NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY J. GORDON and VICKI 

GORDON, 

Plaintiffs-Appellants, 

 v. 

UNITED STATES OF AMERICA, 

Defendant-Appellee.

No. 16-35867 

D.C. No. 4:15-cv-05073-SAB 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Stanley Allen Bastian, District Judge, Presiding

Argued and Submitted June 13, 2018

Seattle, Washington

Before: GOULD and WATFORD, Circuit Judges, and ROTHSTEIN,** District 

Judge.

Jeffrey and Vicki Gordon appeal the district court’s dismissal of their 

malicious prosecution claim, which they brought under the Federal Tort Claims 

Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2680(h). We have jurisdiction under 28 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Barbara Jacobs Rothstein, United States District Judge 

for the Western District of Washington, sitting by designation.

FILED

JUN 26 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
U.S.C. § 1291, and we affirm.1

Approximately five years before bringing the instant claim, Jeffrey Gordon, 

along with others in Washington’s potato farming industry, was indicted on one 

count of Conspiracy to Make False Statements and Commit Fraud and one count of 

Making a False Application, in connection with his submissions to insurance 

companies that were reinsured by the federal crop insurance program, which is 

operated by the United States Department of Agriculture (“USDA”). The case 

proceeded to a jury trial, and both charges against Gordon were ultimately 

dismissed by the trial court. In the instant action, the Gordons allege that the 

United States, acting through Steve Tillotson, a Special Agent within the USDA’s 

Office of the Inspector General (“OIG”), provided incomplete, false, and 

misleading testimony to the grand jury that indicted Gordon. 

The district court properly found that it lacked subject matter jurisdiction to 

consider the Gordons’ FTCA claim. The FTCA serves as a partial abrogation of 

the United States’s immunity from suit, conferring jurisdiction upon district courts 

to hear allegations of tortious conduct by Government employees and agencies in 

circumstances “where the United States, if a private person, would be liable to the 

claimant in accordance with the law of the place where the act or omission 

occurred.” 28 U.S.C. § 1346(b)(1); see Millbrook v. United States, 569 U.S. 50, 52 

 

1 The Gordons’ Motion to Take Judicial Notice is hereby granted.
(2013). An FTCA plaintiff bears the initial burden of demonstrating that its claims 

fall within § 1346(b)(1)’s general waiver of immunity. Faber v. United States, 56 

F.3d 1122, 1124 (9th Cir. 1995). Even where a plaintiff meets this burden, its 

claims may nevertheless be barred by one of the Act’s many exceptions. 28 U.S.C. 

§ 2680(a). The United States bears the burden of proving the applicability of any 

FTCA exception. Prescott v. United States, 973 F.2d 696, 701-02 (9th Cir. 1992). 

Where any of § 1346(b)(1)’s elements have not been met—and/or where an 

exception applies—the Government has not waived its immunity, and the court 

lacks subject matter jurisdiction and must dismiss the case. Sabow v. United States, 

93 F.3d 1445, 1451 (9th Cir. 1996), as amended (Sept. 26, 1996). 

Here, the Gordons failed to sufficiently allege a claim of malicious 

prosecution. See Gem Trading Co. v. Cudahy Corp., 603 P.2d 828, 832 (Wash. 

1979).2 The Gordons failed to point to any of Tillotson’s testimony, let alone the 

portions of his testimony that they consider false or misleading. Additionally, it is 

the role of the prosecutor—and not the witness—to elicit testimony and otherwise 

 

2 To maintain an action for malicious prosecution in Washington, “the plaintiff 

must allege and prove (1) that the prosecution claimed to have been malicious was 

instituted or continued by the defendant; (2) that there was want of probable cause 

for the institution or continuation of the prosecution; (3) that the proceedings were 

instituted or continued through malice; (4) that the proceedings terminated on the 

merits in favor of the plaintiff, or were abandoned; and (5) that the plaintiff 

suffered injury or damage as a result of the prosecution.” Gem Trading Co., 603 

P.2d at 832 (quoting Peasley v. Puget Sound Tug & Barge Co., 125 P.2d 681, 687 

(Wash. 1942)).
present evidence to the grand jury. Cf. Moore v. Valder, 65 F.3d 189, 196-97 

(D.C. Cir. 1995); Gray v. Bell, 712 F.2d 490, 516 (D.C. Cir. 1983). Thus, the 

Gordons failed to meet their burden of establishing that their claim falls within § 

1346(b)(1)’s general waiver of immunity, and the district court lacked subject 

matter jurisdiction to consider their claim. See Faber, 56 F.3d at 1124.

Additionally, Tillotson’s conduct in investigating Gordon’s alleged 

fraudulent activity is protected by the FTCA’s discretionary function exception. 

The discretionary function exception prohibits claims “based upon 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,” 28 U.S.C. § 2680(a), and applies where the 

complained of conduct involves an element of judgment or choice and is grounded 

in public policy. Terbush v. United States, 516 F.3d 1125, 1129 (9th Cir. 2008) 

(citing United States v. Gaubert, 499 U.S. 315, 322 (1991)); Berkovitz v. United 

States, 486 U.S. 531, 536 (1988). Tillotson’s actions during his investigation were 

done pursuant to the broad discretion afforded to OIG agents by the Inspector 

General Act, 5 U.S.C. app. 3 § 6, the Agriculture and Food Act, 5 U.S.C. app. 4 § 

4(d), and OIG’s implementing regulations, 7 C.F.R. pt. 1a. Accordingly, the 

district court properly determined that the Gordons’ claim is barred by the 

discretionary function exception. See, e.g., Berkovitz, 486 U.S. at 536; Gaubert, 
499 U.S. at 324; Gonzalez v. United States, 814 F.3d 1022 (9th Cir. 2016); Sabow, 

93 F.3d at 1451; Vickers v. United States, 228 F.3d 944, 951 (9th Cir. 2000).

The district court properly considered evidence outside the pleadings in 

ruling on the Government’s Rule 12(b)(1) motion to dismiss. See McCarthy v. 

United States, 850 F.2d 558, 560 (9th Cir. 1988) (“[W]hen considering a motion to 

dismiss pursuant to Rule 12(b)(1) the district court is not restricted to the face of 

the pleadings, but may review any evidence, such as affidavits and testimony, to 

resolve factual disputes concerning the existence of jurisdiction.”); see also Land v.

Dollar, 330 U.S. 731, 735 n.4 (1947) (“[W]hen a question of the District Court’s

jurisdiction is raised ... the court may inquire by affidavits or otherwise, into the

facts as they exist.”); cf. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 

2009). Specifically, the district court properly considered Tillotson’s declaration 

and grand jury testimony—as well as the declaration submitted by the Gordons—

and did not err in declining to convert the Rule 12(b)(1) motion to dismiss into a 

Rule 56 motion for summary judgment. See, e.g., Green v. United States, 630 F.3d 

1245,1248 n.3 (9th Cir. 2011); Robinson, 586 F.3d at 685; Kingman Reef Atoll 

Investments, L.L.C. v. United States, 541 F.3d 1189, 1193 (9th Cir. 2008); 

Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983).

AFFIRMED.