FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GINA M. GONZALEZ, personally and

as next best friend of A.F., a minor,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 13-15218

D.C. No.

4:12-cv-00375-

JGZ

OPINION

Appeal from the United States District Court

for the District of Arizona

Jennifer G. Zipps, District Judge, Presiding

Argued and Submitted

March 12, 2015—San Francisco, California

Filed February 24, 2016

Before: Marsha S. Berzon, Jay S. Bybee,

and John B. Owens, Circuit Judges.

Opinion by Judge Bybee;

Dissent by Judge Berzon
2 GONZALEZ V. UNITED STATES

SUMMARY*

Federal Tort Claims Act

The panel affirmed the district court’s Fed. R. Civ. P.

12(b)(1) dismissal for lack of subject matter jurisdiction over

this Federal Tort Claims Act (“FTCA”) case based upon the

discretionary function exception.

The discretionary function exception of the FTCA

immunizes the federal government from claims “based upon

the exercise or performance or the failure to exercise or

perform a discretionary function or duty” on the part of the

government. 8 U.S.C. § 2680(a).

Plaintiffs alleged that the FBI learned of communications

among members of the Minutemen American Defense, an

activist group that advocated against illegal immigration and

that patrolled the U.S.-Mexico border. Plaintiff’s home was

subsequently invaded and members of her family were

murdered by members of the Minutemen group. Plaintiff

alleged that the FBI negligently failed to disclose the

information about the impending home invasion to local law

enforcement, in contravention of the Attorney General’s

Guidelines for Domestic FBI Operations.

The panel held that under the Attorney General

Guidelines, the FBI’s failure to disclose information to local

law enforcement regarding a home invasion threatened by

private persons against unspecified victims constituted a

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
GONZALEZ V. UNITED STATES 3

“failure to exercise or perform a discretionary function or

duty” pursuant to § 2680(a) of the FTCA, and therefore the

discretionary function barred plaintiff’s suit. The panel also

held that the district court did not abuse its discretion in

denying plaintiff’s request for jurisdictional discovery.

Judge Berzon dissented because she would hold that the

conduct challenged here – the FBI’s failure to disclose

information to local law enforcement agencies – was not

shielded by the discretionary function exception, and she

would allow plaintiff’s claim for compensation to go forward.

COUNSEL

Thomas G. Cotter (argued) and Stanley G. Feldman,

Haralson, Miller, Pitt, Feldman & McAnally, P.L.C., Tucson,

Arizona, for Plaintiffs-Appellants.

Steve Frank (argued) and Mark B. Stern, Appellate Staff

Attorneys; Stuart F. Delery, Assistant AttorneyGeneral; John

S. Leonardo, United States Attorney; United States

Department of Justice, Civil Division, Washington, D.C., for

Defendant-Appellee.
4 GONZALEZ V. UNITED STATES

OPINION

BYBEE, Circuit Judge:

The discretionary function exception of the Federal Tort

Claims Act (“FTCA”) immunizes the federal government

from claims “based upon the exercise or performance or the

failure to exercise or perform a discretionary function or

duty” on the part of the government. 28 U.S.C. § 2680(a). 

We consider whether, under Attorney General guidelines, the

FBI’s failure to disclose information to local law enforcement

regarding a home invasion threatened by private persons

against unspecified victims constitutes a “failure to exercise

or perform a discretionary function or duty” pursuant to

§ 2680(a), barring Gonzalez’s suit. We hold that the FBI’s

decision whether or not to disclose was discretionary, and we

affirm the judgment of the district court dismissing the suit.

I

A. Factual Allegations

Plaintiffs-Appellants Gina Gonzalez and her minor

daughter, A.F. (“Gonzalez”), allege that in April 2009, the

FBI learned of communications among members of the

Minutemen American Defense, an activist group that

advocates against illegal immigration and patrols the U.S.-

Mexico border for illegal crossings.1 That month, Shawna

1 When a defendant brings a motion to dismiss under Federal Rule of

Civil Procedure 12(b)(1) and asserts that the allegations in the plaintiff’s

complaint are insufficient to establish subject matter jurisdiction as a

matter of law, we take the allegations in the plaintiff’s complaint as true. 

Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005).
GONZALEZ V. UNITED STATES 5

Forde called Ronald Wedow, another member of the

Minutemen in Arizona, and told him that she knew someone

in Arivaca, Arizona who would provide her with

“information about illegal immigrants.” Wedow passed this

information along to his friend Robert Copley, who spoke

with Forde several times over the course of that month. 

Forde told Copley that the Minutemen planned to conduct an

“operation” in Arivaca, in which they would invade a home

to steal drugs, weapons, and money.

At Forde’s request, Copley set up a meeting in Aurora,

Colorado at a Flying J truck stop to recruit individuals for the

operation. But Copley, unbeknownst to Forde, had contacts

at the FBI. And after setting up the Aurora meeting, Copley

informed his FBI contact, Agent Chris Andersen, of the

meeting. He asked Agent Andersen to send an undercover

FBI agent to the meeting. Andersen declined, but instructed

Copley to attend, gather information, and report back.

The meeting in Aurora took place on May 15, 2009. 

Forde, Copley, Wedow, and several others attended. Forde

described her plan to invade a home in Arivaca, which she

believed to be a crossroads for drug and weapons trafficking,

for the purpose of “securing” it and stealing contraband that

she suspected would be inside. She explained that her plan

involved forming two “crews”: the first to “secure” the

residents of the home, and the second to steal the drugs,

weapons, and cash. She then drew a map of the area where

the target home was located.

Following the meeting, Copley reported to Agent

Andersen. He informed Agent Andersen of Forde’s plan to

“secure” the residents of the home, explaining that “securing”

meant “hitting the house like a SWAT team . . . going in
6 GONZALEZ V. UNITED STATES

armed.” Copley told Andersen that he considered the threat

posed by the planned invasion to be “real and imminent.” He

also provided Andersen with the map showing the

approximate area of the attack. Gonzalez alleges that

Andersen provided the map to the Phoenix FBI office but that

the map was lost in Phoenix. She also alleges that the FBI

never alerted local law enforcement in Arivaca—the Pima

County Sheriff’s Department—of any of this information.

Fifteen days after the Aurora meeting, on May 30, 2009,

three masked intruders entered Gonzalez’s home in Arivaca

in the early morning hours. They fatally shot Gonzalez’s

husband, Raul Flores, in view of Gonzalez and their nineyear-old daughter, B.F. They then wounded Gonzalez,

shooting her in the shoulder and leg. Finally, a gunman

reloaded his weapon and shot B.F. in the face, killing her

instantly. The intruders withdrew from the home. Gonzalez

crawled to the next room, grabbed her husband’s handgun,

and called 911. While she was on the 911 call, a gunman

returned and attempted to shoot Gonzalez again, and

Gonzalez shot him in the leg. The intruder’s injury

eventually led to the identification, arrest, and prosecution of

the three perpetrators. One of them was Shawna Forde.

B. Proceedings

Gonzalez filed a complaint in U.S. District Court for the

District of Arizona on behalf of herself and her surviving

daughter, A.F., who was at her grandmother’s house at the

time of the attack. The complaint alleged that the United

States is liable under the FTCA for damages arising out of the

attack because the FBI negligently failed to disclose the

information about the impending home invasion to local law

enforcement, in contravention of the Attorney General’s
GONZALEZ V. UNITED STATES 7

Guidelines for Domestic FBI Operations (“Guidelines”). 

Section VI(C)(2) of these Guidelines provides that the FBI

“shall promptly transmit” to local law enforcement

information concerning “serious criminal activity not within

the FBI’s investigative jurisdiction,” unless disclosure would

compromise an ongoing investigation, endanger others, or

reveal privileged information. Gonzalez and A.F. sought

damages for the wrongful death of Raul Flores and B.F. 

Gonzalez also sought damages for her own personal injuries,

pain, and suffering.

