FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 10, 2020 _________________________________ Christopher M. Wolpert Clerk of Court MOHAMMAD ABED AWAD,
Plaintiff - Appellant,
v. No. 18-2159 (D.C. No. 1:15-CV-00373-MV-CG) UNITED STATES OF AMERICA, (D. N.M.)
Defendant - Appellee. _________________________________
ORDER AND JUDGMENT* _________________________________
Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges. _________________________________
Mohammad Abed Awad appeals from the dismissal of his claims for
negligence, false arrest, and false imprisonment brought under the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1) and 2671-2680. We affirm.
I
On February 20, 2012, an undercover officer with the Albuquerque Police
Department (APD) purchased a controlled substance from an individual working at a
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. smoke shop owned by Awad. The transaction was recorded on video, and according
to the APD officer’s report, the seller “appeared to be Mohammed Awad.” Aplt.
App. at 44. Two years later, in March 2014, two federal agents with the Drug
Enforcement Administration (DEA) reviewed the video, identified Awad as the
seller, and applied for search warrants.1 On March 20, 2014, after obtaining a
warrant, DEA agents executed a search warrant for Awad’s residence and arrested
him without a warrant. A grand jury later indicted him on a single count of
distributing a controlled substance analogue, and he was incarcerated from the date
of his arrest, March 20, 2014, until September 9, 2014, when the government
dismissed the charge because the seller in the video was actually Awad’s brother,
Belal Awad. On September 17, 2014, Belal (who resembles Awad) was indicted for
distribution of a controlled substance analogue based largely upon the video. The
supporting affidavit in that case identified Belal, not Awad, as the person in the
video.2 See Aplt. App. at 34-35 (Special Agent S. H. Aff.); id. at 208 (Dist. Ct. Order
at 3); see also Aplee. Br. at 3-4 (acknowledging the transaction involved Belal, not
Awad).
1 According to the supporting affidavit, the APD undercover officer believed Awad was the individual with whom he made contact in the store; after reviewing the video, the two DEA agents did as well. 2 The supporting affidavit in Belal’s case indicates his uncle identified Belal as the salesman of the transaction from still photos of the video. See Aplt. App. at 35. The district court ultimately dismissed Belal’s case without prejudice. See United States v. Belal Awad, No. 14-CR-3611-MCA (D. N.M. Feb. 17, 2015). 2 Based on these facts, Awad brought this FTCA action against the United
States, asserting negligence, false arrest, and false imprisonment. The premise for all
three claims was his allegation that the DEA agents incorrectly identified him as the
seller in the video. As he would have it, the agents violated DEA policies by
executing a warrantless arrest without probable cause.
The government sought dismissal under Fed. R. Civ. P. 12(b)(1), or,
alternatively, summary judgment under Fed. R. Civ. P. 56. It contended the district
court lacked subject matter jurisdiction because all three claims fell under the
discretionary function exception to the FTCA’s waiver of sovereign immunity. It
also argued that the false arrest and false imprisonment claims did not fall under the
FTCA’s separate waiver for enumerated intentional torts committed by law
enforcement officers. According to the government, the false arrest and false
imprisonment claims were based on the DEA agents’ misidentification of Awad as
the seller, which alleged negligence, but not intentionally tortious conduct.
A report and recommendation from a magistrate judge recommended
dismissing all three claims under the discretionary function exception. The district
judge decided the discretionary function exception barred Awad’s negligence claim
and the false arrest and false imprisonment claims did not fall under the waiver of
sovereign immunity for intentional torts committed by law enforcement officers. The
latter because Awad did not allege the DEA agents intentionally misidentified him or
arrested and incarcerated him in spite of knowing he was not the seller. Looking to
the facts alleged rather than the “intentional” labels Awad assigned to the motives
3 and acts of the agents, the district judge concluded these allegations amounted to
negligence or recklessness at most, and therefore, the government was entitled to
summary judgment. Awad appealed.
II
A. Standard of Review
A district court must convert a motion to dismiss under Fed. R. Civ. P.
