexually abusing Jason Estrada’s minor 

son, JGE, who was then five years old. The abuse continued until February 20, 2013, 

when Mr. Quintana and his family moved out of the Estrada residence. 

 1

 Mr. Quintana’s criminal record includes “Domestic Violence, Battery 

upon a Household Member, Child Abuse, False Imprisonment, Battery upon a 

Household Member with a Firearm, Attempted Murder, Kidnapping, Conspiracy, 

Felon in Possession of a Firearm . . . Trafficking a Controlled Substance, Receiving 

or Transferring a Stolen Firearm, and threats of Battery and Arson.” Aplt. App., Vol. 

I at 33-34 ¶ 146. 
4 

 Several weeks later, JGE informed his parents about the molestation. Jason 

Estrada sought information from mutual friends and associates of Mr. Quintana about 

Mr. Quintana’s abusive behavior toward his son. Mr. Quintana apparently learned of 

Mr. Estrada’s inquiries. On April 3, 2013, Mr. Quintana and two other men travelled 

to the Estrada residence. In the presence of JGE, they beat and shot Jason Estrada, 

who died from his injuries. Approximately one day later, “the United States and the 

Defendants deactivated DEA Informant Edward Quintana.” Id. at 33 ¶ 141. 

 Plaintiffs thereafter brought this action against the United States and the 

individual DEA defendants. The district court granted the individual defendants’ 

motion to dismiss based on qualified immunity. It further determined the FTCA 

claims should be dismissed because plaintiffs had failed to identify an analogous duty 

under New Mexico law that would require a private person under comparable 

circumstances to protect plaintiffs from the harms they experienced from 

Mr. Quintana. Among other points, the district court reasoned that “Plaintiffs’ 

existence and harm were not reasonably foreseeable to the DEA,” id., Vol. II at 483, 

and “the DEA could not have reasonably foreseen the terrible tragedy that befell 

Plaintiffs, and so could not have imposed any conditions on Quintana’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 Mexico imposes a duty to protect others from harm 

even in the absence of foreseeability, when the duty arises from a special 
5 

relationship. After obtaining supplemental briefing on that issue, the district court 

denied the motion. 

DISCUSSION

 Plaintiffs’ notice of appeal designates only the district court’s order denying 

their Rule 59(e) motion. Aplt. App., Vol. 3 at 633. This court’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 district court abused its discretion, in light of Rule 

59(e)’s function “to correct manifest errors of law or to present newly discovered 

evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). Under the 

circumstances of this appeal, however, we find it unnecessary to conduct that inquiry. 

Even if we were to find an abuse of discretion, a remand for further proceedings 

would be futile because plaintiffs have failed to satisfy their burden to establish the 

existence of subject-matter jurisdiction over this dispute. The parties have fully 

briefed this alternative jurisdictional issue both here and in the district court and “we 

have an independent obligation to determine whether subject-matter jurisdiction 

exists.” Collins v. Daniels, 916 F.3d 1302, 1314 (10th Cir. 2019) (internal quotation 

marks omitted). 

In district court, the government challenged the district court’s subject-matter 

jurisdiction on two grounds: (1) plaintiffs failed to demonstrate analogous tort 

liability under New Mexico state law, as required by 28 U.S.C. § 1346(b)(1); and 
6 

(2) plaintiffs’ allegations failed under the “discretionary function exception” to the 

FTCA, see id. § 2680(a). Both issues implicate the district court’s subject-matter 

jurisdiction because both are conditions on the government’s waiver 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 jurisdictional nature of discretionary function 

exception); Dorking Genetics v. United States, 76 F.3d 1261, 1264 (2d Cir. 1996) 

(noting jurisdictional nature of analogous tort liability under § 1346(b)). 

The parties fully briefed both issues. Given its dismissal based on analogous 

tort liability, the district court 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 responded to the 

government’s argument in their reply brief. 

