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Simmons v. United States



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED

BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 10 th day of April, two thousand

nineteen.

PRESENT: DENNIS JACOBS,

REENA RAGGI,

GERARD E. LYNCH,

Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

AYANA SIMMONS, individually and on behalf of the

estate of Idrissa Camara, Aisha Camara, Moussa Camara,

and Djeneba Camara,

Plaintiff

‐ Appellant,

‐ v. ‐ 18

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UNITED STATES OF AMERICA,

Defendant

‐ Appellee.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X2 FOR PLAINTIFF

‐ APPELLANT: ALISON FRICK (Andrew G. Celli,

Jr., on the brief), Emery Celli

Brinckerhoff & Abady LLP, New

York, NY.

FOR DEFENDANT

‐ APPELLEE: ANDREW E. KRAUSE, Assistant

United States Attorney (Christopher

Connolly, Assistant United States

Attorney, on the brief), for Geoffrey

S. Berman, United States Attorney

for the Southern District of New

York, New York, NY.

Appeal from a judgment of the United States District Court for the

Southern District of New York (Nathan, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED

.

Ayana Simmons, the widow of a security guard in a federal building,

appeals the dismissal of her suit against the United States following the fatal

shooting of her husband, Idrissa Camara, by a disgruntled former Department of

Labor (“DOL”) employee in August 2015. Simmons argues that the government

negligently failed to warn Camara of the disgruntled employee, and that this

negligence exempts the government from the discretionary function exception

(“DFE”) to the waiver of sovereign immunity contained in the Federal Tort

Claims Act (“FTCA”). We accept the facts as pleaded in the complaint and

assume the parties’ familiarity with the procedural history and the issues

presented for review.

Kevin Downing, the shooter, was fired from the DOL office located at 201

Varick Street, the federal office building where Camara worked as a lobby3 security guard. He was employed by FJC Security Services, Inc. (“FJC”), with

which the government contracted to provide building security.

Following Downing’s threats of violence against DOL and its employees,

the government requested that FJC create and staff an extra security post outside

of DOL’s offices on the eighth floor. Neither Camara nor any other lobby

security guard was notified of the threat posed by Downing. On August 21,

2015, Downing entered the lobby of 201 Varick Street, shot and killed Camara,

and then killed himself.

At oral argument, a dispute emerged as to whether the complaint may

fairly be read to allege that the government informed FJC about Downing. But as

the district court observed:

[T]he complaint does not allege

. . . that [the government] failed to

warn FJC about the threat Mr. Downing posed. In fact, the

complaint alleges instead that [the government] failed to “direct FJC

to warn Mr. Camara about Mr. Downing, or to take any additional

precautions to ensure Mr. Camara’s safety.”

J. App’x 22 (quoting Complaint ¶¶ 28, 31). We agree that the negligence alleged

in the complaint is the failure to warn Camara or to instruct FJC to warn him—

not a failure to warn FJC. Moreover, Simmons’s briefing characterizes the

negligent act as a failure to warn Camara and other frontline staff. See

Appellant’s Br. at 6 (citing Complaint ¶ 28) (“[A] security guard was posted full

‐

time on the eighth floor to protect the DOL office from Kevin Downing.”); id. at 7

(citing Complaint ¶¶ 5, 30) (“Neither Mr. Camara nor any other frontline

security officer was told

. . . .”); id. at 11 (“Plaintiff has sufficiently pled that there

was no conscious decision about whether to inform Mr. Camara or the other

security officers working in the lobby

. . . .”) (emphasis in original). Accordingly,

whether or not the government warned FJC, the only negligent acts alleged by

plaintiff are the government’s [1] failure to warn Camara and [2] failure to

instruct FJC to warn Camara.4 The FTCA waives sovereign immunity for certain damages claims. See 28

U.S.C. § 1346(b)(1). The DFE excepts from this waiver 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.” Id. § 2680(a).

The DFE applies if the challenged conduct “involves an element of judgment or

choice,” Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988), and

that judgment is “based on considerations of public policy,” id. at 537. “The

focus of the inquiry is not on the agent’s subjective intent in exercising the

discretion conferred by statute or regulation, but on the nature of the actions

taken and on whether they are susceptible to policy analysis.” United States v.

Gaubert, 499 U.S. 315, 325 (1991). Where the DFE applies, no subject matter

jurisdiction exists over the FTCA claim. Id. at 322.

When considering a dismissal for lack of subject matter jurisdiction

pursuant to Rule 12(b)(1), “we review factual findings for clear error and legal

conclusions de novo.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752

F.3d 239, 243 (2d Cir. 2014) (quoting Close v. New York, 125 F.3d 31, 35 (2d Cir.

1997)).

Simmons argues that the district court erred by placing the burden on her

(rather than on the government) to show that the DFE applies. Since we

conclude that the DFE applies to this case no matter how the burden lies, we

need not consider the argument.

Because the parties agree that the challenged action involves an element of

judgment, see Appellant’s Br. at 14 n.2; Appellee’s Br. at 12, we proceed to the

second question of whether that judgment is susceptible to policy analysis. We

conclude that it is. Simmons challenges the government’s decision to request an

additional security post outside the DOL offices on the eighth floor without

specifically notifying, or directing FJC to notify, the individuals assigned at5 various times to the lobby or other security posts. That decision entailed policy

considerations regarding expense, time

‐ management, and (most of all) the trade

‐

offs of security interests against public access to the building and panic by the

government employees at 201 Varick Street. The decision not to warn security

guards employed by FJC (or to instruct FJC to warn them) is susceptible to these

considerations as well.

Simmons characterizes the decision not to inform Camara (or instruct FJC

to inform Camara) as a negligent failure to warn that falls outside the scope of

the DFE. Simmons relies on Andrulonis v. United States, 952 F.2d 652, 655 (2d

Cir. 1991), but that case is inapposite. In Andrulonis, government lab technicians

failed to warn of unsafe laboratory conditions that resulted in an employee’s

contraction of rabies; here, the government made a decision to handle the

Downing threat by requesting an extra security guard on the eighth floor; the

inaction alleged is the failure to take additional measures. Whether

characterized as an act or as a failure to act further, that decision is susceptible to

policy analysis.

We have considered Simmons’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court