F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

G I N A M. G O

N Z A L E Z , personally

and

as nex t best friend of A.F ., a minor,

Plaintiff-Appellant

,

v

.

U N I T E D S T A T E S O F A M E R I C A , Defendant-Appellee

. N o. 13-15218

D.C. No. 4:12-cv-00375- J GZ

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na J ennifer G. Z ipps, District J udg e, Presiding

Arg ued and Submitted March 12, 2015—San F rancisco, California

F iled F ebruary

24, 2016

B efore: Marsha S. B erz o n, J ay S. B y bee, and J ohn B . Owens, Circuit J udg es.

Opinion by

J udg e B y b e e; Dissent by J udg e B erz onG O N Z A L E Z V

. U N I T E D S T A T E S 2

SUMMARY *

F ederal Tort Claim s Act

The panel affirmed the district court’s F ed. R. Civ. P. 12(b)(1) dismissal for lack of subject matter jurisdiction over this F ederal Tort Claims Act (“F TCA”) case based upon the discretionary

function ex ception.

The discretionary func t i o n ex ception of the F TCA immuniz es the federal g overnment from claims “ based upon the ex ercise or performance o r the fail u r e t o ex ercise o r perform a discretionary function or duty ” on the p a rt of the
g overnment. 8 U.S.C. § 2680(a).

Plaintiffs alleg ed that the F B I learned of communications
among members of the Minutemen American D efense, an activist g roup that advocated a g ainst illeg al immig ration a nd that patrolled the U.S.-Mex ico b o rder. Plaintiff’s home was subse q uently invaded and members o f her family were murdered b y members o f the Minutemen g roup. Plaintiff alleg ed that t h e FBI neg lig ently failed to disclose the information a

bout the impending home invasion to local law enforcement, in contravention of the Attorney G eneral’s Guidelines for Domestic F B I Operations.

The p a nel held that under the Attorney General Guidelines, the F B I ’s failure to disclose information to local law enforcement reg arding a home invasion threate n ed b y p r i vate persons ag ainst unspecified victims constituted a

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G O N Z A L E Z V

. U N I T E D S T A T E S 3

“failure to ex ercise or perform a dis cr e t ionary function o r d u t y ” p u rsuant to § 2680(a) of the F TCA, and therefore t h e discretionary

function barred plaintiff’s suit. The panel also he l d that the district court d id not abuse its discretion in deny ing plaintiff’s request for jurisdictional discovery

.

J udg e B erz on diss ented because she would hold that the conduct challeng ed here – the F B I ’s failur e to d isclose information to local law enforcement ag encies

– w as not shielded by the discretionary f u n ction ex c eption, and she would allow plaintiff’s claim for compensation to g o forward.

COUNSEL

Thomas G. Cotter (arg ued) and Stanley G. F eldman, Haralson, Miller, Pitt, F eldman & McAnally

, P.L .C., Tucson, Ariz ona, for Plaintiffs-Appellants.

S t e v e F rank (arg

ued) and Mark B

. Stern, Appellate Staf f Attorney s; Stuart F

. Delery

, Assistant Attorney General; J ohn S. L eonardo, United States Attorney ; Un i ted States Department of J ustice, Civil Division, W ashing ton, D.C., for Defendant-Appellee.G O N Z A L E Z V

. U N I T E D S T A T E S 4

OP INION

B YB EE, Circuit J udg e:

The discretionary

function ex c eption of the F ederal T o rt Claims Act (“F TCA”) immu n i z es the federal g overnment from claims “based upon the ex ercise or performance or the failure to ex ercise or perform a discretionary fun ction o r duty ” on the part of the g overnment. 28 U.S.C. § 2680(a). W e consider whether, u nder Attorney General g uidelines, the F B I ’s failure to disclose information to local law enforcement
reg ardi n g a home invasion threatened by private persons ag ainst unspecified victims constitutes a “failure to ex ercise

or perform a discretiona ry function or duty ” pursuant to § 2680(a), barring Gonz a lez ’s suit. W e hold that the FBI ’s decision whether or not to disclose was d iscretionary

, and we affirm the judg ment of the district court dismissing the suit.

I

A. Factual Allegations

Plaintiffs-Appellants Gina Gonz alez a nd her minor daug hter, A.F

. (“Gonz alez ”)

, a l l eg e that in April 2009, the F B I learned of communicatio n s a mong members o f the Minutemen American Defense, an a ctivist g r o u p that advocates ag ainst i lleg al immig ration a nd patrols the U.S.- Mex ico b order f

o r i l l eg al crossing s. 1 That month, Shawna

1 W h en a d e fe n d a n t b r in g s a m o tio n to d ism i ss u n d er Fed eral Ru le of Civ il P ro ced u re 1 2 (b )(1 ) an d asserts th at th e alleg atio n s in th e p lain tif f ’ s

c o m p l ain t are in su f

f icien t to estab lish s u

b j ect m atter j u risd ictio n a s a

m atter o f law , w e tak e th e alleg atio n s in th e p lain tif f ’ s co m p lain t as tru e. W h isn a n t v. Un i ted S ta tes , 4 0 0 F.3 d 1 17 7 , 1 1 7 9 (9 th Cir. 2 00 5 ).G O N Z A L E Z V

. U N I T E D S T A T E S 5

F orde called Rona l d W edow, another member of the Minutemen in Ariz ona, and told him that she knew someone in Arivaca, Ariz ona w h o w ould provide her with “information about illeg al immig rants.” W edow passed this i n f ormation along to his friend Robert Copley

, who sp o k e with F orde several times over th e c ourse of that month. F orde told Copley that the Minutemen planned to conduct an “operation” in Arivaca, in which they would invade a home to steal drug s, weapons, and money

.

At F orde’s request, Copley set u p a meeting i n A u r o ra, Colorado at a F ly ing J truck stop to recruit individuals for the operation. B ut Copley , unbeknownst to F orde, had contacts at the F B I . And after setting up the Aurora meeting

, Copley informed h is F B I co n t a ct, A g ent Chris Andersen, of the meeting

. He asked Ag ent An d e r sen to send an u ndercover F B I a g ent to the meeting

. Andersen declined, but instructed Copley to attend, g ather information, and report back.

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

, W edow, and several others a t t e n d e d. F orde described h er plan to invade a home in Ar i v a ca, 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 i n s ide. She ex plained that her p lan invo lved forming two “ crews”: the first to “secure” the residents of the home, and the second to steal the drug s, weapons, a

nd cash. She then drew a map of the a r e a where the targ et home was located.

F ollowing the meeting

, Copley reported to Ag ent Andersen. He informed A ge n t Andersen of F orde’s plan to “secure” the residents of the home, ex plaining that “securing ”
meant “hitting the house lik e a SW AT team

. . . g oing inG O N Z A L E Z V

. U N I T E D S T A T E S 6

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 s h o wing the

a p p rox imate area of the attack. Gonz alez alleg e s t h at Andersen provided the map to the Phoenix F B I office but that the map was lost in Ph o e nix

. She a lso alleg es that the F B I

never alerted local law enforcement i n A r i vaca—the Pima County Sheriff’s Department—of any of this information.

F ifteen day s after the Aurora meeting , on May 30, 2009, three masked intruders entered G onz alez ’s home in Arivaca in the early morning hours. Th e y f a tally shot Gonz a lez ’s husband, Raul F lores, in view of G o n z a l ez and their niney ear-old d a u ghter, B

. F

. They then wounded Gonz a lez

, shooting her in the shoulde r a n d leg

. F inally

, a g unman reloaded his weapon and shot B

. F

. in the face, killing her instantly

. T he intruders w ithdrew from the home. Gonz alez crawled to the nex t room, g r abbed her husband’s handg un, and called 9 11. W hile she w as on the 9 1 1 c a l l

, a g unman returned and attempted to shoot Gonz al e z ag ain, a nd Gonz a lez shot him in the leg

. Th e i n t r uder’s injury eventually led to the identification, arrest, and prosecution o f the three perpetrators. One of them was Shawna F orde.

B

. Proceedings

Gonz a lez filed a complaint in U.S. District Court for the District of Ari z o n a on behalf of herself and her surviving daug hter, A.F

. , who was at her g randmother’s h o u s e at the time of the attack. T he com p l a i n t alleg ed that the United States is liable under the F TCA for damag es a rising o ut o f the attack because the F B I n e g lig ently failed to d isclo s e the information about the impending home invasion to local law enforcement, in contravention of the Attorney G eneral’sG O N Z A L E Z V

. U N I T E D S T A T E S 7

Guidelines for Domestic F B I O perations (“Guidelines”). S e c tion VI (C)(2) of these Guidelines provides that the FBI “shall promptly transmit” to local law enforcem ent information concerning “serious criminal activity not within the F B I ’s investig ative jurisdiction,” unless disclosure would compromise an ong oing investig a tion, endang er others, or

rev e a l privileg ed information. Gonz alez and A.F

. soug ht damag es for the wrong ful d eath of Raul F lores a nd B .F

. Gonz a lez also soug ht damag e s for her own personal injuries, pain, and suffering

.

The United States filed a motion to dismiss, a r guing

, among other thing s, t h a t the court lacked subject matter jurisdiction over this F TCA case because of the discretionary function ex c eption. The district court g r anted the motion to dismiss for la c k o f subject matter jurisdiction under F ederal R ule o f Civil Procedure 12(b)(1). The court den i e d Gonz a lez ’s request for jurisdictional d i s covery as futile. Gonzalez v. United Stat e s , N o

. CV 12-00375, 2013 W L 308762, at *7–8 (D. Ariz

. J an. 25, 2013 )

. Gonz alez filed a timely appeal to this court.