The United States filed a motion to dismiss, arguing,

among other things, that the court lacked subject matter

jurisdiction over this FTCA case because of the discretionary

function exception. The district court granted the motion to

dismiss for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1). The court denied

Gonzalez’s request for jurisdictional discovery as futile. 

Gonzalez v. United States, No. CV 12-00375, 2013 WL

308762, at *7–8 (D. Ariz. Jan. 25, 2013). Gonzalez filed a

timely appeal to this court.

II

The FTCA authorizes private suits against the United

States for damages for loss of property, injury, or death

caused by the negligent or wrongful act or

omission of any employee of the Government

while acting within the scope of his office or

employment, under circumstances where the

United States, if a private person, would be

liable to the claimant in accordance with the
8 GONZALEZ V. UNITED STATES

law of the place where the act or omission

occurred.

28 U.S.C. § 1346(b)(1). The Act operates as a limited waiver

of sovereign immunity from suits for negligent or wrongful

acts of government employees, United States v. Gaubert,

499 U.S. 315, 318 n.4 (1991), which constitute “ordinary

common-law torts,” Dalehite v. United States, 346 U.S. 15,

28 (1953). See 28 U.S.C. § 2674 (the United States is liable

for tort claims “in the same manner and to the same extent as

a private individual under like circumstances”).

There are several exceptions to the FTCA. The exception

relevant for our purposes is the discretionary function

exception, which provides that the government has not

waived immunity for 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 [is]

abused.

28 U.S.C. § 2680(a). This exception “prevent[s] judicial

‘second-guessing’ of legislative and administrative decisions

grounded in social, economic, and political policythrough the

medium of an action in tort.” United States v. S.A. Empresa

de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.

797, 814 (1984). The “discretion protected by [§ 2680(a)]

. . . . is the discretion of the executive or the administrator to

act according to one’s judgment of the best course, a concept

of substantial historical ancestry in American law.” Dalehite,

346 U.S. at 34 (internal quotation marks omitted). 
GONZALEZ V. UNITED STATES 9

Accordingly, “[w]here there is room for policy judgment and

decision there is discretion.” Id. at 36. The government bears

the burden of demonstrating that the discretionary function

exception applies. GATX/Airlog Co. v. United States,

286 F.3d 1168, 1174 (9th Cir. 2002). Where the exception

applies, the United States has not waived its sovereign

immunity and we lack subject matter jurisdiction over the

claims. Id. at 1173; see United States v. Sherwood, 312 U.S.

584, 586 (1941); United States v. Park Place Assocs., Ltd.,

563 F.3d 907, 924 (9th Cir. 2009) (explaining that the FTCA

waiver of sovereign immunity is coextensive with the

conferral of jurisdiction (citing 28 U.S.C. § 1346)).

The Supreme Court has prescribed a two-part test for

determining whether the discretionary function exception

applies. Berkovitz v. United States, 486 U.S. 531, 536–37

(1988). First, courts are to ask whether the challenged action

was a discretionary one—“that is, it must involve an element

of judgment or choice.” GATX/Airlog Co., 286 F.3d at 1173

(citing Berkovitz, 486 U.S. at 536). In addition to duties

prescribed by the common law torts “of the place where the

act or omission occurred,” 28 U.S.C. § 1346(b)(1), federal

employees must follow “federal statute[s], regulation[s], or

polic[ies that] specifically prescribe[] a course of action for

an employee to follow,” GATX/Airlog Co., 286 F.3d at 1173. 

In such cases, “the employee has no rightful option but to

adhere to the directive,” and the discretionary function

exception does not apply. Id. at 1174. Thus, where conduct

violates a mandatory directive and is not “the product of

judgment or choice,” it is not discretionary. Berkovitz,

486 U.S. at 536. This step is called the “discretionary act”

prong of the discretionary function exception analysis. See

Sabow v. United States, 93 F.3d 1445, 1451 (9th Cir. 1996).
10 GONZALEZ V. UNITED STATES

If the conduct involves an element of judgment, the court

then determines “whether that judgment is of the kind that the

discretionary function exception was designed to shield.” 

Berkovitz, 486 U.S. at 536. The focus of this second step is

“not on the agent’s subjective intent in exercising the

discretion conferred by statute or regulation,” but rather “on

the nature of the actions taken and on whether they are

susceptible to policy analysis.” Gaubert, 499 U.S. at 325. 

“The decision need not actually be grounded in policy

considerations so long as it is, by its nature, susceptible to a

policy analysis.” GATX/Airlog Co., 286 F.3d at 1174

(internal quotation marks omitted). According to the Court,

“if a regulation allows the employee discretion, the very

existence of the regulation creates a strong presumption that

a discretionary act authorized by the regulation involves

consideration of the same policies which led to the

promulgation of the regulations.” Gaubert, 499 U.S. at 324. 

Thus, “[w]hen established governmental policy, as expressed

or implied by statute, regulation, or agency guidelines, allows

a Government agent to exercise discretion, it must be

presumed that the agent’s acts are grounded in policy when

exercising that discretion.” Id. We refer to this as the “policy

judgment” prong. See Sabow, 93 F.3d at 1451.

III

We begin with the first prong of the discretionary

function exception analysis, the discretionary act prong. We

first address whether the Guidelines impose upon FBI agents

a mandatory duty to disclose information to local law

enforcement. Because Gonzalez also contends that additional

discovery would have helped her show the mandatory nature

of the Guidelines, we also discuss whether the district court

abused its discretion in denying Gonzalez further discovery. 
GONZALEZ V. UNITED STATES 11

Concluding that the FBI has discretion in its investigative

decisions, we then turn to the policy judgment prong.

2

A. Discretionary Act

1. The FBI’s decision whether or not to disclose

information regarding potential threats is

discretionary

We first consider whether the challenged government

action involves discretion. There is no common law analog

in tort law. Thus, we are looking to see if there is some kind

of “federal statute, regulation, or policy [that] specifically

prescribes a course of action for an employee to follow.” 

Berkovitz, 486 U.S. at 536.

We know of no statute or regulation—and Gonzalez has

not directed us to any—that prescribes a course of action for

the FBI and its agents to follow in the investigation of crime. 

This is not surprising. The investigation and prosecution of

crime has long been a core responsibility of the executive

branch. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163

(1803) (“One of the first duties of government is to afford . . .

protection.”); see also Corfield v. Coryell, 6 F. Cas. 546, 551

(C.C.E.D. Pa. 1823) (No. 3,230) (Washington, J.) (The

fundamental privileges of citizenship include “[p]rotection by

the government”). Outside of the FTCA context, the “Court

has recognized on several occasions over many years that an

 

2

 We review de novo a dismissal for lack of subject matter jurisdiction

under the FTCA. Green v. United States, 630 F.3d 1245, 1248 (9th Cir.

2011). Denials of motions to compel discovery are reviewed for abuse of

discretion. Dichter-Mad Family Partners, LLP v. United States, 709 F.3d

749, 751 (9th Cir. 2013) (per curiam).
12 GONZALEZ V. UNITED STATES

agency’s decision not to prosecute or enforce, whether

through civil or criminal process, is a decision generally

committed to an agency’s absolute discretion.” Heckler v.

Chaney, 470 U.S. 821, 831 (1985). “This recognition . . . is

attributable in no small part to the general unsuitability for

judicial review of agency decisions to refuse enforcement.” 

Id.; see Wayte v. United States, 470 U.S. 598, 607 (1985)

(“[T]he decision to prosecute is particularly ill-suited to

judicial review. . . . [T]he Government’s enforcement

priorities, and . . . overall enforcement plan are not readily

susceptible to the kind of analysis the courts are competent to

undertake.”); see also Imbler v. Pachtman, 424 U.S. 409, 431

n.33 (1976) (preparation for indictment involves the

“obtaining, reviewing, and evaluating of evidence,” which

requires “mak[ing] decisions on a wide variety of sensitive

issues”).