12(b)(1) to a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or a motion for
summary judgment under Fed. R. Civ. P. 56 “if the jurisdictional question is
intertwined with the merits of the plaintiff’s case.” Bell v. United States, 127 F.3d
1226, 1228 (10th Cir. 1997) (brackets and internal quotation marks omitted).
“Whether the discretionary-function exception applies is such a question.” Franklin
Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir. 1999). The judge
correctly treated the government’s dispositive motion as a motion for summary
judgment under Rule 56. See Garcia v. U.S. Air Force, 533 F.3d 1170, 1174, 1175
(10th Cir. 2008). We review the judge’s “determination of the applicability of the
discretionary function exception de novo, considering the allegations in the
complaint as well as the evidence in the record.” Id. Summary judgment is
appropriate if “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
B. Discretionary Function Exception
“[T]he FTCA waives sovereign immunity for certain state law tort claims
against the United States.” Garling v. U.S. Envtl. Prot. Agency, 849 F.3d 1289, 1294
4 (10th Cir. 2017). However, several types of claims are excepted from the waiver of
sovereign immunity, including claims involving discretionary functions. See
28 U.S.C. § 2680(a). Under the discretionary function exception, the United States
retains sovereign immunity for:
[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
Id.; see also Garling, 849 F.3d at 1295. The discretionary function “exception marks
the boundary between Congress’ willingness to impose tort liability upon the United
States and its desire to protect certain governmental activities from exposure to suit
by private individuals.” Elder v. United States, 312 F.3d 1172, 1176 (10th Cir. 2002)
(internal quotation marks omitted). “Because the exception applies whether or not
the discretion involved was abused, it is irrelevant whether the government
employees were negligent.” Id. (brackets and internal question marks omitted).
“To determine whether the discretionary function exception applies to the
challenged conduct, this circuit employs the two-pronged test of Berkovitz v. United
States, 486 U.S. 531, 536 (1988).” Id. We first ask whether the conduct is
discretionary, that is, whether “it involves an element of judgment or choice.”
Berkovitz, 486 U.S. at 536. “[T]he discretionary function exception will not apply
when a federal statute, regulation, or policy specifically prescribes a course of action
for an employee to follow.” Id. “Second, if the conduct was discretionary, we
consider whether it required the exercise of judgment ‘based on considerations of
5 public policy.’” Garling, 849 F.3d at 1295 (quoting Berkovitz, 486 U.S. at 537); see
Elder, 312 F.3d at 1181 (“Only decisions susceptible to policy analysis are protected
by the exception.” (internal quotation marks omitted)). This element furthers the
goal of the exception, which is “to prevent judicial second guessing of legislative and
administrative decisions grounded in social, economic, and political policy through
the medium of an action in tort.” Elder, 312 F.3d at 1176 (internal quotation marks
omitted). If both prongs of the Berkovitz test are satisfied, the discretionary function
exception applies, the court lacks jurisdiction, and the claim is barred.
C. Intentional Torts & the Law Enforcement Proviso
There is another exception to the FTCA’s sovereign immunity waiver for
certain intentional torts, including false arrest and false imprisonment. See 28 U.S.C.
§ 2680(h).3 But, as sometimes happens, there is an exception to the exception:
Congress included a proviso waiving sovereign immunity for six enumerated
intentional torts “when they arise from the ‘acts or omissions’ of federal ‘law
enforcement officers.’” Garling, 849 F.3d at 1295 (quoting § 2680(h)). “Known as
the ‘law enforcement proviso,’” Millbrook v. United States, 569 U.S. 50, 52 (2013),
§ 2680(h) states: “Provided[] [t]hat, with regard to acts or omissions of investigative
or law enforcement officers of the United States Government, the provisions of this
chapter and section 1346(b) of this title shall apply to any claim arising . . . out of
3 28 U.S.C. § 2680(h) excludes from the sovereign immunity waiver “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights[.]” 6 assault, battery, false imprisonment, false arrest, abuse of process, or malicious
prosecution,” § 2680(h) (italics omitted). The law enforcement proviso “carved out
an exception to § 2680(h)’s preservation of the United States’ sovereign immunity
for intentional torts . . . that arise out of the wrongful conduct of law enforcement
officers.” Millbrook, 569 U.S. at 52.