 The “discretionary function exception poses a jurisdictional prerequisite to 

suit, which the plaintiff must ultimately meet as part of his overall burden to establish 

subject matter jurisdiction.” Garcia v. U.S. Air Force, 533 F.3d 1170, 1175 

(10th Cir. 2008) (internal quotation marks omitted). To determine whether agency 

action falls within this FTCA exception, we apply a two-part test. See Garling, 

849 F.3d at 1295. “First, we determine whether the conduct was discretionary—

whether it was a matter of judgment or choice for the acting employee.” Id. (internal 

quotation marks omitted). In reaching this determination we ask whether “a federal 

statute, regulation, or policy specifically prescribes a course of action for an 

employee to follow.” Id. (internal quotation marks omitted). If so, “the employee 
7 

has no rightful option but to adhere to the directive,” and the conduct is not 

discretionary. Id. (internal quotation marks omitted). 

But to avoid dismissal based on the discretionary function exception, the 

mandatory duty the government allegedly 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. 1999) (stating FTCA complaint did not avoid 

discretionary function exception where, assuming directive to prepare case 

memoranda weighing alternatives created mandatory duty, complaint failed to 

“attribute any harm to the breach of a specific mandate to draft memoranda, as 

opposed to a failure to perform the discretionary function of weighing options”); cf. 

Berkovitz ex rel. Berkovitz, 486 U.S. 531, 537 (1988) (“[T]he discretionary function 

exception insulates the Government from liability if the action challenged in the case

involves the permissible exercise of policy judgment.” (emphasis added)). 

 “Second, if the conduct was discretionary, we consider whether it required the 

exercise of judgment based on considerations of public policy.” Garling, 849 F.3d at 

1295 (internal quotation marks omitted). “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 enforcement decisions surrounding the investigation 

and prosecution of crimes, including “whether or not to disclose information 

regarding potential threats,” involve the exercise of discretion. Gonzalez v. United 
8 

States, 814 F.3d 1022, 1028 (9th Cir. 2016). In addition, “the decision to use 

informants is a discretionary function” in which the government must take into 

account that “informants do not come free of criminal history.” Ostera v. United 

States, 769 F.2d 716, 718 (11th Cir. 1985) (per curiam). Notwithstanding these 

general principles, plaintiffs identify six specific regulations or policies that they 

assert created a mandatory duty in their case: (1) a requirement 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 avoid endangering or causing injury to others, Reply Br. 

at 3; (3) a requirement in DEA policy to conduct a risk assessment and make a 

suitability determination before employing an informant; (4) “DEA policy regarding 

informant handling and standards of conduct, the [Attorney General] Guidelines 

regarding use of informants, and New Mexico State law,” id. at 4; (5) Attorney 

General Guidelines that prohibit agents from using a confidential informant in ways 

that would violate court-imposed conditions of supervision; and (6) procedures 

requiring on-going progress reports to the state prosecutor concerning an informant’s 

cooperation with the DEA.2

 Having carefully considered each of these policies, we 

conclude that each fails to circumvent the discretionary function exception. The 

 2

 Plaintiffs also direct us to a total of “16 allegations of policy breaches” 

that can be found in their first amended complaint and their district court response to 

the government’s motion. Reply Br. at 6. Any argument based on these additional 

instances has been insufficiently briefed and therefore waived. See Fulghum v. 

Embarq Corp., 785 F.3d 395, 410 (10th Cir. 2015). 
9 

identified policies either are insufficiently specific to establish the required 

mandatory duty or plaintiffs have failed to plausibly allege specific facts showing 

that the asserted policy violation resulted in their injuries. 

2. Public Policy Considerations 

The second element of the discretionary function exception is also 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 whether to notify others 

about dangers he might pose “required the exercise of judgment based on 

considerations of public policy.” Garling, 849 F.3d at 1295 (internal 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 intended victim, if disclosure might put him in 

greater danger; to other potential victims, if disclosure might also endanger 

them; or to ongoing investigations, if disclosure might jeopardize their 

success. These considerations surely implicate social, economic, and 

political judgments. 

Gonzalez, 814 F.3d at 1033. 

 Similar policy-based considerations, weighing factors such as the risks of 

disclosure of informants and operations and jeopardizing the success of 

investigations against public safety, apply not only to the government’s duty to notify 

potential victims of harms but also to decisions concerning whether to employ a 

particular informant and the appropriate measures to be taken to 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 questions of state law to the New Mexico Supreme Court 

is denied. 

Entered for the Court 

Allison H. Eid 

Circuit Judge