UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MOHAMMAD ABED AWAD, Plaintiff - Appellant,

v. UNITED STATES OF AMERICA, Defendant - Appellee. No. 18-2159 (D.C. No. 1:15-CV-00373-MV-CG) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , O’BRIEN , and MATHESON , Circuit Judges.

________________ _________________ Mohammad Abed Awad appeals from th e dismissal of his claims for negligence, false arrest, and false impr isonment brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346( b)(1) and 2671-2680. We affirm.
I On February 20, 2012, an undercove r officer with the Albuquerque Police Department (APD) purchased a controlled s ubstance from an individual working at a

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 10, 2020 Christopher M. Wolpert Clerk of Court2 smoke shop owned by Awad. The transact ion was recorded on video, and according to the APD officer’s report, the seller “appeared to be Mohammed Awad.” Aplt. App. at 44. Two years later, in Marc h 2014, two federal agents with the Drug Enforcement Administration (DEA) review ed the video, identified Awad as the seller, and applied for search warrants. 1 On March 20, 2014, after obtaining a warrant, DEA agents executed a search warr ant for Awad’s resi dence and arrested him without a warrant. A grand jury later indicted him on a single count of distributing a controlled subs tance analogue, and he was incarcerated from the date of his arrest, March 20, 2014, until Se ptember 9, 2014, when the government dismissed the charge because the seller in the video wa s actually Awad’s brother, Belal Awad. On September 17, 2014, Bela l (who resembles Awad) was indicted for distribution of a controlled substance analogue based la rgely upon the video. The supporting affidavit in that case identified Belal, not Awad, as the person in the video. 2 See Aplt. App. at 34-35 (Special Agent S. H. Aff.); id. at 208 (Dist. Ct. Order at 3); see also Aplee. Br. at 3-4 (acknowledging th e transaction involved Belal, not Awad).

1 According to the supporting affidavit, the APD undercover officer believed Awad was the individual with whom he made contact in the store; after reviewing the video, the two DEA agents did as well.