I I

The F T CA authoriz es priva t e s uits ag ainst the United States for damag es for loss of property , injury

, or death

c aused by the n eg lig ent or wrong ful ac t o r omission of any employ ee of the Government while acting within th e s co p e of his office o r employ ment, under circumstances where the United States, if a pr i v ate person, would be liable to the c laimant i n a c cordance with theG O N Z A L E Z V

. U N I T E D S T A T E S 8

law o f the place where the act or omission occurred.

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

o f sovereig n immunity from suits for neg lig ent or w r o n gf u l
acts of g overnment e mploy ees, Un i t e d States v. Gaubert

, 499 U

. S

. 3 15, 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 ex tent a s a private individual under like circumstances”).

There are several ex ceptions to the F TCA. The ex c eption relevant for our purposes is the discretionary function

ex c e ption, which p ro v ides that the g overnment has not waived immunity

for claims

based upon the ex ercise o r performance or the failure to ex ercise or perform a discretionar y function or d u t y on the part of a federal
ag ency or an empl o y ee of the G overnment, whether or not the d i scretion involved [ is] abused.

28 U.S.C. § 2680(a). This ex ception “prevent[ s] judicial ‘second-g uessing ’ of leg islative and administrative decisions
g rounded in social, e c onomic, and political policy throug h the medium of an action in tort.” United States v. S.A. Empresa de Viacao Aer e a Ri o Grandense ( Varig Airlines)

, 467 U.S. 797, 814 (1984). The “discr e t i o n protected by [ § 2680(a)]

. . . . is the discretion of the ex ecutive or the administrator to act according to one’s judg ment of the best course, a concept of substantial historical ancestry in American law.” D alehite

, 346 U.S. at 3 4 (internal quotation marks omitted).G O N Z A L E Z V

. U N I T E D S T A T E S 9

According ly

, “[ w] here there is room for p olicy judg ment a nd decision there is discretion.” Id. at 36. The g overnment bears the b urden of demonstrating that the discretionary function

ex c e ption applies. G

ATX/ A irlog Co. v. United States
, 286 F .3d 1168, 1174 (9th C i r

. 2002). W here the ex c eption applies, the United States has n o t waived its sovereig n immunity and we lack subje c t m a tter jurisdiction over the claims. Id. at 1173; see United States v. Sherwood

, 312 U.S. 584, 586 (194 1 ) ; United S tates v. Park Place Assocs., Ltd.

, 563 F .3d 9 07, 924 (9th Cir. 2009) (ex plaining that the F TCA waiver o f sovereig n immunit y i s coex tensive with the conferral of jurisdiction (citing 28 U.S.C. § 1346)).

The Supr e m e C o urt h a s prescribed a two-part test for determining w hether the discretionary function ex c eption applies. Berkovitz v. United S tates , 4 86 U.S. 531, 536–37 (1988). F irst, courts are to ask whether the challeng e d action

was a discretionary one—“that is, it must involve an element of judg ment or choice.” GATX/Airlog Co.
, 286 F .3d a t 1173 (citing Berkovitz

, 486 U.S. at 536). I n a ddition to duties prescribed b y the c ommon law torts “of the place where the
act or omission occurred,” 28 U.S.C. § 1 346(b)(1), federal employ e es must follow “fede ral statute[ s]
, reg ulation[ s]
, o r polic[ ies that] spe cifically prescribe[ ] a course of action for

an employ ee to follow,” G ATX/Airlog Co.
, 286 F .3d at 1173. I n such cases, “the employ e e has n o r ig htful o p tion but to adhere to the directive,” and the discretionary function

ex c e ption d oes not apply

. Id. a t 1174. Thus, w here conduct violates a mandatory directive and is not “the p roduct o f judg ment or choice,” it is not d iscretionary

. Be r k o v i t z , 486 U.S. at 536. This step is c a l l e d the “discretionary act”
prong of the discretionary function ex cept ion analy sis. See Sabow v. United States , 93 F .3d 1445, 1451 (9th Cir. 1996).G O N Z A L E Z V

. U N I T E D S T A T E S 10

I f the conduct involves an element of judg ment, the court then determines “whether that judg ment is of the kind that the discretionary function e x ception was desig ned to shield.” Berkovitz

, 486 U.S. at 536. T h e focu s o f t his second step is “not on the ag ent’s subject i v e intent in ex e rcising the discretion c onferred by statute or r eg ulation,” but rather “ on the nature of the actions taken and on whether they a re susceptible to p o l i cy analy sis.” Gaubert

, 499 U.S. at 325. “The decision n ee d not actually be g rounded in p olicy consideratio n s s o l ong as it is, by its n ature, susceptible to a policy a naly sis.” GATX/Air l o g C o. , 286 F .3d at 1174 (internal quotation marks omitted). According to the Court, “if a reg ulation allows the empl o y e e discretion, the very

ex istence of the reg

ulation creates a strong

presumption that

a d iscretionary act authoriz ed by t he reg ulation involves consideration of the same policies w h i ch led to the promulg a tion of the reg ulations.” Gaubert

, 4 99 U.S. a t 324. Thus, “[ w] hen established g overnmental policy

, as ex pressed

or implied by statute, reg ulation, or ag ency g uidelines, a llows

a Governme nt ag ent to ex ercise discretion, it must be presumed that the ag ent’s acts are g ro u n d e d in policy when

ex e r cising that discretion.” Id. W e refer to this as the “policy judg ment” prong

. S

ee Sabow , 93 F .3d at 1451.

I I I

W e beg i n with the first prong o f the discretionary function ex ception analy sis, the d iscretionary act prong

. W e first a ddress whether the Guidelines impose upon F B I ag ents

a mandatory duty to disclose information to loc a l l aw enforcement. B ecause Gonz alez also contends th a t additional discovery w ould have h elped her show the mandatory nature of the Guidelines

, we a lso discuss whether the district court abused its discretion in deny ing Gonz alez further discovery

.G O N Z A L E Z V

. U N I T E D S T A T E S 11

Concluding that the F B I has d iscretio n i n its investig ative decisions, we then turn to the policy judg ment prong

. 2

A. Discretionary Act

1. The F B I ’s d ecision whether or not to d isclose i n f o r m a t i o n r e g a r d i n g p o t e n t i a l t h r e a t s i s discretionary

W e f irst c o n sider whether the challeng ed g overnment action involves discretion. There is no c ommon l a w analog in tort law. Thus, we are looking to see if there is some kind of “federal statute, reg ulation, or policy [ that] speci f i c ally prescribes a course o f action for an employ ee to follow.” Berkovitz , 486 U.S. at 536.

W e know o f no statute or reg ulation—and Gonz alez has not directed us to any

—that p rescribes a course of action for the F B I and its ag ents to follow in the investig ation of crime. This is n ot surprising

. The investig ation and p r o s ecution o f crime h as long been a core responsibi l i t y of the e x ecutive branch. See Marbury v. Madison

, 5 U.S. (1 Cranch) 137, 163 (1803) (“One o f the first duties of g overnment is to afford

. . . protection.”); see also Corfield v. Coryell

, 6 F

. Cas. 546, 551 (C

. C

. E

. D. Pa. 1823) (No. 3,230) (W ashing ton, J .) (The f u n d a m ental privileg es of citiz enship include “[ p] rotection by the g o v ernment”). Outside of the F T CA contex t, the “Court has recog niz ed on several occasions over many y ears that an

2 W e rev iew d e n o v o a d ism issal f o r lack o f su b j ect m atter j u risd ictio n

u n d er th e FT CA

. Green v. Un i ted S t a tes , 6 3 0 F.3 d 1 2 45 , 1 2 4 8 (9 th Cir. 2 0 1 1 ). D en ials o f m o tio n s to co m pel d isco v ery are rev iew ed f o r ab u se of d iscretio n

. Dich ter-Ma d Fa mily Pa rtn ers, LLP v. Un ited S ta tes , 7 0 9 F.3 d 7 4 9 , 7 5 1 (9 th

Cir. 2 0 1 3 ) (p er cu riam ).G O N Z A L E Z V

. U N I T E D S T A T E S 12

ag ency ’s d ecision not to pros ec ute o r enforce, whether throug h civil or criminal process, is a decision g eneral ly

c o m mitted to an ag ency ’s absolute discretion.” H eckler v. Chaney , 470 U.S. 821, 831 (1985). “This recog nition . . . is
att r ibutable in no small part to the g eneral u nsuitability for judicial review of ag e n c y d ecisions to refuse enforcement.” Id. ; see W

ayte v. United S t a t e s , 470 U.S. 598, 607 (1985) (“[ T] he decision t o p rosecute is particularly ill-suited to judicial review.

. . . [ T] he G overnment’s enforcement priorities, and

. . . o v erall enforcement plan are n ot readily susceptible to the kind o f analy sis the c ourts are competent to undertake.”); s ee also Imbler v. Pachtman

, 4 24 U.S. 409, 431

n

. 33 (1976) (preparation for indictment involves t h e “obtaining

, reviewing

, and evaluating o f evidence,” which requires “mak[ ing ] decisions on a wide variety of sens i t ive issues”).

G o nz alez has arg ued, n evertheless, that the Attorney General has prescribed g uidelines for the conduct o f investig ations that supply a mandatory duty applicable to the F B I ag ents involved here. Section V I ( C ) (2) of the Attorney General’s Guidelines for Domestic F B I Operations g overns the F B I ’s disclosure of information to local law enforcement. Under the portion titled “Cr i minal Matters Outside F B I J urisdiction,” the Guidelines state in relevant part:

W h en credible information is receive d b y an F B I field office concerning serious criminal activit y n ot within the F B I ’s investig a tive jurisdiction, the field office shall p r o mptly transmit the information or refer the complainant t o a law enforcement ag ency havin g jurisdiction, ex cept where disclosure would jeopardiz e an ong o ing investig ation,G O N Z A L E Z V

. U N I T E D S T A T E S 13

endang er the safety

of an individual, disclose the identity of a human source, interfere with

a human source’s cooperation, or reveal leg ally p rivileg ed inf

o r mation. I f full d i s c losure is not made for the reasons indicated, then, whenever fe a sible, the F B I field o f f ice shall make at least limited disclosure to a law enforcement ag ency o r ag enc i e s h a v i n g j u r i s d i c t i o n, and full d i s cl o sure shall be made as soon as the need for restricting disclosure is no long er present.