Gonzalez has argued, nevertheless, that the Attorney

General has prescribed guidelines for the conduct of

investigations that supply a mandatory duty applicable to the

FBI agents involved here. Section VI(C)(2) of the Attorney

General’s Guidelines for Domestic FBI Operations governs

the FBI’s disclosure of information to local law enforcement. 

Under the portion titled “Criminal Matters Outside FBI

Jurisdiction,” the Guidelines state in relevant part:

When credible information is received by an

FBI field office concerning serious criminal

activity not within the FBI’s investigative

jurisdiction, the field office shall promptly

transmit the information or refer the

complainant to a law enforcement agency

having jurisdiction, except where disclosure

would jeopardize an ongoing investigation,
GONZALEZ V. UNITED STATES 13

endanger the safety of an individual, disclose

the identity of a human source, interfere with

a human source’s cooperation, or reveal

legally privileged information. If full

disclosure is not made for the reasons

indicated, then, whenever feasible, the FBI

field office shall make at least limited

disclosure to a law enforcement agency or

agencies having jurisdiction, and full

disclosure shall be made as soon as the need

for restricting disclosure is no longer present.

Guidelines § VI(C)(2). The district court concluded that in

spite of mandatory-soundinglanguage—“the field office shall

promptly transmit”—the Guidelines “as a whole, . . . as well

as the factors set forth for consideration, clearly refute[] the

conclusion that Guideline § VI(C)(2) mandated disclosure.” 

Gonzalez, 2013 WL 308762, at *5. The court observed that

an FBI agent must decide whether the information is credible,

whether the criminal activity is serious, and whether there is

any other reason relating to the FBI’s other operations that

counsels against transmitting the information. Id.

In our view, the district court correctly concluded that the

Guidelines do not prescribe a mandatory course of conduct

with respect to the FBI’s sharing of information with state or

local law enforcement agencies. Law enforcement officers

must regularly make judgment calls with respect to

information sharing. They must consider the source of the

information, its credibility, and the amount of detail in the

information. FBI agents, like detectives and police officers,

must evaluate whether the information requires immediate

action, deferred action, or no action at all. They have to make

myriad judgments about how the potential for future criminal
14 GONZALEZ V. UNITED STATES

activity fits the agency’s mission and enforcement priorities. 

Indeed, agents may disagree among themselves about the

significance or credibility of information they receive. None

of the answers to these questions are dictated by the Attorney

General’s Guidelines. The Guidelines provide no criteria for

determining what is “credible information” or what

constitutes “serious criminal activity.” Courts have

consistently held that where, as here, a government agent’s

performance of an obligation requires that agent to make

judgment calls, the discretionary function exception applies. 

See, e.g., Conrad v. United States, 447 F.3d 760, 765–66 (9th

Cir. 2006) (holding that where a criminal procedural rule

provided that the government “must take the defendant

without unnecessary delay” before a judge, the “exercise of

judgment” was required in determining “how much delay is

necessary”); Ochran v. United States, 117 F.3d 495, 500–01

(11th Cir. 1997) (holding that Attorney General Guidelines

for witness protection were discretionary; “[e]ven though the

Guidelines require the AUSA to arrange for the reasonable

protection of a victim who is threatened, they did not specify

how this protection is to be provided”);Kelly v. United States,

924 F.2d 355, 358, 360–61 (1st Cir. 1991) (holding that

where a DEA manual provided that any bureau chief

receiving an “allegation or complaint” indicating a possible

leak of confidential DEA information “will [i]mmediately

notify” internal security personnel, bureau chiefs had

“discretion to determine what comprised an ‘allegation’ or

‘complaint’”).

Even if an agent receives information that is credible and

suggests serious criminal activity, an agent may choose not to

disclose information based on his consideration of the

possible effects of disclosure, such as the effect of disclosure

on an informant, other individuals, or an ongoing
GONZALEZ V. UNITED STATES 15

investigation. An FBI agent must first weigh these various

considerations, each committed to his discretion, before he

“shall promptly transmit the information.” Additionally, “the

presence of a few, isolated provisions cast in mandatory

language does not transform an otherwise suggestive set of

guidelines into binding agency regulations.” Sabow, 93 F.3d

at 1453; cf. Vickers v. United States, 228 F.3d 944, 953 (9th

Cir. 2000) (concluding that a regulation requiring prompt

investigation of an allegation of misuse of Service-issued

firearms is mandatory; “although INS investigators

undoubtedly enjoy discretion in the conduct of an

investigation, this discretion does not extend to the question

of whether to report to superiors or to investigate at all an

allegation of misuse of Service-issued firearms”). Viewed in

context, mandatory-sounding language such as “shall” does

not overcome the discretionary character of the Guidelines.

Gonzalez argues that while the Guidelines permit the FBI

to make partial disclosure of information, the Guidelines do

not permit the FBI to fail to warn entirely. However, nothing

in the Guidelines supports Gonzalez’s interpretation. The

predicate for any action by an agent is a judgment that the

FBI has come into “credible information.” Only if the agent

makes that decision—a decision fraught with judgment based

on context, experience and expertise—does the Guideline

even apply. Only then do the Guidelines state that an officer

“shall promptly transmit the information.” Even then, the

Guidelines provide an exception: “except where disclosure

would” implicate any of the five circumstances listed,

suggesting that in those circumstances, disclosure is not

required. Furthermore, the Guidelines provide that if

disclosure is not made for any of those reasons, then partial

disclosure shall only be made “whenever feasible”—another

judgment call. The dissent argues that “any regulation that
16 GONZALEZ V. UNITED STATES

sets out criteria for action” requires government officials to

determine “whether those criteria are or are not satisfied,”

and that this does not render an otherwise mandatory policy

discretionary. Dissenting Op. at 34. That may be true. But

that argument ignores the specific regulations at issue here. 

The FBI’s Guidelines clearly contemplate everything from

full disclosure to partial disclosure to non-disclosure, thus

giving the agents discretion to make a “case-by-case

evaluation” regarding the need to disclose. And, as we said

in Weissich v. United States, 4 F.3d 810, 814 (9th Cir. 1993),

“A ‘case-by-case’ evaluation presumes significant officer

discretion.”3 The district court properly concluded that the

Guidelines do not prescribe a mandatory duty.

3 Cases like Tobar v. United States, 731 F.3d 938 (9th Cir. 2013), in

which officials are required to determine the existence of objective,

independentlyascertainable conditions, are inapposite here. Asthe dissent

observes, the fact that a Coast Guard enforcement manual requiring the

owner of a vessel to be compensated if there are no drugs on board and the

vessel is damaged, see Tobar, 731 F.3d at 946, does not give Coast Guard

officials “discretion” just because it requires the officials to exercise some

judgment in determining whether the conditions of the rule apply. See

Dissenting Op. at 34–35. But the dissent ignores the fact that judgments

regarding compensation to be paid to vessel owners required in Tobar and

judgments regarding what investigative evidence should be passed on to

other offices and local offices in the FBI’s Guidelines are completely

different in kind. The criteria agents must consider in determining

whether to disclose information involve exactly the kind of policy

judgments to which the discretionary function exception applies, as we

discuss in detail in Part III.B. The fact that the “structure”—the logical

form—of the Guidelines here and the Coast Guard’s manual at issue in

Tobar is “identical” does not render the Guidelines here automatically

mandatory. Dissenting Op. at 35.
GONZALEZ V. UNITED STATES 17

2. The district court did not abuse its discretion in

denying discovery

Gonzalez requested “discovery regarding the policy set

forth in the Attorney General’s Guidelines for Domestic FBI

Operations, § VI(C)(2), including any agency interpretations

of that rule and the custom and practice of how that rule is

obeyed.” The district court denied Gonzalez’s request,

concluding that the text of the Guidelines makes clear that it

permits agency discretion, and thus efforts to obtain evidence

regarding the custom and practice of how that rule is obeyed

would be futile. Gonzalez, 2013 WL 308762, at *8.