2 The supporting affidavit in Belal’s case indicates his uncle id entified Belal as the salesman of the tr ansaction from still phot os of the video. See Aplt. App. at 35. The district court ultimately dismisse d Belal’s case without prejudice. See United States v. Belal Awad , No. 14-CR-3611-MCA (D. N.M. Feb. 17, 2015).3 Based on these facts, Awad brought th is FTCA action against the United States, asserting negligence, false arrest, and false impris onment. The premise for all three claims was his allegation that the DE A agents incorrectly identified him as the seller in the video. As he would have it, the agents violated DEA policies by executing a warrantless arrest without probable cause. The government sought dismissal unde r Fed. R. Civ. P. 12(b)(1), or, alternatively, summary judgment under Fed. R. Civ. P. 56. It c ontended the district court lacked subject matter jurisdiction because all three cl aims fell under the discretionary function exception to the FTCA ’s waiver of sovereign immunity. It also argued that the false ar rest and false imprisonment cl aims did not fall under the FTCA’s separate waiver for enumerat ed intentional torts committed by law enforcement officers. According to th e government, the false arrest and false imprisonment claims were based on the DE A agents’ misidentification of Awad as the seller, which alleged ne gligence, but not intenti onally tortious conduct. A report and recommendation from a magistrate judge recommended dismissing all three claims under the discreti onary function exception. The district judge decided the discretionary functi on exception barred Awad’s negligence claim and the false arrest and false imprisonment claims did not fall under the waiver of sovereign immunity for intentional torts co mmitted by law enforcement officers. The latter because Awad did not allege the DEA agents intentionally misidentified him or arrested and incarcerated him in spite of knowing he was not the seller. Looking to the facts alleged rather than the “intenti onal” labels Awad assigned to the motives4 and acts of the agents, the district judge concluded these alle gations amounted to negligence or recklessness at most, and therefore, the government was entitled to summary judgment. Awad appealed.
II
A. Standard of Review A district court must convert a moti on to dismiss under Fed. R. Civ. P. 12(b)(1) to a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or a motion for summary judgment under Fed. R. Civ. P. 56 “if the jurisdictional question is intertwined with the merits of the plaintiff’s case.” Bell v. United States , 127 F.3d 1226, 1228 (10th Ci r. 1997) (brackets and intern al quotation marks omitted). “Whether the discretionary-function excep tion applies is such a question.” Franklin Sav. Corp. v. United States , 180 F.3d 1124, 1129 (10th Cir. 1999). The judge correctly treated the govern ment’s dispositive motion as a motion for summary judgment under Rule 56. See Garcia v. U.S. Air Force , 533 F.3d 1170, 1174, 1175 (10th Cir. 2008). We review the judge’s “determination of the applicability of the discretionary function exception de novo, considering the allegations in the complaint as well as the evidence in th e record.” Id. Summary judgment is appropriate if “there is no ge nuine dispute as to any materi al fact and the movant is entitled to judgment as a matter of law.” Fe d. R. Civ. P. 56(a).
B. Discretionary Function Exception “[T]he FTCA waives sovereign immun ity for certain state law tort claims against the United States.” Garling v. U.S. Envtl. Prot. Agency , 849 F.3d 1289, 12945 (10th Cir. 2017). However, several types of claims are excepted from the waiver of sovereign immunity, incl uding claims involving disc retionary functions. See 28 U.S.C. § 2680(a). Under the discretiona ry function exception, the United States retains sovereign immunity for: [a]ny claim . . . based upon the exerci se or performance or the failure to exercise or perform a di scretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. Id. ; see also Garling , 849 F.3d at 1295. The discre tionary function “exception marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to pr otect certain governmental activ ities from exposure to suit by private individuals.” Elder v. United States , 312 F.3d 1172, 1176 (10th Cir. 2002) (internal quotation marks omit ted). “Because the exception applies whether or not the discretion involved was abused, it is irrelevant whether the government employees were negligent.” Id. (brackets and internal que stion marks omitted). “To determine whether the discretiona ry function exception applies to the challenged conduct, this circuit em ploys the two-pronged test of Berkovitz v. United
States , 486 U.S. 531, 536 (1988).” Id. We first ask whether the conduct is discretionary, that is, whet her “it involves an element of judgment or choice.” Berkovitz , 486 U.S. at 536. “[T]he discreti onary function exception will not apply when a federal statute, regulation, or polic y specifically prescribes a course of action for an employee to follow.” Id. “Second, if the conduct was discretionary, we consider whether it required the exercise of judgment ‘based on considerations of6 public policy.’” Garling , 849 F.3d at 1295 (quoting Berkovitz , 486 U.S. at 537); see Elder , 312 F.3d at 1181 (“Only deci sions susceptible to polic y analysis are protected by the exception.” (internal quotation marks om itted)). This el ement furthers the goal of the exception, which is “to prevent judicial second guessi ng of legislative and administrative decisions grounded in so cial, economic, and po litical policy through the medium of an action in tort.” Elder , 312 F.3d at 1176 (int ernal quotation marks omitted). If both prongs of the Berkovitz test are satisfied, th e discretionary function exception applies, the court lacks juri sdiction, and the claim is barred.
C. Intentional Torts & the Law Enforcement Proviso There is another exception to the FT CA’s sovereign immunity waiver for certain intentional torts, including fa lse arrest and false imprisonment. See 28 U.S.C. § 2680(h). 3 But, as sometimes happens, there is an exception to the exception: Congress included a proviso waiving sove reign immunity for six enumerated intentional torts “when they arise from th e ‘acts or omissions ’ of federal ‘law enforcement officers.’” Garling , 849 F.3d at 1295 (quoting § 2680(h)). “Known as the ‘law enfor cement proviso,’” Millbrook v. United States , 569 U.S. 50, 52 (2013), § 2680(h) states: “Pr ovided[] [t]hat, with regard to ac ts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to a ny claim arising . . . out of