Guidelines § VI (C ) ( 2). The district court concluded that in spite of man d a

t o r y

- s o u n d i n g l a n g uag e—“the field office shall promptly transmit”—the Guidelines “as a whole,

. . . as w ell

a s t h e f a ctors set forth for consideration, clearly refute[ ] t h e conclusion that Guideline § VI (C)(2) mand a t ed disclosure.” Gonzalez

, 2013 W L 3 08762, at *5. The court observed that

an F B I ag ent must decide whether the information is c redible, whether the criminal activity is serious, and whether there is
any other reason relating to the F B I ’ s o t h e r operations that counsels ag ainst transmitting the information. Id.

I n our view, the district court correctly concluded that the Guidelines do not p rescribe a mandatory cour s e o f conduct with respect to the F B I ’ s sharing of information with state o r local law enforcement ag encies. L aw e nforceme n t officers
must reg ularly make ju d gment calls with respect to information sharing

. They must consider the source o f the information, its credibility

, and the a m o u n t of detail in the information. F B I ag ents, like detectives and police officers,
must evaluate whether t h e information requires immediate action, deferred action, or no action at a ll. They h ave to make
my riad judg ments a

bout how the potential for future criminalG O N Z A L E Z V

. U N I T E D S T A T E S 14

activity f its the ag e n cy ’ s mission and enforcement priorities. I ndeed, ag ents may d isag ree among th e m s e l ves about the sig nificance or credibility of information they receive. None of the answers to these questions are dictated by the Attorney General’s Guidelines. T h e Guidelines provide no criteria for determining what is “credible information” or what

c o n s titutes “serious criminal activity .” Courts hav e consistently hel d that where, as here, a g overnment ag ent’s performan c e o f an oblig a tion requires that ag ent to make judg ment calls, the discretionary function ex ception a pplies. See, e .g. , Conrad v. United States
, 4 47 F .3d 760, 765–66 (9th Cir. 2006) (holding that w here a c r iminal procedural rule
p r o v ided that the g overnment “ must take the defendant without unnecessary delay ” before a judg e, the “ex e rcise o f judg ment” w as required in d e t er m ining “how much delay is
necessary ”); Ochran v. United States , 117 F .3d 495, 500–01 (11th Cir. 1997) (holding that Attorney G e n e ral Guidelines for witness protection were discretionary ; “[ e] ven thoug h the Guidelines require the AUSA to arrang e f o r the reasonable protection of a victim w ho is threatened, they did not specify how this protection is to be p rovided”); Kelly v. United States
, 924 F .2d 355, 358, 360–61 (1st Cir. 1991) ( holding that where a DEA manual p rov i ded that any b u reau chief receiving an “alleg ati o n o r complaint” indicating a possible l e a k of confidential DEA information “will [ i] mmediately notify ” internal security p ersonnel, burea u c hiefs h ad “discretion to determine what c o mprised an ‘alleg ation’ o r ‘complaint’”).

Even if an ag ent receives information that is credible a nd
sug g ests serious criminal activity

, an ag ent may choose not to disclose information based on h i s c o nsideration of the possible effects of disclosure, such as the effect of disclosure

on an informant, other individuals, or an ong oingG O N Z A L E Z V

. U N I T E D S T A T E S 15

investig ation. An F B I ag ent must fir s t weig h these v arious considerations, e ach committed to h is d iscretion, before he “shall promptly transmit the information.” Additionally

, “the
presence of a few, isolated provisions cast in man d a t o r y l a ng uag e does not transform an otherwise sug g estive s e t o f
g uidelines into binding ag e ncy reg ulations.” Sabow

, 93 F .3d at 1453; cf. Vickers v. United States
, 228 F .3d 944, 953 (9th Cir. 2000) (concluding that a r e g ulation requiring prompt investig ation o f an alleg ation of misuse o f Servi ce-issued fi r earms is mandatory ; “althoug h I NS investig ators undoubtedly enj o y discretion in the conduct of an investig ation, this discretion does not ex tend to the question of whether to report to superiors o r to investig ate at a ll an alleg ation o f misuse o f Service-issued firearms”). V iewed in
contex t, mandatory -sounding lang ua g e s uch as “shall” does not overcome the discretionary character of the Guidelines.

Gonz a lez arg ues that while the Guidelines permit the F B I
to make partial disclosure o f information, the G u idelines do
not permit the F B I to fail to warn e ntirely

. However, nothing in the Guidelines supports Gonz alez ’s interpretation. The predicate for any a c tion by a n age n t is a judg ment that the F B I h as come into “ credible information.” Only if the ag ent makes that decision—a decision f raug ht with judg ment based

on contex t, ex per i e n ce a nd ex pertise—does the Guideline

even apply

. Only then do the G uidelines state that an officer “shall promptly transmit the information.” Even then, the Guidelines provide an ex ception: “ except where disclosure would” im p l i ca te any of the five circumstances listed,
sug g esting that in those circumstances, disclosur e is not required. F urthermore, the G uidelines p rovide that if disclosure is not made f

o r any of those reasons, then partial disclosure shall only be made “whenever feasible”—another judg ment c all. The d issent arg ues that “ any reg ulation thatG O N Z A L E Z V

. U N I T E D S T A T E S 16

sets out criteria for action” r equires government o fficials to determine “whether those criteria are or are not satisfied,” and that this does not render an otherwise mandatory p olicy discretionary

. Dissenting Op. at 34. T hat may b e true. B ut that arg ument ig nores the spec i fi c r eg ulations at issue h ere. T h e F B I ’s Guidelines clearly contemplate every thing f r om full d isclosure to p artial disclosure to n on-disclosure, thus
g iving the ag ents discretion to make a “case-b y

- c a s e evaluation” reg arding the need to d is c l o s e

. And, as we said in W eissich v. United States
, 4 F .3d 8 10, 814 (9th Cir. 1993), “A ‘case-by-case’ evaluation p r e s umes sig nificant officer discretion.” 3 The dist r i c t court p roperly concluded that the Guidelines do not prescribe a mandatory duty

.

3 Cases lik e To b a r v. Un ited S ta tes , 7 3 1 F.3 d 9 3 8 ( 9 th Cir. 2 0 1 3 ), in

w h ich o f fi c i a l s are req u ired to d eterm in e th e ex isten ce of o b j ectiv e, in d ep en den tly ascertain ab le co n d itio n s, are in ap p o site h ere

. A s t h e d issen t

o b serv es, t h e f

act th at a Co ast Gu ard en f o rcem en t m an

u al req u irin g th e

o w n er o f a v essel to b e co m

pen sated i f th ere are n o d ru g s o n b o ard an d th e

v essel is d am ag ed

, see To b a r , 73 1 F.3 d at 9 4 6
, d o es n o t g iv e Co ast Gu ard

o f f icials “ d iscretio n ” j u st b ecau se it req u ires th e o f f icials to ex ercise so m e j u d g m en t i n d eterm in in g w h eth er th e co n d i t i o n s o f th e ru le ap ply

. S ee Dissen tin g O p

. at 3 4

– 3 5

. B u t th e d issen t ig n o res th e f act th at j u d g m en ts reg ard in g co m

p en satio n to b e p aid to v essel o w n ers req u ired in To b a r an d j u d g m en ts reg ard in g w

h at in v estig ativ e ev id en ce sh o u ld b e p assed o n to

o th e r o ff ices an d lo cal of

f i ces in th e F B I’ s Gu id elin es are co m p letely d if f eren t in k i n d

. T h e criteria ag en ts m u st co n sid er in d eterm in in g

w h eth er to d isclo se in f

orm atio n in v olv e ex actly th e k i n d o f p o licy j u d g m en ts t o w h i ch th e d iscretio n ary f u n ctio n ex cep tio n ap p lies, as w e d iscu ss in d etail i n P art III.B

. T h e f act th at t h e “ stru ctu re”—th e lo g i c al f o rm —o f th e Gu i d elin es h ere an d th e Co ast Gu ard ’ s m an u al at issu e in To b a r is “ id en tic a l ” d o es n o t ren d er t h e Gu i d elin es h ere au to m atically

m an d ato ry . Dissen tin g Op . at 3 5

.G O N Z A L E Z V

. U N I T E D S T A T E S 17

2. The district cour t d id not abuse its discretion in deny ing discovery

Gonz a lez requested “ discovery reg a rding the policy s et forth in the Attorney General’s Guidelines for Domestic F B I Operations, § VI (C)(2), including a n y ag ency interpretations of that rule and the custom and practice of how t h a t r u l e is obey ed.” The district court denied Gonz al ez ’s request, concluding that the tex t of the Guidelines makes clear that it permits ag ency discretion, and thus efforts to obtain evidence
reg arding the custom and practice of h ow that rule is obey ed would be futile. Gonzalez , 2013 W L 308762, at *8.

On appea l

, G o nz alez c ontends that the district court abused its discreti o n when it denied her leave to take jurisdictional discovery

. To show that she was prejudiced b y that denial, Gonz alez seeks to supplement the re c o r d w ith a document c alled the F B I Domestic I nvestig ations a nd Operations Guide (“DI OG”), which was publi s h e d in 2011. The DI OG provides, in relevant part:

[ W ] hen an employ ee has i n f o r mation that a person

. . . who is identified or can be identified throug h reasonable means is subject
to a credible threat to his/her life or of serious bodily injury

, the employ ee must a t tempt

ex p editiously to notify other law enforcement
ag encies that have investig ative jurisdiction concerning

the threat.