On appeal, Gonzalez contends that the district court

abused its discretion when it denied her leave to take

jurisdictional discovery. To show that she was prejudiced by

that denial, Gonzalez seeks to supplement the record with a

document called the FBI Domestic Investigations and

Operations Guide (“DIOG”), which was published in 2011. 

The DIOG provides, in relevant part:

[W]hen an employee has information that a

person . . . who is identified or can be

identified through reasonable means is subject

to a credible threat to his/her life or of serious

bodily injury, the employee must attempt

expeditiously to notify other law enforcement

agencies that have investigative jurisdiction

concerning the threat.

DIOG § 14.7.3.2.1.1 (“Threats to Intended Persons”). The

DIOG further provides that “[w]henever time and

circumstances permit, an employee’s decision not to provide

notification to another law enforcement agency in the
18 GONZALEZ V. UNITED STATES

foregoing circumstances must be approved by an ASAC or

higher.” Id. § 14.7.3.2.2. Though the 2011 DIOG was

created and published after the home invasion occurred in

2009, Gonzalez offers some evidence to suggest that the

DIOG “incorporates several older, separate policies” dating

back to 2008. Gonzalez did not raise the relevance of the

DIOG with the district court.

Absent extraordinary circumstances, we generally do not

permit parties to supplement the record on appeal. United

States v. Boulware, 558 F.3d 971, 976 (9th Cir. 2009); Lowry

v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). Gonzalez

has not demonstrated that extraordinary circumstances are

present here.

Even if we were to consider the DIOG, Gonzalez’s

prejudice argument is tenuous. To be sure, like the Attorney

General’s Guidelines, the DIOG employs some mandatorysounding language. However, granting Gonzalez the

assumption that the relevant language in this 2011 document

applied at the time of the 2009 home invasion, the DIOG is

replete with discretionary determinations. The threat must be

“credible,” and the threat must be against a “person who is

identified or can be identified through reasonable means.” 

Even if these criteria are satisfied, the employee must

“attempt expeditiously” to contact other law enforcement

agencies. This is not the language of “a specific statutory [or]

regulatory directive.” Berkovitz, 486 U.S. at 542–43. And in

this case, there is no allegation that Agent Andersen had any

specific identifying information about any potential victims. 

The complaint stated only that Copley gave Agent Andersen

a map showing the “approximate location” of the targeted

home, and gave no indication that this map afforded the FBI

“reasonable means” by which to identify the targeted victims. 
GONZALEZ V. UNITED STATES 19

Thus, even if we were to consider the DIOG, the document

does not show that Gonzalez was prejudiced by the district

court’s denial of discovery. The district court did not abuse

its discretion.

B. Policy Judgment

We turn next to the policy judgment prong of the

discretionary function exception analysis. Under this prong,

we address whether FBI decisions made pursuant to the

Guidelines are susceptible to policy judgment. We then

address whether the “design-implementation” distinction

applies here.

1. The FBI’s decision whether to disclose information is

the type of decision that Congress intended to shield

from FTCA liability

Under the policy judgment prong, we assess whether the

challenged conduct involves the exercise of policy judgment. 

In determining if the conduct involves policy judgment, we

do not look to an agent’s subjective weighing of policy

considerations. Rather, we examine the nature of the

Government’s action—or in this case, omission—and decide

whether it is “susceptible” to policy analysis under an

objective assessment. Gaubert, 499 U.S. at 325.

Because we conclude above that the Guidelines permit

discretion, a “strong presumption” arises that the FBI’s

actions were grounded in policy considerations. Id. at 324. 

Therefore, we must presume that when the FBI declined to

disclose information regarding the Minutemen threat to local

law enforcement, its actions resulted from a policy judgment. 

See, e.g., Alfrey v. United States, 276 F.3d 557, 564 (9th Cir.
20 GONZALEZ V. UNITED STATES

2002) (concluding that because “federal regulations expressly

give prison officials discretion in how to respond to reports of

threats[,] . . . . it must be presumed that the officials’ choices

in responding to the report of [an inmate’s] threat were based

in public policy”).

Even absent that presumption, the FBI conduct challenged

here clearly involves the type of policy judgment protected by

the discretionary function exception. The investigation of

crime involves policy judgments at the core of the executive

branch. In investigations, no less than prosecutions, the

executive must consider the reliability of the information, the

relative importance of the crime, and the agency’s mission

and resources. See Red Lake Bank of Chippewa Indians v.

United States, 800 F.2d 1187, 1193, 1198 (D.C. Cir. 1986)

(holding that where FBI allegedly received “warnings that

something might happen” and “failed to make adequate

plans” to prevent a violent confrontation on Native American

land, the discretionary function exception applied because

“[l]aw enforcement personnel receive warnings, rumors and

threats all the time [and] are constantly required to assess the

reliability of the information they receive, and to allocate

scarce personnel resources accordingly”). As the Guidelines

make evident, any 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. See Varig Airlines, 467 U.S. at 814. 

Thus, the FBI’s nondisclosure of information is the type of
GONZALEZ V. UNITED STATES 21

conduct to which a policy analysis could apply. See Weissich

v. United States, 4 F.3d 810, 813 (9th Cir. 1993).

Our conclusion finds support in our decision in Alfrey v.

United States. There, the wife of a prison inmate alleged that

prison officials responded negligently to threats by her

husband’s cellmate, resulting in her husband’s death. 

276 F.3d at 563–64. Specifically, she argued that the officers

failed to search the two men’s cell in a manner that would

have enabled them to find the murder weapon and failed to

run an investigatory search on the cellmate using the prison’s

computer database. Id. We concluded that both omissions

implicated social and public policy considerations. Id. at 565. 

“A prison official’s judgment about how extensivelyto search

a cell,” we explained, “involves a balancing of the potential

risk, on the one hand, against the inmate’s interest in being

free from overly intrusive searches, on the other.” Id.

Moreover, “to decide what steps to take in response to a

reported threat, an officer must set priorities among all extant

risks: the risk presented by the reported threat, along with the

other risks that inevitably arise in a prison.” Id. Our

reasoning in Alfrey applies equally to the FBI’s nondisclosure

of information. The FBI’s judgment about how to respond to

a reported threat and how extensively to disclose information

to other law enforcement organizations implicates many

risks, all of which must be weighed in accordance with the

FBI’s social and public policy judgments.

We note that our decision remains the same whether or

not Agent Andersen’s decision in fact involved the subjective

weighing of policy considerations. Gonzalez contends that

the government may be liable for Agent Andersen’s actions

if his failure to disclose the information in his possession was

not actually the result of an exercise of policy-based
22 GONZALEZ V. UNITED STATES

discretion. A lazy or careless failure to disclose, Gonzalez

posits, would not be shielded under the discretionary function

exception. We disagree. To the contrary, the government is

not required to prove either that an affirmative decision was

made, or that any decision actually involved the weighing of

policy considerations, in order to claim immunity. Terbush

v. United States, 516 F.3d 1125, 1136 n.5 (9th Cir. 2008) (“Of

course, after Gaubert we do not need actual evidence that

policy-weighing was undertaken.”); Kennewick Irrigation

Dist. v. United States, 880 F.2d 1018, 1028 (9th Cir. 1989)

(“[W]e [have] expressly rejected [the] argument that the

discretionary function exception cannot apply in the absence

of a conscious decision.” (internal quotation marks omitted)). 

In Alfrey, we concluded that the prison officials’ failure to run

a computer database search required weighing policy

considerations—including balancing “the risk presented by

the reported threat, along with the other risks that inevitably

arise in a prison”—without inquiring into whether any prison

official was in fact guided by those considerations. 276 F.3d

at 565.

Here, too, we need not examine whether Andersen did or

did not weigh the Guidelines’ policy considerations. The

discretionary function exception applies so long as the

challenged decision is one to which a policy analysis could

apply.