3 28 U.S.C. § 2680(h) excludes from th e sovereign immunity waiver “[a]ny claim arising out of assault, battery, fa lse imprisonment, fals e arrest, malicious prosecution, abuse of process, libel, sl ander, misrepresentation, deceit, or interference with contract rights[.]”7 assault, battery, false impr isonment, false arrest, abuse of process, or malicious prosecution,” § 2680(h) (itali cs omitted). The law enfo rcement proviso “carved out an exception to § 2680(h)’s preservation of the United States’ sovereign immunity for intentional torts . . . that arise out of the wrongful conduct of law enforcement officers.” Millbrook , 569 U.S. at 52.
III Awad asserts claims for ne gligence, false arrest, and false imprisonment. We first evaluate his negligence claim a nd then his intentional tort claims.
A. Negligence Awad alleged the DEA agents were neg ligent in misiden tifying him as the seller in the video. He averred the arre sting DEA agent simply reviewed the 2-yearold video and identified him as the seller, even though th e Albuquerque police officer indicated in his report that the seller only “appeared to be Mohammed Awad.” Aplt. App. at 13, para. 28. He further a lleged the agents knew the smoke shop was operated by family members who resembled one another, yet the agents made the identification without having any prior enco unters to positively id entify him. Based on these general allegations, Awad claimed the government wa s liable for the agents’ negligence because they “negligently and falsely iden tified [him] as an individual who had distributed a contro lled substance . . . .” Id. at 21, para. 85. He further alleged they “negligently arrested [him] falsely,” id. , para. 86, “and thereafter negligently incarcerated [him] con tinuously for 173 consecutive days,” id. at 22, para. 87.8 This claim satisfies the first prong of the Berkovitz test because the manner in which law enforcement agents conduct th eir investigation and identify suspects involves elements of judgment or choice. See Garling , 849 F.3d at 1296 (holding that investigation by Envi ronmental Protection Agency was discretionary); see also Mesa v. United States , 123 F.3d 1435, 1438 (11th Cir. 1997) (“We readily conclude that the decisions regarding how to locat e and identify the subj ect of an arrest warrant and regarding whether the person apprehended is in fact the person named in the warrant are discretionary in nature and involve an element of judgment or choice.”). Indeed, the record contains undi sputed evidence that the investigation and identification of suspects is within the discretion of DEA case agents and their supervisors. Aplt. App. at 73-74, para. 12 (Williams Decl., DEA Chief of Operations). Agents have discretion to choose which “inquiries to undertake—and the inquiries that are suffici ent—to identify a suspect.” Id. at 74, para. 14. They also “must consider the unique facts of each case, balance competing investigative priorities, and apply their pr ofessional knowledge and expe rience to iden tify suspects from their investig ative activities.” Id. Awad disputes this conclusion, citing three specific DEA policies requiring probable cause to effect an ar rest or file a criminal comp laint, but these policies are inapposite. 4 Of course, probable cause is a c onstitutional requirement of any arrest, but Awad cites nothing that requires DEA agen ts to follow a “prescribe[d] course of