DI OG § 14.7.3.2.1.1 (“Threats to I ntended Persons” )

. The DI OG further provides that “[ w] hene v e r time a nd circumstances permit, an employ ee’s decision not to provide notification to another law en forcement ag ency in theG O N Z A L E Z V

. U N I T E D S T A T E S 18

foreg oing circumstances must be approved by an ASAC o r hig her.” Id. § 14.7.3.2.2. T houg h the 2011 D I O G was created and published after the home invasion occurred in 2009, Gonz alez offers some evidence to sug g est that the DI OG “incorporates several older, separate policies” dating back to 2008. Gonz alez d id n ot raise the relevance o f t he DI OG with the district court.

Absent e x traordinary circumstances, we g enerally do not permit parties to supplement the r ecord on appea l

. United States v. Boulware

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

v. Barnhart

, 329 F .3d 1 019, 1024 (9th Cir. 2003). Gonz alez has not demonstrated that ex trao r dinary circumstances a re present here.

Even if we wer e t o c o nsider the DI O G, Gonz a lez ’s prejudice arg ument is tenuous. To be sure, like the Attorney General’s Guidelines, the DI OG e mploy s s o me mandatory

sounding lang uag e

. However, g ranting G o nz alez the assumption that the relevant lang uag e in this 2011 document applied at the time of the 2009 home i n v a s i o n , the DI OG is replete with discretionary determinations. The threat must be “credible,” and the threat mus t b e aga inst a “person who is identified o r can b e identified throug h reasonable means.” Even if these cri t eria are satisfied, the employ ee must “att e m p t ex peditiously ” to contact other law enforcement
ag encies. This is not the lang uag e of “a specific statutory [ or]
reg ulatory directive.” Berkovitz

, 486 U.S. at 542–43. A nd in this case, there is no alleg ation that Ag ent Andersen had any specific identify

ing information about any potential victims. The complaint stated only that Copley g ave Ag ent Andersen

a map showing the “app rox imate location” of the targ eted home, and g a ve no indication that this map afforded the F B I “reasonable means” by which to identify the targ eted victims.G O N Z A L E Z V

. U N I T E D S T A T E S 19

Thus, even if we were to consider the DI O G, the document d o e s not show that Gonz alez was p r ejudiced by the distri ct court’s denial of dis c o v e ry

. The district court did not abuse its discretion.

B

. Policy Judgment

W e tur n nex t to the policy judg ment prong of the discretionary function ex ception analy sis. Under this p rong , we address whether F B I dec i s i ons made pursuant to the Gu i d e lines a

re susceptible to policy judg ment. W e then address whether the “desig n-implementation” distinction applies here.

1. The F B I ’s d e c ision whether to d isclose information is the ty p e o f decision that Cong ress intended to shield from F TCA liability

Under the policy judg ment prong , we assess whether the challeng ed conduct involves the ex ercise of policy judg ment. I n determining if the conduct involve s policy judg ment, we do n o t l ook to an ag ent’s subjective weig hing of p olicy considerations. Rather, we ex amine t h e nature of the Government’s action—or in this case, o mission—and decide whether it is “su s c eptible” to policy analy sis under an objective assessment. Gaubert , 499 U.S. at 325.

B e caus e w e conclude above that the Guidelines p ermit discretion, a “ s t r ong presumption” arises that the F B I ’s actions were g rounded in p olicy considerations. Id. a t 324. Therefore, w e must p r e s u m e that when the F B I declined to disclose information reg arding the Minutemen threat to local law enforcement, its a ctions r esulted from a policy judg ment. See, e.g. , Alfrey v. United S tates , 276 F .3d 5 57, 564 (9th Cir.G O N Z A L E Z V

. U N I T E D S T A T E S 20

2002) (concluding that because “federal r eg ulations e x pres s ly
g ive p rison officials discretion in how to respond to reports o f threats[ ,]

. . . . it must be presumed that the o f ficials’ choices in responding to the r eport of [ an inmate’s] threat were based in public policy ”).

Eve n a b s e n t t h a t presumption, the F B I conduct challeng ed here c learly involves the ty pe of p olicy judg ment protected b y the discretionary function ex ception. The investig ation o f crime involves policy judg ments at the core of the ex ecutive branch. I n investig ations, no less than prosec utions, the

ex e c utive must consider the r eliability of the information, the relative importance o f the crime, and the ag e n c y ’s mission and resources. See R ed Lake Bank of Chippewa Indians v

. United States
, 800 F .2d 1187, 1193
, 1 1 9 8 (D.C. Cir. 1 986) (holding that where F B I alleg edly received “warning s that something mig ht happen” and “failed to ma k e a d equate plans” to prevent a v iolent confrontation on Native American land, the d iscretionary function ex cept i o n applied because “[ l] aw enforcement personnel receive warning s, rumors a nd threats all the time [ and] are constantly required to assess the reliability of the information t h e y receive, and to allocate

scarce p e rsonnel resources according ly ”). As the Guidelines make evident, any ag ent choosing w hether to d isclose information must weig h the credibility and seriousness of the threatened criminal activity ag a inst the possible risks—to an informant, if disclosure mig ht r eveal his cooperation with the
g overnment; to an intended victim, if disclosure mig ht put him in g reater dang er; to other potential victims, if disclosure mig ht also endang e r them; o r t o o ng oing investig ations, if disclosure m ig ht jeopardiz e their success. These considerations surely implicate social, economic, a nd political judg ments. See V a r i g Airlines

, 467 U.S. at 814. T h u s , the F B I ’ s nondisclosure of information is the ty pe o fG O N Z A L E Z V

. U N I T E D S T A T E S 21

conduct to which a policy analy sis could apply

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

Our conclusion finds support in our decision in Alfrey v. United S tates

. There, the wife of a prison inmate a lleg ed that prison officials responded neg lig ently to threats by her husband’s cellmate, resulting in her husband’s death. 276 F .3d at 563–64. Specifically

, she a rg ued that the officers failed to search the two men’s cell in a manner t h a t w o u ld have e nabled them to find the m u r der weapon and failed to

run an investig atory search on the cellmate using the p rison’s computer database. Id. W e con c l u d e d that both omissions implicated social and public policy considerations. I d. at 565. “A prison official’s judg men t about how ex tensively to search

a cell,” we e x plained

, “ involves a balancing of the potential risk, on the o n e h a n d

, ag ainst the inmate’s interest in being free from o verly intrusive search e s , o n the other.” Id. Moreover, “to decide what steps to t a k e in response to a reported threat, an officer must set priorities among all ex tant risks: the r isk p resented by the reported threat, along with the other risks that inevitably arise in a p r i s o n .” Id. Our reasoning in Alfrey applies equally to the F B I ’ s nondisclosure of information. T he F B I ’s judg ment about how to respond to

a reported threat and h ow ex tensively to disclose information
to other law enforcement org aniz a ti ons implicates many risks, all of which must be weigh e d i n accordance with the F B I ’s social and public policy judg ments.

W e note that our decision remains the s a m e w hether o r not Ag ent Andersen’s decision in fact involved the subjective weig hing of policy c onsider a t i o n s. Gonz alez contends that the g overnment may be liable for Ag e nt Andersen’s a c t i o ns if his f ailure to disclose the information in his possession was not actually the r esult of an ex ercise of p o licy -basedG O N Z A L E Z V

. U N I T E D S T A T E S 22

d i scretion. A laz y or careless failure to disclose, Gonz a l e z posits, would not be shielded under the discretionary function

ex c e ption. W e disag ree. To the contrary , the g overnment is
not r equired to prove either that an affirmative decision was made, or that a

ny d ecision actually involved the weig h ing o f policy considerations, i n o r der to claim immunity

. Terbush

v. United States
, 516 F

. 3d 1125, 1136 n.5 (9th Cir. 2008) ( “Of
course, after Gaubert w e do not need actual evidence that policy -weig hing was undertaken.”); Kennewick Ir rigation Dist. v

. U nited States
, 880 F .2d 1018, 1028 ( 9th Cir. 1 989) (“[ W ] e [ have] ex p ressly rejected [the] arg ument that the discretionary function ex ception cannot apply in the absence of a conscious decision.” (internal q uotation marks o mitted)). I n Alfrey

, we concluded that the prison officials’ failure to run

a computer database se arch required weig h ing p olicy considerations—including balancing “ t h e risk presented b y the reported threat, along with the other risks that inevitably arise in a prison”—without inquiring into whether a ny prison official was in fact g u ided b y those c onsiderations. 276 F .3d at 565.

Here, too, we need not ex amine whether Andersen d id o r did not w eig h the Guidelines’ policy consi d e r ations. The discretionary function ex ception a pplies so long as the challeng ed decision is o ne to which a p olicy a naly sis could apply

. 4 W

eissich

, 4 F .3d at 8 13. W e ma d e c l ear the

4 Ev en if th e FB I n eg lig en tly co n d u cted an in v estig atio n , th at d o es n o t d etract f ro m th e f

act th a t th e m an n er of co n d u ctin g an i n v estig atio n , in clu d in g d ecisio n s to s h are o r n ot t o sh are in f o r m a t i o n w ith o th er ag en cies, i s rif

e w ith d iscretio n an d p o licy j u d g m en t an d n o t ap p ro p riate f o r j u d icial rev iew in a to rt actio n

. S e e G a u b ert , 4 9 9 U.S. at 3 34 ; Ken n ewic k

, 8 8 0 F.2 d at 1 0 29 (“ [I]f th e p resen ce o f n eg l i g en ce w ere allo w ed t o d ef

eat t h e d iscretio n ary f

u n ctio n ex cep t io n , th e ex cep tio n

w o u ld pro v id e a m eag er sh ield in d eed ag ain st to rt liab ility .”). T h e statu teG O N Z A L E Z V

. U N I T E D S T A T E S 23

fundamental problem with adopting Gonz a lez ’s proposed approach in I

n r e Consolidated U.S. Atmospheric Testing Litigation
, where we c o n s i d ered w hether the discretionary function ex ception shielded the g overnment’s a lleg ed failure
to warn nearby military and civilian persons of the h ealth dang ers of its nuclear testing activities:

I f the decision to issue or n ot to issue a “warning ” is within the discretionary function

ex c eption, then log ically the fa i l ure to consider whether to issue one necessarily falls within the ex ception a s well. Any other i n t erpretation of the statute would creat e i n s u r m o u n t a b l e p r o b l e m s i n i t s adminis t r a tion: W h at would constitute a “decision”? W o u ld a d ecision to defer decision be a “decision”?