4 Weissich, 4 F.3d at 813. We made clear the

 

4 Even if the FBI negligently conducted an investigation, that does not

detract from the fact that the manner of conducting an investigation,

including decisions to share or not to share information with other

agencies, is rife with discretion and policy judgment and not appropriate

for judicial review in a tort action. See Gaubert, 499 U.S. at 334;

Kennewick, 880 F.2d at 1029 (“[I]f the presence of negligence were

allowed to defeat the discretionary function exception, the exception

would provide a meager shield indeed against tort liability.”). The statute
GONZALEZ V. UNITED STATES 23

fundamental problem with adopting Gonzalez’s proposed

approach in In re Consolidated U.S. Atmospheric Testing

Litigation, where we considered whether the discretionary

function exception shielded the government’s alleged failure

to warn nearby military and civilian persons of the health

dangers of its nuclear testing activities:

If the decision to issue or not to issue a

“warning” is within the discretionary function

exception, then logically the failure to

consider whether to issue one necessarily falls

within the exception as well. Any other

interpretation of the statute would create

insurmount abl e probl ems in its

administration: What would constitute a

“decision”? Would a decision to defer

decision be a “decision”?

820 F.2d 982, 998–99 (9th Cir. 1987). Gaubert and our case

law require us to conclude that nondisclosure resulted from

a policy judgment, whether or not the judgment was

negligently made or not made at all.5

makes clear that where there is discretion, the government has not waived

its sovereign immunity “whether or not the discretion involved [is]

abused.” 28 U.S.C. § 2680(a).

5 The dissent cites Miller v. United States, 163 F.3d 591 (9th Cir. 1998),

for the proposition that the government must show that one of the five

“exceptions” to disclosure actually applied here. Dissenting Op. at 38–40. 

In Miller, we determined that Forest Service guidelines about how to fight

fires gave the Forest Service discretion to depart from the guidelines in a

“multiple fire situation,” a situation that was clearly present during the

events giving rise to the suit. Id. at 594–95. Accordingly, the dissent

reasons that the government must demonstrate here that a situation

requiring non-disclosure was present. But Miller does not require this—in
24 GONZALEZ V. UNITED STATES

2. The design-implementation distinction does not apply

to permit suit against the government in this case

Gonzalez argues that the FBI’s failure to disclose

information did not implicate policy concerns under a

doctrine that we have termed the “design-implementation

distinction.” See Whisnant v. United States, 400 F.3d 1177,

1181 n.1 (9th Cir. 2005). We have held that, in some cases,

“the design of a course of governmental action is shielded by

the discretionary function exception, whereas the

implementation of that course of action is not.” Id. at 1181. 

So, for example, the government exercises policy judgment

when determining whether and when to construct a

lighthouse, but once it has constructed that lighthouse, it must

“use due care to make certain that the light was kept in good

working order.” Indian Towing Co. v. United States,

350 U.S. 61, 69 (1955). Thus, on occasion, we have required

the government to face liability for “a failure to effectuate

policy choices already made.” Camozzi v. Roland/Miller &

Hope Consulting Grp., 866 F.2d 287, 290 (9th Cir. 1989). 

However, as we discuss in greater detail below, we have

cautiously applied this doctrine and we have applied it largely

in cases involving public health and safety, and in

circumstances where a private party would likely be held

fact, Miller agrees that a decision “need not be actually grounded in policy

considerations” for the discretionary function exception to apply. Miller,

163 F.3d at 593. Furthermore, determining whether the “multiple fire

situation” trigger was present did not itself require a policy judgment (i.e.,

there either is more than one fire, or there is not). Here, by contrast,

determining whether the conditions permitting non-disclosure are even

present requires the FBI to make the kinds of policy judgments protected

by the discretionary function exception. The government need not

demonstrate that its decision not to disclose was actually based on a policy

analysis.
GONZALEZ V. UNITED STATES 25

liable for the same conduct or omission. See, e.g., Terbush,

516 F.3d at 1132–33 (maintaining wastewater management

system); Bolt v. United States, 509 F.3d 1028, 1033–34 (9th

Cir. 2007) (removing snow from parking lot); Soldano v.

United States, 453 F.3d 1140, 1148–49 (9th Cir. 2006)

(setting safe speed limit on road); Whisnant, 400 F.3d at

1182–83 (removing mold from meat commissary); Marlys

Bear Medicine v. United States, 241 F.3d 1208, 1215 (9th

Cir. 2001) (monitoring safety at logging operation); Camozzi,

866 F.2d at 290 (inspecting floors for unguarded openings).

Gonzalez offers two theories for why we should employ

this doctrine here. First, she argues that while the Attorney

General’s original design and promulgation of the Guidelines

are protected policy judgments, decisions implementing the

Guidelines are mere unprotected “professional judgments.” 

Second, she suggests that the government may also be liable

under the design-implementation theory if Agent Andersen

had, in fact, decided to disclose the information he had to

local law enforcement, but the FBI negligently failed to

implement that decision.6

6 Gonzalez never alleged that Agent Andersen actually made a decision

to alert local law enforcement. At most, the complaint alleged that Agent

Andersen provided the map to the Phoenix branch of the FBI. 

Transmitting the map fromone FBI office to another does not indicate that

Andersen intended to alert local law enforcement of the threat.

Gonzalez contends that she should have been permitted discovery to

obtain “those FBI documents that describe what actions were taken byFBI

personnel after learning of the home invasion plans discussed at the

recruiting meeting arranged by FBI informant Robert Copley.” As we

discuss below, however, this was not an abuse of discretion because any

negligence that occurred as a result of Agent Andersen’s actions is not

sufficient to bring this case within the discretionary function exception. 

See also supra note 3.
26 GONZALEZ V. UNITED STATES

Neither theory is sustainable. For the reasons we have

discussed, FBI agents responsible for following the Attorney

General’s Guidelines are still imbued with an enormous

amount of discretion and judgment in the course of their

investigations. We have made clear that the doctrine does not

permit liability where, as here, “the implementation itself

implicates policy concerns.” Whisnant, 400 F.3d at 1182 n.3. 

To conclude otherwise would simply swallow the two-step,

discretionary act and policy judgment analysis the Supreme

Court set forth in Berkovitz. See 486 U.S. at 536.

Gonzalez’s alternate theory—that Agent Andersen

designed a plan that he or others failed to implement

properly—fares no better. Whatever Andersen decided to do,

and whatever his colleagues in Phoenix did in response, those

acts were taken in the course of an exercise in policy

judgment. The fact that one or more agents concocted a plan

does not make that plan an irreversible agency mandate. 

Agent Andersen does not bind the United States in tort by

deciding to share or not to share information, even if he (or

someone else) does not follow up on his plan.

Our decision in Weissich v. United States is instructive. 

There, we considered whether the discretionary function

exception immunized the United States Probation Service’s

(“USPS”) failure to supervise adequately a probationer who

threatened to kill the district attorney who prosecuted him,

and later successfully carried out his threat. 4 F.3d at 812. 

After concluding that regulations governing probation

conditions did not impose a mandatory course of conduct on

probation officers, we concluded that supervisory decisions

require balancing an officer’s “dual obligations to (1) protect

the public, and (2) promote the rehabilitation of the

probationer.” Id. at 814. Plaintiffs there made a similar
GONZALEZ V. UNITED STATES 27

argument to the one we confront here, contending that USPS

“negligently supervised [the probationer] by failing to carry

out its own plan of supervision and failing to enforce the

terms of [his] probation.” Id. Significantly, we declined the

plaintiff’s invitation to sift through the probation officers’

actions and identify those indicating USPS’s failure to

implement their probation plan. Rather, we acknowledged

that while “[p]erhaps the officers should have decided to

supervise [the probationer] more closely,” and “[p]erhaps . . .

unannounced home visits might have been more appropriate,”

these were “judgment calls.” Id. The United States had no

liability “even if it was negligent in supervising” the

probationer. Id. at 815.

Weissich demonstrates that even if the FBI negligently

failed to carry out its own plan of disclosing information to

local law enforcement, our focus remains on the discretionary

and policy-based nature of the Guidelines’ disclosure

determination. Because the Guidelines are discretionary and

involve policy considerations, we cannot parse out the FBI’s

nondisclosure into “decision” and “implementation” phases. 