4 Awad relies on the DEA Agents Manua l §§ 6641.12, 6641.13, and 6641.15. See Aplt. App. at 37, 79.9 action” in gathering probable cause and identifying a suspect, Berkovitz , 486 U.S. at 536. Indeed, deciding whether probable cause has been established involves discretion and judgment; the requirement fo r probable cause to exist does not make the ultimate, evaluative d ecision non-discretionary. Cf. Taitt v. United States , 770 F.2d 890, 893 (10th Cir. 1985) (recognizing that statut ory requirement for entry into the witness protection program is a disc retionary determinati on). Even if they were mistaken, the DEA agents made a di scretionary determination that probable cause to arrest Awad existe d. Awad’s insistence that their initial evaluation was wrong does not inform this debate; it is irrelevant to our analysis. See Duke v. Dep’t of Agric. , 131 F.3d 1407, 1410 (10th Cir. 1997) (“[I]n appl ying the discretionary function exception we do not consider wh ether the decision or nondecision was negligent or wrong.”). This claim also satisfie s the second prong of the Berkovitz test. The record indicates the decision whether to investigat e, as well as deci sions concerning the nature and extent of an investigation, ar e subject to economic , political, and social policy considerations. Aplt. App. at 74, para. 15 (Williams Decl.). Among other things, DEA agents must acc ount for social policy consid erations such as whether and what type of weapons to use, the type s of investigative t echniques that may be appropriate, the surveillance me thods that would be most ef fective, and how to best and most safely execute warrants. Id. They must economica lly balance their limited resources among competing i nvestigations and sometime s, as was the case here, conduct joint investigations with other law enforcement agencies. See id. at 74-75,10 para. 16. These collaborative investig ation arrangements, moreover, manifest political policy considerations, pa rticularly to ensure comity with other federal, state, and local law enforcement agencies. See id. at 75, para. 17. Indeed, other courts have recognized that these investigative decisions, which include the process of verifying a suspect’s iden tity, “‘are rooted in po licy considerations.’” Milligan v. United States , 670 F.3d 686, 694 (6th Cir. 2012) (quoting Mesa , 123 F.3d at 1439). Awad’s negligence claim is barred by th e discretionary function exception.
B. Intentional Torts—False Arrest & False Imprisonment “[A] plaintiff may not ‘recast a negligence tort as an intentional tort to take advantage of the law enforcemen t exception to § 2680(h).’” Garling , 849 F.3d at 1298 (quoting Milligan , 670 F.3d at 696). “In determin ing whether [a plaintiff’s] claims fall within the law enforcement proviso, we look to the substance of their claims and not how they labele d them in their complaint.” Id. If a “complaint attempts to bring intentional tort claims without alleging intentional tort facts,” the law enforcement proviso will not apply. Id. Awad’s amended complaint is devoid of any facts suggesting intentionally tortious conduct. His false arrest claim avers he was arrested “based on the false identification of [him] as th e individual who had distributed a controlled substance.” Aplt. App. at 22-23, para. 94. Similarly, his false imprisonment claim alleges he was incarcerated “for 173 consecutive days . . . based on [the] fals e identification.” Id. at 23, para. 101. Both claims are predicated on the DEA agents’ misidentification of him as the seller in the video. But there are no allegations the DEA agents11 intentionally misidentified hi m. Nor are there any alle gations they arrested or incarcerated him knowing he was not the se ller. Although Awad summarily alleges the government confined him “knowing it had no lawful authority to do so,” id. at 24, para. 104, the only factual supp ort for this allegation is th e misidentification. As with the negligence claim, the amended complaint merely suggests (without the benefit of specific factual allegations) the a rrest and incarceration were the product of unintentional, albeit wrongful , conduct during the inves tigation; it alleges the government had a duty of care to identify the correct suspect and not arrest and incarcerate Awad based on a mistaken (which he conveniently la bels as “false”) identification. These allegations predi cate liability on neg ligence or, at most, recklessness, but not intentional conduct. See Garling , 849 F.3d at 1298. The law enforcement proviso does not apply to th ese false arrest a nd false imprisonment claims. Moreover, the discretionary function excep tion bars these claims because they are based solely on the DEA agents’ a lleged negligence in conducting their investigation and identifying Awad as the seller. We have already discussed the discretionary nature of that process a nd the policy considera tions attending it. Awad’s attempt to recast his negligence al legations in intentional-tort terms is unavailing. Consequently, the district cour t lacked jurisdiction over the false arrest and false imprisonment claims. 5

5 Awad’s failure to allege intentionally tortious conduct obviates any need to consider the interaction between § 2680(a) and § 2680(h). See Garling , 849 F.3d at12 IV Awad’s negligence claim is barred by the discretionary function exception to the FTCA’s waiver of sovereign immun ity. Although Awad also asserts nominal claims for false arrest and false imprisonment, the subs tance of his al legations do not reflect intentionally tortious conduct and, as a consequence, they do not fall within the law enforcement proviso and are barred by the discretionary function exception. For want of jurisdiction, the district court properly dism issed the suit. The district court’s ju dgment is affirmed. Entered for the Court

Terrence L. O’Brien Circuit Judge

1298 n.5 (recognizing circuit sp lit regarding whether inten tional tort claims brought under § 2680(h) must also avoid the discre tionary function exception of § 2680(a) but declining to consider the issu e because the plaintiff failed to allege intentional tort facts); see also id. at 1298 (holding that claims nomina lly labeled as intentional torts, including “false arrest” and “false impris onment,” stemmed from allegedly negligent or reckless investigation and raid and, therefore, were barre d by the discretionary function exception).