820 F .2d 982, 998–99 (9th Cir. 1987). Gaubert and our case law require us to c o nclude that nondisclosure resulted from

a policy judg ment , w hether or not the judg ment was neg lig ently

made or not made at all. 5

m ak es clear th at w

h ere t h ere is d iscretio n , th e g o v ern m en t h as n o t w aiv ed its so v e r e i g n i m

m u n ity “ w h eth er or n o t th e d iscretio n in v o l v ed [is] ab u sed .” 2 8 U.S.C. § 2 6 80 (a).

5 T h e d issen t cites Miller v. Un ited S ta tes , 1 6 3 F.3 d 5 9 1 (9 th Cir. 1 9 9 8 ), f o r t h e pro p o sitio n th at th e g o v ern m en t m u st sh o w th at o n e o f th e f iv e

“ ex cep tio n s” t o d isclo su

re actu ally ap p l ied h ere. Dissen t in g Op

. at 3 8

– 4 0

. In Miller

, w e d eterm in ed t h at Fo rest Serv ice g u id elin es ab o u t h o w to f ig h t f ires g av e th e Fo rest Serv ice d iscretio n to d ep art f ro m th e g u i d elin es i n a

“ m u ltip l e f ire situ atio n ,” a situ atio n th at w as clearly p res e n t d u rin g th e

ev en ts g iv in g rise to th e su it. Id

. at 5 9 4– 9 5

. A cco rd in g ly

, t h e d issen t

reaso n s t h at th e g o v ern m en t m

u s t d em o n strate h ere th at a situ atio n req u irin g n o n

- d isclo su

re w as p resen t

. B u t Miller d o es n o t req u ire th is—inG O N Z A L E Z V

. U N I T E D S T A T E S 24

2. The d esig n-implementa t i o n d istinction does not a

pply to permit suit ag a inst the g overnment in this case

Gonz a lez argu es that the F B I ’s failure to d isclose information did not implicate p oli c y concerns u nder a doctrine that we have termed the “ desig n-implementation distinction.” See W

hisnant v. United S

tates , 4 0 0 F .3d 1177, 1181 n.1 (9th Cir. 2005). W e have held that, in some cases, “the design of a c ourse of g overnmental action is shielded b y t h e d i s c r e t i o n a r y f

u n c t i o n ex c e p t i o n , w h e r e as t h e implementat i o n of that course of action is not.” I d

. at 1181. So, for ex ample, the g o vernment ex e rcises policy judg ment when determining whether and when to construct a lig hthouse, but once it has constructed that lig hthouse, it must “use due care to make certain that the lig ht was kept in g ood working order.” Indian Towing Co. v. United States
, 350 U .S. 61, 69 (1955). T hus, on occasion, we have r equired the g overnment to face liability for “a failure to effectuate policy choices already made.” Camozzi v. Roland/Miller & Hope Consulting Grp.
, 8 66 F

. 2d 287, 2 90 (9th Cir. 1989). H o wever, as w e discuss in g reater detail b elow, we h a v e cautiously applied this doctrine and we have applied it larg ely in c ases involving publi c health and safety

, a nd in circumstances where a private party would likely be h eld

f act, Miller ag rees th at a d ecisio n “ n eed n o t b e actu ally g ro u n ded in p o licy

co n sid eratio n s ” f

o r th e d iscretio n ary f

u n ctio n ex cep tio n to ap p l y

. Miller

, 1 6 3 F.3 d at 5 9 3

. Fu

rth erm o re, d eterm in in g w h eth er th e “ m

u ltip le f ire situ atio n ” trig g er w as p resen t d id n o t itself req u ire a p o licy j u d g m en t (i.e., th ere e i t h e r is m ore th an o n e f ire, o r th ere is n o t). Here, b y co n trast, d eterm in i n g w

h eth er th e co n d itio n s p erm ittin g n o n

- d isclo su re are ev en p resen t req u ires t

h e FB I t o m ak e th e k in d s o f po licy j u d g m en ts p ro tected b y th e d iscretio n ary f

u n ctio n ex cep tio n

. T h e g o v ern m en t n eed n o t d em on strate th at i ts d ecisio n n ot to d isclo se w as actu ally b ased o n a p o licy

an aly sis.G O N Z A L E Z V

. U N I T E D S T A T E S 25

l iable for the same conduct or omission. See, e.g. , Terbu s h

, 516 F .3d at 1132–33 (maintaining was tewater manag ement sy stem); Bolt v. United States , 509 F .3d 1028, 1033–34 (9th Cir. 2007) (removing s n o w from parking lot); Soldano v

. United States
, 453 F

. 3d 1140, 1 148

– 4 9 (9th Cir. 2 006) (setting safe speed limit o n road); W h isnant
, 400 F .3d at 1182–83 (removing mold from meat co mmissary); Marlys Bear M e d i c i n e v. United States
, 241 F .3d 1208, 1215 (9th Cir. 2 001) ( monitoring safety at log g ing operation); Camozzi
, 866 F .2d at 290 (inspecting floors for ung uarded opening s).

Gonz a lez offers two theories for why we shou ld employ this doctrine here. F irst, she a rg ues that while the A t t o r n ey General’s orig inal desig n and promulg ation of the Guidelines

are protected policy judg ments, decisions i m p lementing the Guidelines are mere unprotected “pr o f e ssional judg ments.” Second, she sug g ests that the g overnment may also be liable under the d esig n-implementation theory if Ag ent Andersen had, in fact, decided to disclose the info r m a t i o n he h ad to local law enforcement, but the F B I neg lig e n t ly failed to implement that decision. 6

6 G o n zalez n ev er alleg ed t h at A g en t A n d ersen actu ally m ad e a d ecisio n to alert lo cal law en f

o rcem en t

. A t m o st, th e co m p lain t alleg ed th at A g en t A n d ersen pro v id ed th e m a p t o th e P h o en i x b ran ch o f th e FB I. T ran sm ittin g t

h e m ap f ro m o n e FB I o f

f ice to an o th er d o es n o t in dicate th at A n d ersen in ten d ed to alert lo cal law

en f orcem en t o f

th e th reat.

Go n zalez co n ten d s th at s h e sh o u ld h av e b een p erm itted d isco v ery to

o b tain “ t h o se FB I d o cu m en ts t

h at d escrib e w

h at actio n s w ere tak en b y FB I
p erso n n el af

ter learn in g o f t

h e h o m e i n v asio n p la n s d i s cu ssed at th e

recru itin g m e e t in g arran g ed by FB I in f o rm an t Ro b ert Co p ley .” A s w e d iscu ss b elo w , h o w ev er, t h is w as n o t an ab u se o f

d iscretio n

b ecau s e an y

n eg lig en ce th at o ccu rred as a resu lt o f A g en t A n d ersen ’ s actio n s i s n o t

su f f icien t to b rin g th is case w ith in th e d iscretio n ary f u n ctio n ex cep tio n

. S ee a lso su p r a n o te 3

.G O N Z A L E Z V

. U N I T E D S T A T E S 26

Neither t heory is sustainable. F or the reasons we have discussed, F B I ag ents responsible for f ollowing the Attorney General’s Guidelines are still imbued with a n e n ormous

a mount of discretion a

nd judg ment in the course of t h ei r investig ations. W e have made clear that the doctrine does not permit liability w here

, as here, “the implementation itself implicates policy concerns.” W hisnant

, 400 F .3d at 1182 n.3. To c on clude otherwise would simply swallow the two-step, discretionary act and policy judg ment analy sis th e S u p reme Court set forth in Berkovitz

. See 486 U.S. at 536.

Gonz a lez ’s alternate theory —that Ag ent Andersen d e s ig ned a p lan that he o r others failed to implement properly —fares no better. W hatever Andersen decided to do, and whatever his colleag u es in Phoenix did in response, those
acts were taken in the c ou r s e o f an ex ercise in p olicy judg ment. The fact that o ne or more ag ents concocted a p lan does not make that plan an irreversib l e ag ency mandate. Ag ent Andersen does not bind the Unite d S t a t e s in tort b y deciding to share o r n ot to share information, e v e n if he (or someone else) does not follow up on his plan.

Our decision in W

e issich v. U

nited States i s i nstructive. There, we co nsidered whether the discretionary function

ex c e ption immuniz ed the United States Probat i o n Service’s (“USPS”) f

ailure to supervise ad e q u ately a p robationer w ho threatened to kill the district attorney who p rosecuted him, and later successfully carried out h is threa t

. 4 F

. 3d at 812. After concluding that reg ulations g ove r n ing p robation conditions did not impose a mandatory course of conduct on probat i o n officers, we concluded that supervisory decisions require balancing an o fficer’s “ dual oblig ations to (1) protect the public, and (2) p r o m o t e the rehabilitation of the probationer.” Id. at 814. Plaintiffs there made a simi l arG O N Z A L E Z V

. U N I T E D S T A T E S 27

arg ument to the one w e confront here, contending that USPS “neg lig e ntly supervised [ the probationer] by failin g to carry

o u t its own plan of supervision and failing to enforce t h e terms of [ his] probation.” I d. Sig nificantly

, we declined the pla i n t i ff’s invitation to sift throug h the probation officers’ actions and identify those indic a t i n g USPS’s failure to imp l e ment their probation plan. Rather, we acknowledg ed that while “[ p] erhaps the o fficers should have decided to supervise [ the probationer] more closely ,” and “ [ p] erhaps

. . . unannounced home visits mig ht h ave been more app r o p r i a t e,” these w e r e “judg ment calls.” Id. The United States had no liabili ty “even if it w as neg lig ent in supervising ” the probationer. Id. at 815.