Nor may we conclude that simply because the Attorney

General employed policy-based considerations in

promulgating the Guidelines, any subsequent decision taken

pursuant to those Guidelines is devoid of policy-based

considerations. Such conclusions would permit the designimplementation distinction to override the discretionary

function exception analysis in contravention of the Court’s

clear command: we look first to whether a policy permits an

agent discretion, and if it does, then we must presume that an

agent’s act or omissions are grounded in policy, whether or

not we suspect that the discretion involved has been abused. 

Gaubert, 499 U.S. at 324; 28 U.S.C. § 2680(a).
28 GONZALEZ V. UNITED STATES

Fundamentally, the decision whether or not to disclose

information under the Guidelines, like the day-to-day

decisions involved in rehabilitating a probationer, requires

considerations of public safety, allocation of scarce resources,

and the likelihood of success. See Weissich, 4 F.3d at 814;

see also Sabow, 93 F.3d at 1453. Because such interests will

often conflict or will not be apparent, balancing the various

political, social, and economic considerations is inherent in

the officer’s judgment. See Weissich, 4 F.3d at 814. Far from

“ordinary occupational or professional judgments,” the FBI’s

decision whether to disclose information “clearly involve[s]

the type of policy judgment protected by the discretionaryfunction exception.” Alfrey, 276 F.3d at 566

(“[I]nvestigations by federal officers clearly involve the type

of policy judgment protected by the discretionary-function

exception.”); cf. Soldano, 453 F.3d at 1148 (“Setting a safe

speed limit for the Road as designed . . . is essentially a

matter of scientific and professional judgment.”); Sigman v.

United States, 217 F.3d 785, 795–96 (9th Cir. 2000)

(concluding that the discretionaryfunction exception does not

apply to a “garden-varietymedical malpractice” claim against

a military physician, because it involves “a function that is

analogous to functions performed by professionals in the

private sphere every day”). The FBI’s judgment whether to

disclose information under the Guidelines implicates policy

considerations for the reasons described above, and therefore,

the design-implementation distinction does not applyon these

facts.

***

The Guidelines vest discretion and policy judgment in the

FBI. Thus, the district court properly concluded that the

government satisfied both prongs of the discretionary
GONZALEZ V. UNITED STATES 29

function exception. Moreover, the district judge did not

abuse her discretion in denying Gonzalez’s request for

jurisdictional discovery.

IV

It is tempting to wonder whether a simple warning to

local law enforcement could have prevented the tragic deaths

of Gonzalez’s husband and daughter. But we are not charged

with passing upon the wisdom of the government’s exercise

of discretion, and the law does not permit us to do so,

“whether or not the discretion involved [is] abused.” 

28 U.S.C. § 2680(a). Choices such as these—to disclose or

not to disclose—are among the judgment-laden decisions the

discretionary function exception was enacted to shield. We

decline to use the tort laws to monitor the executive’s

exercise of its judgment. The judgment of the district court

is

AFFIRMED.
30 GONZALEZ V. UNITED STATES

BERZON, Circuit Judge, dissenting:

Gina Gonzalez, the plaintiff in this action, alleges that a

Federal Bureau of Investigation (FBI) agent knew of serious

threats to her family.

1 The information about the threats was

lost within the agency and so was not disclosed to local law

enforcement, as the FBI’s policy requires. Because no action

was taken to follow up on the threat, Gonzalez’s husband and

nine-year-old daughter were killed and she was injured.

The majority holds that, under the Federal Tort Claims

Act (FTCA), 28 U.S.C. § 2671 et seq., the federal

government cannot be held to answer in tort for this entirely

avoidable tragedy That cannot be.

I

Gonzalez’s central allegation is that despite a mandatory

FBI policy so requiring — “[w]hen credible information is

received by an FBI field office concerning serious criminal

activity not within the FBI’s investigative jurisdiction, the

field office shall promptly transmit the information or refer

the complainant to a law enforcement agency having

jurisdiction,” Attorney General’s Guidelines for Domestic

FBI Operations § VI(C)(2) (“Guidelines”) — there was no

disclosure to local authorities. The information was

1 This case was decided below on a motion to dismiss for lack of subject

matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). 

The district court did not grant jurisdictional discovery, so we take

Gonzalez’s allegations as true. See Sabow v. United States, 93 F.3d 1445,

1449 (9thCir. 1996); Augustine v. United States, 704 F.2d 1074, 1077 (9th

Cir. 1983).
GONZALEZ V. UNITED STATES 31

forwarded within the FBI but then, according to Gonzalez,

simply lost.

There are exceptions to the FBI’s disclosure or referral

requirement — “where disclosure would jeopardize an

ongoing investigation, endanger the safety of an individual,

disclose the identity of a human source, interfere with a

human source’s cooperation, or reveal legally privileged

information.” Id. But the complaint does not indicate that

any FBI investigation was implicated by the non-disclosed

information or that any other exception to the mandatory

disclosure policy applied.

The Government has not asserted otherwise. Instead, the

Government’s position is essentially hypothetical — if one of

the exceptions were applicable, then the nondisclosure

decision would be discretionary, and there is no FTCA

jurisdiction over discretionary acts. 28 U.S.C. § 2680(a).

But the loss of information subject to a mandatory

disclosure policy is not an “exercise of policy judgment,”

United States v. Gaubert, 499 U.S. 315, 326 (1991) (quoting

Berkovitz v. United States, 486 U.S. 531, 538 n.3 (1988)). 

Nor does the existence of hypothetically applicable

exceptions to a mandatory requirement convert an otherwise

mandatory policy into a discretionary one. I respectfully —

but emphatically — dissent.

II

Gonzalez’s story, recounted in detail in the majority

opinion, is a distressing one by any standard. In summary:

One early morning in 2009, three members of an extremist

“Minutemen” group entered Gonzalez’s housewearingmasks
32 GONZALEZ V. UNITED STATES

and carrying guns. They murdered her husband in front of

her. After one of the invaders asked Gonzalez’s nine-yearold daughter, B.F., whether her sister was home, he shot B.F.

in the face and killed her. The intruders shot Gonzalez as

well, several times, and likely would have killed her had she

not defended herself with her husband’s handgun while

calling for help.

Tragically, these events were preventable. An FBI

informer was involved in planning the attack. He provided an

FBI agent, Chris Andersen, with information about the plan

to “hit[] the house like a SWAT team.” The informant gave

Andersen a map, drawn by the leader of the planned attack,

showing the approximate location of the house, and reported

that he believed the plotters posed a real and imminent threat.

So what happened? Andersen provided the map to the

FBI’s Phoenix office, but the office misplaced the map. 

Neither Andersen nor anyone else notified the Pima County

Sheriff’s Department, the local law enforcement agency in

charge of the town in which Gonzalez’s home was located. 

Had the Sheriff’s department been notified, it could have

arrested the organizer of the attack, as she was known to the

Sheriff’s Department and could have been charged with

conspiring to carry out the attack before it occurred.

In short, Andersen’s well-substantiated information of an

impending attack never made it to Pima County officials. 

Gonzalez’s husband and daughter died preventable deaths. 

The majority holds that the United States cannot be held

liable for those deaths, because the FBI had the discretion to

withhold information from local law enforcement that could

have saved two lives.
GONZALEZ V. UNITED STATES 33

III

“The applicability of the discretionary function exception

is determined by a two-part test.” Miller v. United States,

163 F.3d 591, 593 (9th Cir. 1998). First, we must determine

whether the “challenged conduct . . . is a matter of choice for

the acting employee,” as “the discretionary function

exception will not apply when a federal statute, regulation, or

policy specifically prescribes a course of action for an

employee to follow.” Berkovitz, 486 U.S. at 536. If that test

is satisfied, we must also determine whether “the discretion

involves the type of judgment that the exception is designed

to shield,” Miller, 163 F.3d at 593, namely “legislative and

administrative decisions grounded in social, economic, and

political policy,” Gaubert, 499 U.S. 315, 323 (1991) (quoting

United States v. S.A. Empresa de Viacao Aerea Rio

Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). The

conduct challenged here — the FBI’s failure to disclose

information to local law enforcement agencies — does not

meet either prong of the test and is therefore not shielded by

the discretionary function exception.