W eissich demonstrates that even if the F B I n eg lig ently failed to carr

y o u t i t s own plan o f disclosing information to local law enforcement, our focus remains on the discretionary and policy -based nature of the Guidelines’ di s c l osure determination. B ecause the Guidelines are discretionary a nd involve policy considerations, we c a nnot parse o ut the F B I ’s nondisclosure into “ d ecision” and “implementation” phases. Nor may w e conclude that simply b ecause the A t t o r n ey G e n e r a l e m p l o ye d p o l i c y- b a s e d c o n s i d e r a t i o n s i n promulg a ting the Guidelines, any subsequent decision taken pursuant to those Guidelines is dev o i d o f policy -based considerations. Such conclusion s w ould permit the desig n

impleme n t a tion distinction to override the discretionary function ex cept i o n analy sis in contravention o f the Court’s clear c ommand: we look first to whether a policy permits an ag ent discretion, and if it does, then we must presume that an ag ent’ s act or omissions are g r ounded in policy

, whether o r not we suspect that the discretion involved has been abused. Gaubert , 499 U.S. at 324; 28 U.S.C. § 2680(a).G O N Z A L E Z V

. U N I T E D S T A T E S 28

F undamentally

, the decision w h e t her or not to d isclose informa t i on u nder the G uidelines, like the day -to-day decisio n s involved in rehabilitating a probationer, requires considerations of public s afety

, allocation of scarce resources,

a n d the likelihood of success. See W eissich

, 4 F .3d at 8 1 4 ;

see also Sabow

, 93 F .3d a t 1453. B ecause such interests will often conflict o r w i l l not be apparent, balancing the v arious political

, s o c ial, and economic c onsiderations is inherent in the officer’s judg ment. See W eissich

, 4 F .3d at 814. F ar from “ordinary occupational or p rofessional judg ments,” the F B I ’s decision whether to d isclose information “clearly involve[ s] the t y p e of policy judg ment protected by the discretionary

f u n c t i o n e x c e p t i o n

. ” A l f r e y , 2 7 6 F

. 3 d a t 5 6 6 (“[ I ]nvestig ations by federal officers clearly involve the ty pe of policy judg ment protected by the discret i o nary -function

ex c e p tion.”); cf. Soldano

, 453 F .3d at 1148 (“Setting a safe speed limit for the Road as desig ned

. . . is essentially a matter of scientific and p rofessional judg ment.”); S i g ma n v

. United States
, 217 F .3d 785, 795–96 (9th Cir. 2 000) (concluding that the discretionary function ex ception d o e s not apply to a “g arden-variety medical malpractice” c laim ag ainst

a military phy sician, because it involves “a function that is

a nalog ous to functions performed by professionals i n t h e private sphere every day ”). T h e FBI ’ s judg ment whether to disclose information und e r the Guidelines implicates p olicy considerations for the reasons described above, and therefore,
t h e d esig n-implementation distinction does not apply on the s e facts.

***

The Guidelines vest discretion and policy judg ment in the F B I

. Thus, the district c o u r t properly concluded that the
g overnment satisfied both p ron gs o f the discretionaryG O N Z A L E Z V

. U N I T E D S T A T E S 29

function ex ception. M o r e over, the district judg e did not abuse her discretion in deny ing Gonz a l ez ’s request for jurisdictional discovery

.

I V

I t is tempting to w onder w hether a s i m p le warning to local law enforcement c o u ld have p revented the trag ic deaths of Gonz alez ’s husband and daug hter. B ut we are not charg ed with passing upon the wisdom of the g overnment’s ex ercise of d i s c retion, and the law does n o t permit us to do so, “whether or not the discretion involved [ is] a bused.” 28 U.S.C. § 2680(a). Choices such as these—t o d i s c l o se o r not to disclose—are among the judg ment-laden decisions the discretionary f

unction ex ception was e nacted to shield

. W e decline to use the tort law s t o m o nitor the ex ecutive’s

ex e r cis e of its judg ment. The judg ment of the district court is

AF F IRMED.G O N Z A L E Z V

. U N I T E D S T A T E S 30

B ERZ ON, Circuit J udg e , dissenting :

Gina Gonz alez

, the plaintiff in t h is action, alleg es that a F ederal B ureau o f I nvestig ation (F B I ) ag ent knew of serious threats to her family

. 1 The information a bout the threats was l ost within the ag ency and so was not disclosed to l o c al l a w enforcement, as the F B I ’ s p olicy requires. B ecause no action

was taken to follow up on the threat, Gonz alez ’s h usband a nd nine-y ear-old daug

hter were killed and she was injured.

The majority holds that, u n der the F ederal Tort Claims Act (F TCA), 28 U.S.C. § 2671 et s e q

. , the federal
g overnment cannot be held to answer in tort for this entirely avoidable trag edy

That cannot be.

I

Gonz a lez ’s central alleg ation is that despite a mandatory F B I policy so requiring — “[ w] hen cred i b le information is received b y an F B I field office concern i n g s e rious criminal activity not within the F B I ’s investig at ive jurisdiction, the field office shall promptly transmit the information or refer the c omplainant to a law enforcement ag ency hav i ng jurisdiction,” Attorney G eneral’s Guideline s f or D omestic F B I Operations § V I (C)(2) (“Guidelines”) — there was no disclosure t o local authorities. The information was

1 T h is case w as d ecid ed b elo w on a m o tio n to d ism iss f o r lack of su

b j ect

m atter j u risd ictio n p u rsu an t to Fed eral R u le o f Civ il P ro ced u re 1 2 (b )(1 ). T h e d istrict co u rt d id n o t g ran t j u r i s d i ctio n al d isco v ery , so w e tak e Go n zalez’ s alleg atio n s as tru e. S ee S a b ow v. Un i ted S ta tes , 9 3 F.3 d 1 4 4 5
, 1 4 4 9 (9 th C ir. 1 9 9 6 ); Au g u stin e v. Un i ted S ta tes , 7 0 4 F.2 d 1 0 7 4
, 1 0 7 7 (9 th Cir. 1 9 8 3 ).G O N Z A L E Z V

. U N I T E D S T A T E S 31

forwarded w ithin the FBI b ut then, according to Gonz a lez

, simply lost.

There are ex ceptions to the F B I ’s disclosure or re ferral requirement — “where disclosure would jeopardiz e an ong oing investig ation, endang er the safety of an ind ividual, disclose the identity o f a h u m an source, interfere with a human s ource’s cooperation, o r reveal leg ally privileg ed information.” Id. B ut the complaint d o e s n ot indicate that
any F B I investig ation was imp l icated by the non-disclosed information or that any other ex ception to the mandatory disclosure policy

applied.

The G overnment has not asserted otherwise. I nstead, the Government’s position is essentially hy pothetical — if one o f the ex ceptions were applic able, then the nondisclosure decision would be discretionary

, and t h e r e is no F TCA jurisdiction over discretionary acts. 28 U.S.C. § 2680(a).

B u t t he loss of information subject to a mandatory disclosure policy is not an “ex ercise of policy judg ment,” United States v

. Gaubert

, 499 U.S. 3 15, 326 (1991) (quoting Berkovitz v. U

nited States
, 486 U.S

. 531, 538 n.3 (1988)). Nor does the ex istence of hy pothetica l l y applicable

ex c e ptions to a mandatory requirement c onvert an otherwise mandatory policy into a discretionary one. I r espectfully

— but emphatically

— dissent.

I I

Gon z a l e z ’s story , recounted in detail in the majority opi n i o n , i s a distressing one by any standard. I n summary : One early morning in 2009
, three members of an e x tremist “Minutemen” g roup entered G o n za l e z’ s h o u s e w e a ring masksG O N Z A L E Z V

. U N I T E D S T A T E S 32

and carry ing g uns. T h e y murdered her husband in f ront o f her. After one of the invaders a s k e d G o nz alez ’s nine-y earold daug hter, B .F
., whether h er sister w as home, he shot B .F

. in the face and killed her. T h e i n t r uders shot G onz alez a s well, several times, and likely would h ave killed her had she
not defended herself with her husband’s han d gu n while calling for help.

Trag ically

, these events were prevent a b le. An F B I informer w as involved in planning the attack. He provided an F B I ag ent, Chris Andersen, with information abo u t the p lan to “hit[ ] the house like a SW AT team.” The informant g ave Andersen a map, drawn by the leader of the pl a nned attack, showing the approx imate location of the house, and r eported that he believed the plotters posed a r eal and imminent threat.

So w hat h appened? Andersen p rovided the map to the F B I ’s Phoenix office, but the office misplaced the map. Neither Andersen nor any one e lse notif i e d t h e Pima County Sheriff’s Department, the local law enf o r cement ag ency in charg e of the town in which G onz alez ’s home w a s l o ca ted. Had the Sheriff’s department been notifie d

, it could have arrested the org aniz er of the attack, as she was known to the Sheriff’s Department and could have been charge d with conspiring to carry

out the attack before it occurred.

I n short, Andersen’s well-substantiated information o f an impending a ttack never made it to Pima County officials. Gonz a lez ’s hu s b a n d and daug hter died preventable deaths. The majority hol d s t h at the United States cannot be h eld liable for those deaths, because the F B I h ad the d iscretion to withhold information from local law enforcement that could have saved two lives.G O N Z A L E Z V

. U N I T E D S T A T E S 33

I I I

“The a pplicability o f the discretionary function ex c eption is determined by a two-part test.” Miller v. United States
, 163 F .3d 591, 593 (9th Cir. 1 998). F irst, we must determine whether the “ challeng ed conduct

. . . is a matter of choice for the acting employ ee,” as “the discr etionary function

ex c e ption will not apply when a f ederal statute, reg ulation, o r policy sp e c ifically p rescribes a course of action for an employ e e to follow.” Berkovitz , 486 U.S. at 536. I f that test is satisfied, we must also d e t e rm ine w hether “the discretion involves the ty

pe of judg ment that the ex ception is desig n ed
to shield,” Mille r , 163 F .3d at 593, namely “leg islative a nd administrative decisions g rounded in social, economic, a nd political policy ,” Gaubert

, 499 U.S. 315, 323 (1991) (quoting Un i t e d States v

. S

. A

. Empresa de Viacao A erea Rio Grandense ( Varig Airlines)

, 467 U.S. 797, 814 (1984)). The conduct challeng ed here — the F B I ’s failure to d isclose information to local law enforcement age n c i es — does not meet either prong

of the test and is therefore not shielded by the discretionary

function ex ception.

A

I n the first place, and most important, the F B I does have

a mandatory disclosur e p olicy

, and it was applicable to the information ag ent Andersen a cqu i r e d

. That policy commands F B I personnel in no uncertain terms a s to what t o d o with “credible information

. . . concernin g serious criminal activity

, ” using mandatory lang uag e: “[ T] he field office shall promptly transmit the information or refer the complainant to

a law enforcement ag ency h a v i ng jurisdiction.” Guidelines § VI (C)(2) (emphasis added).G O N Z A L E Z V

. U N I T E D S T A T E S 34

There are five specific ex ceptions to this mandatory directive — where d isclosure would “jeopardiz e an ong oing investig ation, e ndang er the safety of an ind i v i d ual, d isclose the identity of a human source, interfere with a h uman

s o u r c e’ s c o o p e r a t i o n , o r r e v e a l l e g a l l y p r i v i l e g e d information.” Id. I f o n e o f these ex c eptions applies, the Gui d e l i nes, ag ain using mandatory lang uag e , require that “whenever feasible, the F B I office shall make at least limited disclosure to a law enforcem ent ag ency or ag encies h aving jurisdiction, and full disclosure shall be made as soon as the need for restricting disclosure is no long er pr esent.” Id. (emphasis added). The Guidelin e s t herefore “specifically prescribe[ ] a course of a c tion for an employ ee to follow,” a nd “the employ ee has no r ig htful o ption but to adhere to the directive.” Berkovit

z , 4 86 U.S. at 536. B ecause 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 G uidelines do r equire that F B I field o ffice r s make certain evaluations— whether information is “ credible,” whether it relates to “serious criminal activity ,” and whether the e x ceptions do or do not apply

. B ut any reg ulation that
sets out criteria for action requires that the responsible
g overnment officials determine whether those criteria are o r

are n ot satisfied. An o therwise m a n datory policy does not become d iscretionary b e cause it applies only in c ertain specified circumstances or beca u s e i t has clearly laid out

ex c e ptions. I f it did, then no “ f e d e ral statute, reg ulation, o r policy ” Berkovitz

, 4 86 U.S. at 536, wo u ld survive the discretionary function ex ception; e v ery such proscri ption is limited to d escribed c ircumstances, and the res p o nsible

e m p loy ees have to decide whether those circumstanc e s obtain.G O N Z A L E Z V

. U N I T E D S T A T E S 35

I n Toba r v. Un i ted States
, for instance, we held that a Coast G uard enforcement manual was mandatory under the first Berkovitz prong . 731 F .3d 938, 945–47 (9th Cir. 2013). The enforcement manual state d t hat “[ i] f there are no drug s

on board, and there are d amag es or losses sustained b y the vessel, in accordance to the U.S. laws and in a manner comply ing with international laws, the owner of the vessel will be compensated, as long as neither the vessel n or 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. I t provides that when certain conditions

ex ist — damag es or losses sustained by the vessel — federal employ e es “will” — using mandatory lang uag e — take a specific action (compensating the owner) unless ( ex ceptions) particu l ar circumstances ex ist (involvement by the vessel o r the crew in illicit actions). A Coast Guard employ ee would have to make several evaluations t o f o l l ow this policy

— (1) whether the compensation requested is “in accordance to t h e U.S. laws”; (2) how to provide compensation “in a

manner comply ing w ith international laws”; ( 3) what it means to b e “involved” in illicit a ctions in the past, and (4) whether

a particular action was “ill i c i t .” T he need for such evaluations, which could b e fa i r l y complex

, did not convert the mandatory compensation requirement in the Coast Guard manual into a discretionary policy

. Id. The holding of Tobar

, in other wor d s , i s that a policy is n ot discretionary simply b ecause it directs an employ e e “do x , unless y .” Yet
, t h a t i s what the majority

holds here.

I n contrast, the cases in w hich we have found that p olicy manuals do set out discretionary criteria, not mandatory directives, h a ve pointed to specific indices that the

e stablished policy at issue “d[ id] not prescribe courses of action that must be followed.” Sabow v. Unit e d S tates ,G O N Z A L E Z V

. U N I T E D S T A T E S 36

93 F

. 3d 1445, 1452 ( 9th Cir. 1 996); see a l s o W eissich v

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

, for ins t a n c e, the manual stated that “the circumstances of a particular case will naturally g o vern the actions take n t o protect and preserve the phy sical evidence,” and noted that its provisions were simply

“considered g enerally valid g uides.” Sabow

, 93 F .3d at 1 452. I n W eissich

, the policy specified that “[ a] warning is not required in every case,” and that whether
to issue a warning “depends u p on a selective case-by -case

e valuation,” based on a non-ex haustive list of facto r s

. W eissich , 4 F .3d at 813.

Most recently , in Chadd v. United States
, 794 F .3d 1104 (9th Cir. 2015), we foun d a National Park p olicy discretionary in the public safety contex t where the relevant manual specified that “[ t] he means by which p ublic safety

concerns are to be addressed is left t o the discretion o f superintendents a

nd o ther decision-makers at the park level,” and that where a certain animal species creates a safety haz a rd, it “will be m a n a ge d — u p to and including

e r a d i c a t i on — if

. . . control is prudent and feasible.” Id. at 1110. These p olicies, we concluded, “impose[ ] no p articular, mandatory

course of action.” Id.

The majority ig nores the determinative distinction in our

case law between polic ies that direct mandatory actions absent an a

pplicable ex ception and those that lay out g eneral

cr iteria for discretionary actions. I t then g oes on to c ite Sabow for t h e proposition that “the presence of a few, isolated provisions c ast in mandatory langu a g e does not transform an otherwise sug g estive set of g uidelines into binding ag ency reg ulations.” Sabow

, 9 3 F .3d at 1453

. B ut here, the r elevant, mandatory lang uag e in the F B I disclosure provision is central to the d irecti v e, not “isolated.” And theG O N Z A L E Z V

. U N I T E D S T A T E S 37

majority points to no lang uag e at all i n d i cating that these Guidelines should be considered “sug g estive.” W ithout
any thing like the ex plicit invocation of “discretion” in Chadd

o r the “case-by

-case evaluation” lang uag e in W eissich

, t h e F B I ’ s p rescribed policy is that serious, substantiated threats

— whic h t h e s e clearly were — are required to be communicated to local law enforcement absent an applicable

ex c e ption. See Chadd

, 794 F .3d at 1110; W eissich

, 4 F

. 3d at 813; see also In re Glacier Bay
, 71 F .3d 1447, 1452–53 (9th Cir. 1995).

Moreover, and critically

, V ickers v

. U

nited States
, 228 F .3d 944 (9th Cir. 2000), a lso cited by the majority

, adds

an important consideration applicable here: Reporting requirements can be mandatory even if they coex ist in p olicy
g u i d e l i n e s a l o n g s i d e d i s c r e t i o n a r y f u n c t i o n s , l i k e investig ation. Id. at 953; see also Navarette v. U nited States
, 500 F .3d 914, 917 (9th Cir. 2007). Respondin g t o a s i milar claim of discretionary function to the o ne made here, Vickers held that “althoug h I

N S investig a tors undoubtedly e njoy discretion in the conduct of an investig ation

, this discretion do es n ot ex tend to the question of whether to report to superiors or to investig at e a t a ll an alleg ation o f misuse o f Service-issued firearms,” where policy g uidelines made such reporting

, a

nd so m e i nvestig ation, mandatory

. Vickers

, 228 F .3d at 953 (emphasis in orig inal).

Here, it is the failure to d isclose — that is, report — the threat that is at issue, no t t h e f a i lure to conduct an adequate investig ation into those threats, that is the crux of Gonz a lez ’s suit. Gonz alez ’s complaint is only that the F B I did not report to local law enforcement information al r e a d y in its possession, as its mandatory G uidelin es required. The majority ’s mantra that this case concerns “investig ation a ndG O N Z A L E Z V

. U N I T E D S T A T E S 38

prosecution of crime” is thus simply wrong , a n d i ts voluminous c i tations to the discretionary nature o f criminal investig ations and prosecution are similarly beside the point.

I n sum: Any mandatory p olicy will re quire some deg r ee of interpretation by those who must apply i t

. I f the
g overnment w ere deemed to ex ercise the kind of “ discretion” contemplated by

the discretionary

function ex emption every time a n employ ee is required to read and a pply stipulated considerations that, if they ex ist, require that certain steps be taken, all, o r nearly all, oth e r w i se mandatory g overnment policies would become discretionary

.

I would h old that the F BI ’ s G u i delines here at issue a re mandatory

. T he F T CA’s discretionary function ex ception is th e r efore not applicable at all to Gonz a lez ’s claim that the F B I neg lig ently failed to disclose to local law e n fo rcement threats that, under the ag ency ’ s p o licies, sh ould h ave been
convey ed.