A

In the first place, and most important, the FBI does have

a mandatory disclosure policy, and it was applicable to the

information agent Andersen acquired. That policycommands

FBI personnel in no uncertain terms as to what to do with

“credible information . . . concerning serious criminal

activity,” using mandatory language: “[T]he field office shall

promptly transmit the information or refer the complainant to

a law enforcement agency having jurisdiction.” Guidelines

§ VI(C)(2) (emphasis added).
34 GONZALEZ V. UNITED STATES

There are five specific exceptions to this mandatory

directive — where disclosure would “jeopardize an ongoing

investigation, endanger the safety of an individual, disclose

the identity of a human source, interfere with a human

source’s cooperation, or reveal legally privileged

information.” Id. If one of these exceptions applies, the

Guidelines, again using mandatory language, require that

“whenever feasible, the FBI office shall make at least limited

disclosure to a law enforcement agency or agencies having

jurisdiction, and full disclosure shall be made as soon as the

need for restricting disclosure is no longer present.” Id.

(emphasis added). The Guidelines therefore “specifically

prescribe[] a course of action for an employee to follow,” and

“the employee has no rightful option but to adhere to the

directive.” Berkovitz, 486 U.S. at 536. Because that is so,

failing to inform local law enforcement of the kind of serious,

specific threat made here was in no way a discretionary act.

The Guidelines do require that FBI field officers make

certain evaluations— whether information is “credible,”

whether it relates to “serious criminal activity,” and whether

the exceptions do or do not apply. But any regulation that

sets out criteria for action requires that the responsible

government officials determine whether those criteria are or

are not satisfied. An otherwise mandatory policy does not

become discretionary because it applies only in certain

specified circumstances or because it has clearly laid out

exceptions. If it did, then no “federal statute, regulation, or

policy” Berkovitz, 486 U.S. at 536, would survive the

discretionary function exception; every such proscription is

limited to described circumstances, and the responsible

employees have to decide whether those circumstances

obtain.
GONZALEZ V. UNITED STATES 35

In Tobar v. United States, for instance, we held that a

Coast Guard enforcement manual was mandatory under the

first Berkovitz prong. 731 F.3d 938, 945–47 (9th Cir. 2013). 

The enforcement manual stated that “[i]f there are no drugs

on board, and there are damages or losses sustained by the

vessel, in accordance to the U.S. laws and in a manner

complying with international laws, the owner of the vessel

will be compensated, as long as neither the vessel nor the

crew have been involved in illicit actions.” Id. at 946. That

directive is essentially identical in structure to the Guidelines

at issue in this case. It provides that when certain conditions

exist — damages or losses sustained by the vessel — federal

employees “will” — using mandatory language — take a

specific action (compensating the owner) unless(exceptions)

particular circumstances exist (involvement by the vessel or

the crew in illicit actions). A Coast Guard employee would

have to make several evaluations to follow this policy —

(1) whether the compensation requested is “in accordance to

the U.S. laws”; (2) how to provide compensation “in a

manner complyingwith international laws”;(3) what it means

to be “involved” in illicit actions in the past, and (4) whether

a particular action was “illicit.” The need for such

evaluations, which could be fairly complex, did not convert

the mandatory compensation requirement in the Coast Guard

manual into a discretionary policy. Id. The holding of Tobar,

in other words, is that a policy is not discretionary simply

because it directs an employee “do x, unless y.” Yet, that is

what the majority holds here.

In contrast, the cases in which we have found that policy

manuals do set out discretionary criteria, not mandatory

directives, have pointed to specific indices that the

established policy at issue “d[id] not prescribe courses of

action that must be followed.” Sabow v. United States,
36 GONZALEZ V. UNITED STATES

93 F.3d 1445, 1452 (9th Cir. 1996); see also Weissich v.

United States, 4 F.3d 810, 813–14 (9th Cir. 1993). In Sabow,

for instance, the manual stated that “the circumstances of a

particular case will naturally govern the actions taken to

protect and preserve the physical evidence,” and noted that its

provisions were simply “considered generally valid guides.”

Sabow, 93 F.3d at 1452. In Weissich, the policy specified that

“[a] warning is not required in every case,” and that whether

to issue a warning “depends upon a selective case-by-case

evaluation,” based on a non-exhaustive list of factors.

Weissich, 4 F.3d at 813.

Most recently, in Chadd v. United States, 794 F.3d 1104

(9th Cir. 2015), we found a National Park policy

discretionary in the public safety context where the relevant

manual specified that “[t]he means by which public safety

concerns are to be addressed is left to the discretion of

superintendents and other decision-makers at the park level,”

and that where a certain animal species creates a safety

hazard, it “will be managed — up to and including

eradication — if . . . control is prudent and feasible.” Id. at

1110. These policies, we concluded, “impose[] no particular,

mandatory course of action.” Id.

The majority ignores the determinative distinction in our

case law between policies that direct mandatory actions

absent an applicable exception and those that lay out general

criteria for discretionary actions. It then goes on to cite

Sabow for the proposition that “the presence of a few,

isolated provisions cast in mandatory language does not

transform an otherwise suggestive set of guidelines into

binding agency regulations.” Sabow, 93 F.3d at 1453. But

here, the relevant, mandatory language in the FBI disclosure

provision is central to the directive, not “isolated.” And the
GONZALEZ V. UNITED STATES 37

majority points to no language at all indicating that these

Guidelines should be considered “suggestive.” Without

anything like the explicit invocation of “discretion” in Chadd

or the “case-by-case evaluation” language in Weissich, the

FBI’s prescribed policy is that serious, substantiated threats

— which these clearly were — are required to be

communicated to local law enforcement absent an applicable

exception. See Chadd, 794 F.3d at 1110; Weissich, 4 F.3d at

813; see also In re Glacier Bay, 71 F.3d 1447, 1452–53 (9th

Cir. 1995).

Moreover, and critically, Vickers v. United States,

228 F.3d 944 (9th Cir. 2000), also cited by the majority, adds

an important consideration applicable here: Reporting

requirements can be mandatory even if they coexist in policy

guidelines alongside discretionary functions, like

investigation. Id. at 953; see also Navarette v. United States,

500 F.3d 914, 917 (9th Cir. 2007). Responding to a similar

claim of discretionary function to the one made here, Vickers

held that “although INS investigators undoubtedly enjoy

discretion in the conduct of an investigation, this discretion

does not extend to the question of whether to report to

superiors or to investigate at all an allegation of misuse of

Service-issued firearms,” where policy guidelines made such

reporting, and some investigation, mandatory. Vickers,

228 F.3d at 953 (emphasis in original).

Here, it is the failure to disclose — that is, report — the

threat that is at issue, not the failure to conduct an adequate

investigation into those threats, that is the crux of Gonzalez’s

suit. Gonzalez’s complaint is only that the FBI did not report

to local law enforcement information already in its

possession, as its mandatory Guidelines required. The

majority’s mantra that this case concerns “investigation and
38 GONZALEZ V. UNITED STATES

prosecution of crime” is thus simply wrong, and its

voluminous citations to the discretionary nature of criminal

investigations and prosecution are similarly beside the point.

In sum: Any mandatory policy will require some degree

of interpretation by those who must apply it. If the

government were deemed to exercise the kind of “discretion”

contemplated by the discretionary function exemption every

time an employee is required to read and apply stipulated

considerations that, if they exist, require that certain steps be

taken, all, or nearly all, otherwise mandatory government

policies would become discretionary.

I would hold that the FBI’s Guidelines here at issue are

mandatory. The FTCA’s discretionary function exception is

therefore not applicable at all to Gonzalez’s claim that the

FBI negligently failed to disclose to local law enforcement

threats that, under the agency’s policies, should have been

conveyed.

B

Even if the exceptions to the FBI’s mandatory disclosure

policy did make decisions under those exceptions

discretionary with respect to the FTCA, the Government still

must prove that those exceptions in some sense were

implicated here. The Government bears the burden of

proving the discretionaryfunction exception applies, Terbush

v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008). It

cannot meet that burden by simply saying — without any

evidence — that the Guidelines’ exceptions might have

applied. Although this Court has held that a decision “need

not be actually grounded in policy considerations” for the

discretionary function exception to apply, Miller, 163 F.3d at
GONZALEZ V. UNITED STATES 39

593,2 we have never held that the Government need not

affirmatively invoke the discretionary aspects of a hybrid

policy — that is, one that is generally mandatory, but has

limited exceptions.

Miller itself well illustrates that the Government must at

least invoke the discretion-granting exceptions to an

otherwise mandatory policy apply. In Miller, property

owners sued the Forest Service for damages to their property

caused by a forest fire escaping from a National Forest. 

163 F.3d at 592. The court noted mandatory language in the

Forest Service’s guidelines about how Forest Service

employees should fight fires, id. at 594, but held that the

discretionary function applied nonetheless. Miller so

concluded in part because the guidelines also noted that in

“multiple fire situation[s],” limited resources meant that

employees should only “attempt” to follow their preplanned

response, which conferred discretion on the Forest Service as

to how best to allocate resources. Id. at 594–95 (emphasis in

original). Miller thus contains a hybrid policy similar to the

Guidelines, as construed by the majority: Mandatory

language required government officials to do x, with an

2

I have previously criticized this statement in Miller as contradicting the

Supreme Court’s holding in Gaubert — viz., that the discretionary

function exception “protects only governmental actions and decisions

based on considerations of public policy.” Chadd v. United States,

794 F.3d 1104, 1114 (9th Cir. 2015) (Berzon, J., concurring) (emphasis

added inChadd) (quoting Gaubert, 499 U.S. at 323). I continue to believe

that the holding of Miller should be reconsidered en banc, for the reasons

stated in my Chadd concurrence. Because Miller does not, in my view,

apply to a hybrid policy such as the one here, this case does not require us

to consider whether Miller should be revisited, as I suggested in Chadd. 

That Miller is of questionable validity does, however, reinforce my

conclusion that it should not be expanded to cover hybrid

mandatory/discretionary policies such as the Guidelines here.
40 GONZALEZ V. UNITED STATES

exception for specified situations, as to which the policy

granted discretion and so triggered the discretionary function

exception.

But in Miller it was clear that the exception was the

applicable provision — there had been multiple forest fires

going on in the same region on the same day. Id. at 592. The

majority’s logic here would amount to a stance that in Miller,

because there might have been another fire on the same day,

in which case the exception would apply, the Government

could invoke the discretionary function exception even if

there was no second fire, and no one thought there was. That

is, the Government could prevail because if it had taken

action based on the belief there were two fires, it would have

had discretion as to what to do.

Such a fantasy-grounded approach would severely

undermine a central purpose of the FTCA, namely, the

compensation of individuals who might otherwise be left

“destitute or grievously harmed” by the improper

implementation of government policy. Rayonier Inc. v.

United States, 352 U.S. 315, 320 (1957). There are a great

many policies that, like the one in Miller, contain exceptions

that, during emergencies or other special circumstances, grant

more discretion to the government employees than they

otherwise enjoy. The Army’s Snow Removal Policy held

mandatory in Bolt v. United States, 509 F.3d 1028 (9th Cir.

2007), contained a provision that it was “subject to change

during emergency situations.” Id. at 1033. The Department

of Health and Human Services’ regulations for laboratories

that handle toxins and dangerous biological agents allow

waivers during “domestic or foreign public health

emergenc[ies].” 42 C.F.R. § 73.5(e). The discretionary

function exception would swallow the FTCA if these
GONZALEZ V. UNITED STATES 41

provisions — in the absence even of an asserted emergency

— were held to mean that the government is not liable for

negligence in its day-to-day clearing of snow, as in Bolt, or in

the licensing of laboratories, as in Berkovitz.

Here, unlike in Miller, the Government has not made any

showing that the exceptions apply; that any government

employee thought they did; or even that any FBI employee

considered whether they did. Gonzalez maintains that the

information was just lost — an action that does not suggest

that any FBI employee believed the Guidelines applied. The

majority is therefore wrong to apply Miller’s principle to this

case.

Citing Gaubert, the majority argues that because the

Guidelines’ exceptions permit discretion (which, as I have

explained, I am assuming in this section is true, although I do

not think it is), we must presume that the FBI’s actions “were

grounded in policy considerations.” But applying that

presumption here jumps the gun, as it assumes, with no proof

at all, that the Government was acting pursuant to one of the

exceptions, and not pursuant to the generally applicable

mandatory reporting requirement.

Moreover, even if the majority is correct that the FBI is

entitled to a presumption in its favor that it was acting

pursuant to discretion-granting exceptions to a mandatory

rule, that would not end the case. Instead, Gonzalez should

have an opportunity to rebut this presumption, which would

require discovery. Her complaint asserts that the Government

was not acting to such an exception, but instead simply lost

the information. We have previously held that, in a ruling

challenging subject matter jurisdiction under the FTCA, “the

moving party should prevail only if the material jurisdictional
42 GONZALEZ V. UNITED STATES

facts are not in dispute and the moving party is entitled to

prevail as a matter of law.” Augustine, 704 F.2d at 1077; see

also Young v. United States, 769 F.3d 1047, 1052–53 (9th

Cir. 2014). As a result, “the jurisdictional determination

should await a determination of the relevant facts.” Young,

769 F.3d at 1053 (quoting Augustine, 704 F.2d at 1077). The

relevant facts include, at a minimum, whether the FBI

actually invoked the exceptions to the Guidelines in some

way, or whether it just lost the information, as Gonzalez

alleges. Because the FBI is, most likely, the only entity with

this information, the district court should have granted

Gonzalez at least minimal jurisdictional discovery with

regard to these facts.

C

Finally, even if the majority is otherwise correct, I would

still reverse, as the FBI’s decisions under the relevant section

of the Guidelines do not qualify as discretionary acts

“grounded in social, economic, and political policy.” Young,

769 F.3d at 1053 (quoting Berkovitz, 486 U.S. at 537).

Our precedent has long recognized that “matters of

scientific and professional judgment — particularly

judgments concerning safety — are rarely considered to be

susceptible to social, economic, or political policy.” 

Whisnant v. United States, 400 F.3d 1177, 1182 (9th Cir.

2005). The majority states that the Guidelines’

considerations governing reporting serious, credible threats

to local law enforcement “implicate social, economic, and

political judgments,” but does not support this conclusion. 

Instead, the majority repeatedly treats this case as if it asks us

to review an FBI investigation, concluding that Agent

Andersen’s actions entailed “social, economic, and political”
GONZALEZ V. UNITED STATES 43

policy judgments, rather than professional ones, because

“[t]he investigation and prosecution of crime involves policy

judgments at the core of the executive branch.”

But, once again, the FBI’s investigation and prosecution

responsibilities have nothing to do with this case. We have

not been asked to determine whether Agent Andersen, or any

other FBI employee, was negligent in the investigation or

prosecution of a crime. The issue before us is whether an FBI

employee negligently failed to disclose information already

in its hands to local law enforcement. The majority’s

concerns regarding deference to FBI enforcement priorities

are just not relevant.

* * *

The FTCA protects the public by helping to ensure the

Government is attentive to its own policies, and by allowing

compensation for those injured by the Government’s

negligence, where enunciated policies are not followed. In

one sense, it is too late for Gina Gonzalez to benefit from the

attentiveness the Government should have paid to threats

affecting her and her family, as her husband and child are lost

to her. But her claim for compensation should go forward. 

I respectfully dissent.