B

Even if the ex ceptions to the F B I ’s mandatory disclosure policy did make decisi ons u nder those ex ceptions discretionary with respect to the F TCA, the Government still
must prove t h a t those ex ceptions in some sense were implicated h ere. The Government bears the burd e n o f proving the discretionary function ex ception a p p l i e s , T e r b ush

v. United States
, 516 F .3d 11 2 5, 1128 (9th Cir. 2008). I t cannot meet that burden b y simply say ing — without any evidence — that the Guidelines’ ex ceptions might have applied. Althoug h this Court has h eld tha t a d e cision “need
not be a ctually g rounded in policy c onsiderations” for the discretionary function ex ception to apply

, Miller

, 163 F .3d atG O N Z A L E Z V

. U N I T E D S T A T E S 39

593, 2 we h ave never h eld that the G overnment need not

a ffirmatively invoke the d iscretionary aspects of a hy br i d policy — that is, one that is g enerally mandatory

, but h a s limited ex ceptions.

Miller itself well illustrates that the Government must at l e ast invoke the discretion-g ranting ex ceptions to a n otherwise mandatory policy apply

. I n Miller

, property

owners sued the F o r est Service f or d a mag es to their property caused by a fo r e st f

ire escaping from a National F o rest. 163 F

. 3d at 592. The court noted mandatory lang uag e in the F orest Service’s g uidelines about how Forest Service

e m p l o y e es should fig ht fires, id. at 594, but held that the discretionar

y f u nction applied nonetheless. Miller so concluded in part because the g uidelines also noted th at i n “multiple fire situation[ s] ,” limited reso u r ces meant that employ e es should only “ attempt ” to follow their preplanned
response, which conferred d iscretion on the F orest Service a s to how b est to allocate resources. Id. a t 594–95 (emphasis in orig inal). Miller thus contains a hy b rid policy

similar to the G uidelines, as construed by the majority : Mandato r y la n gu ag e required g overnment officials to do x , with an

2 I h av e p rev io u sly criticized t h is statem en t in Miller as co n trad ictin g th e Su p rem e C o u rt’ s h o ld in g in G a u b ert

— viz.
, th at th e d iscretio n ary f u n ctio n ex cep tio n “ p ro t ects o n ly g o v ern m en tal actio n s an d d ecisio n s b a sed o n co n sid eratio n s o f p u b l ic p olicy .” Ch a d

d v. Un ited Sta tes , 7 9 4 F.3 d 1 1 0 4, 1 1 1 4 (9 th Cir. 20 1 5 ) (B erzo n , J., c on cu rrin g ) (em p h asis ad d ed in C

h a d d ) (q u o tin g Ga u b ert , 49 9 U.S. at 3 2 3 ). I co n tin u e to b eliev e th at t h e h o ld in g o f Miller sh o u ld b e reco n s id ered en b an c, f o r th e reaso n s stated i n m

y Ch a d d co n cu rren ce. B ecau se Miller d o e s n o t, in m y v iew

, ap p ly to a h y

b rid po licy su ch as th e o n e h ere, th is case d o es n o t req u ire u s to co n sid er w

h eth er Miller sh o u ld b e rev isit ed

, as I su g g ested in Ch a d d

. T h at M i ller i s o f qu estio n ab le v alid ity d oes, h o w ev er, rein f o rce m y

co n clu sio n th at it sh o u ld n o t b e ex p an d ed to co v er h y

b rid

m an d ato ry

/d iscretio n ary

p o licies su ch as th e Gu id elin es h ere.G O N Z A L E Z V

. U N I T E D S T A T E S 40

ex c e ption for specified situations, as to which the p olicy
g ranted discretion and so trig g ered the discretionary function

ex c e ption.

B u t in Miller it was clear that th e e x ception was the applicable provision

— t here had been multiple f orest fires
g oing on in the same r eg ion on the same day

. Id. at 592. The majority ’s log ic h ere would amount to a stance that in Miller

, because there m ight have been another fire on the same day

, in which case the ex ception would apply

, the Governm ent could invoke the discretionary function ex ception even if there was no second fire, and no one thoug ht there was. That is, the Government co u l d 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.

Su ch a fantasy

- g rounded approach would severely

u n dermine a central purpose of the F TCA, namely

, the compensation of individuals who mig h t othe r w ise be left “destitute or g rievously harmed” by the improper impleme n t a tion of g overnment policy

. Rayonier I nc. v

. United States
, 352 U.S. 315, 3 20 ( 1 9 5 7 ). T here a re a g reat many policies that, like the one in Miller

, contain ex ceptions that, during emerg e ncies or other special circumstances, g rant

mo r e discretion to the g overnment employ ees than they otherwise e n

joy

. The Army ’s Snow Removal Policy h eld mandatory in Bolt v

. United States
, 509 F .3d 1028 (9th Cir. 2007), containe d a p rovision that it was “subject to chang e during emerg ency

situations.” Id. at 1033. The Department of Health and Human Services ’ reg ulations for laboratories that handle tox ins a n d dang e rous biolog ical a g ents allow waivers during “domestic or f o reig n public health
emerg enc[ ies] .” 42 C.F .R

. § 73.5(e). The discretionary function ex c e p t ion would swallow the F TCA if theseG O N Z A L E Z V

. U N I T E D S T A T E S 41

provisions — in the ab s e n c e even of an asserted emerg ency

— were held to mean t h a t t h e g overnment is n o t liable for
neg lig ence in its day -to-day c learing of snow, as in Bolt

, or in the licensing of laboratories, as in Berkovitz

.
Here, unlike in Miller

, the Government h a s not made any showing that the ex c e ptions apply ; that any g overnment employ ee t h o u g ht they d id; or even that any F B I employ ee considered whether they d id. G o n zalez maintains that the informatio n w a s just lost — an action that does not sug g e st that any F B I employ ee believed the Guidelines applied. The majority is therefore wrong to apply Miller ’s principle to this

case.

Citing G aubert

, the majority arg ues that because the Guidelines’ ex ceptions p ermit discretion ( w hich, as I have

ex p lained, I am assuming in this section is true, a lthoug h I do
not think it is), we must presume that the F B I ’ s actions “ were g rounded in policy considerations.” B ut apply ing that presumption here jumps the g un, as it assumes, with n o proof
at all, that the Government was acting pursuant to o ne of the

ex c e ptions, and not pursuant to the g enerally ap p l i cable mandatory

reporting requirement.

Moreover, even if the majority is correct th at the F B I is entitled to a presumption in its favor that i t was acting pursuant to discretion-g ranting ex ceptions to a mandatory

ru l e , that would not end the c a se. I n stead, Gonz alez should have an opportunity to rebut this presumption, w h ich would require d iscovery

. Her c omplaint asserts that the Government

was n ot acting to such an ex ception, b ut instea d s i m p l y lost the i n f o r m ation. W e h ave p reviously held that, in a ruling challeng ing subject matter jurisdiction under the F TCA, “the moving party should prevail o nly if the material jurisdictionalG O N Z A L E Z V

. U N I T E D S T A T E S 42

facts a re not in d i s pute a

nd the moving party is entitled to prevail as a matter of law.” A ugustine
, 704 F .2d at 1077; see also Y o ung v. United States
, 7 69 F .3d 1 047, 105 2

– 5 3 ( 9 th Cir. 2 0 14). As a result, “ t h e jurisdictional determination should await a determination o f the relevant facts.” Y ou ng , 769 F .3d at 1053 (quoting Augustine
, 704 F .2d at 1077). The

r e l e v ant facts include, at a minimum, whether the F BI actually invoked the e x cept i o n s to the Guidelines in some way , or whether it just lost t h e information, as Gonz alez alleg es. B e cause the F B I is, most likely

, the only entity with this informatio n, the district c o u rt should have g ranted Gonz a lez at least minimal jurisdictional discovery with
reg ard to these facts.

C

F inally

, even if the majority is otherwise correct, I would still reverse, as the F B I ’ s decisions under the relevant section of the Guidelines do not qualify as discretiona ry acts “g rounded in social, economic, and p olitical policy .” Y oung , 769 F .3d at 1053 (quoting B e rkovitz , 486 U.S. at 537).

O u r precedent has long recog niz ed that “matters o f scientific and professional judg ment

— p a rticularly judg ments c oncerning safety — are rarely con s i d e red to be susceptible to social, economic, or political policy

. ” W hisnan t v

. U

n ited States
, 400 F .3d 1177, 1182 (9th Cir. 20 0 5 )

. The majority states that the Guidelines’ considerations g overning r eporting serious, credible threats
to local law enforcement “ implicate social, econo m i c, a nd political judg ments,” but d oes n ot support this conclusion. I nstead, the majority repeatedly treats this case as if it asks us to r eview an F B I investigation
, concluding that Ag ent Andersen’s actions entailed “social, economic, and political”G O N Z A L E Z V

. U N I T E D S T A T E S 43

policy judg ments, rather than professiona l ones, because “[ t] he investig ation and prosecution of crime involves p olicy judg ments at the core of the ex ecutive branch.”

B u t, o n ce ag a in, the F B I ’s investig ation and prosecution responsibilities have nothing to do with this case. W e h a ve not been asked to determine whether A g ent Andersen, or any other F B I employ ee, was negl i g e nt in the investig ation o r prosecution of a crime. The issue before us is whether an F B I employ e e n eg lig ently failed to disclose information already in its hands to local law enforcement. The m a j o r i ty ’s

concerns reg arding deference to F B I enforcemen t p riorities are just not relevant.

* * *

The F TCA protects the p ublic by help i n g t o ensure the Government is attentive to its own p olicies, and by allowing compensation for those injured by the G overnment’s
neg lig ence, where enunciated policies a re n o t followed. I n

one sense, it is too late for Gina Gonz alez to benefit from the attentiveness the Government should have paid to t h r eats affecting h er and her family

, as her husband and child are lost
to her. B ut her claim f

or compensation should g o forward. I respectfully

dissent.