III
Awad asserts claims for negligence, false arrest, and false imprisonment. We
first evaluate his negligence claim and then his intentional tort claims.
A. Negligence
Awad alleged the DEA agents were negligent in misidentifying him as the
seller in the video. He averred the arresting DEA agent simply reviewed the 2-year-
old video and identified him as the seller, even though the Albuquerque police officer
indicated in his report that the seller only “appeared to be Mohammed Awad.” Aplt.
App. at 13, para. 28. He further alleged the agents knew the smoke shop was
operated by family members who resembled one another, yet the agents made the
identification without having any prior encounters to positively identify him. Based
on these general allegations, Awad claimed the government was liable for the agents’
negligence because they “negligently and falsely identified [him] as an individual
who had distributed a controlled substance . . . .” Id. at 21, para. 85. He further
alleged they “negligently arrested [him] falsely,” id., para. 86, “and thereafter
negligently incarcerated [him] continuously for 173 consecutive days,” id. at 22,
para. 87.
7 This claim satisfies the first prong of the Berkovitz test because the manner in
which law enforcement agents conduct their investigation and identify suspects
involves elements of judgment or choice. See Garling, 849 F.3d at 1296 (holding
that investigation by Environmental Protection Agency was discretionary); see also
Mesa v. United States, 123 F.3d 1435, 1438 (11th Cir. 1997) (“We readily conclude
that the decisions regarding how to locate and identify the subject of an arrest
warrant and regarding whether the person apprehended is in fact the person named in
the warrant are discretionary in nature and involve an element of judgment or
choice.”). Indeed, the record contains undisputed evidence that the investigation and
identification of suspects is within the discretion of DEA case agents and their
supervisors. Aplt. App. at 73-74, para. 12 (Williams Decl., DEA Chief of
Operations). Agents have discretion to choose which “inquiries to undertake—and
the inquiries that are sufficient—to identify a suspect.” Id. at 74, para. 14. They also
“must consider the unique facts of each case, balance competing investigative
priorities, and apply their professional knowledge and experience to identify suspects
from their investigative activities.” Id.
Awad disputes this conclusion, citing three specific DEA policies requiring
probable cause to effect an arrest or file a criminal complaint, but these policies are
inapposite.4 Of course, probable cause is a constitutional requirement of any arrest,
but Awad cites nothing that requires DEA agents to follow a “prescribe[d] course of
4 Awad relies on the DEA Agents Manual §§ 6641.12, 6641.13, and 6641.15. See Aplt. App. at 37, 79. 8 action” in gathering probable cause and identifying a suspect, Berkovitz, 486 U.S. at
536. Indeed, deciding whether probable cause has been established involves
discretion and judgment; the requirement for probable cause to exist does not make
the ultimate, evaluative decision non-discretionary. Cf. Taitt v. United States,
770 F.2d 890, 893 (10th Cir. 1985) (recognizing that statutory requirement for entry
into the witness protection program is a discretionary determination). Even if they
were mistaken, the DEA agents made a discretionary determination that probable
cause to arrest Awad existed. Awad’s insistence that their initial evaluation was
wrong does not inform this debate; it is irrelevant to our analysis. See Duke v. Dep’t
of Agric., 131 F.3d 1407, 1410 (10th Cir. 1997) (“[I]n applying the discretionary
function exception we do not consider whether the decision or nondecision was
negligent or wrong.”).
This claim also satisfies the second prong of the Berkovitz test. The record
indicates the decision whether to investigate, as well as decisions concerning the
nature and extent of an investigation, are subject to economic, political, and social
policy considerations. Aplt. App. at 74, para. 15 (Williams Decl.). Among other
things, DEA agents must account for social policy considerations such as whether
and what type of weapons to use, the types of investigative techniques that may be
appropriate, the surveillance methods that would be most effective, and how to best
and most safely execute warrants. Id. They must economically balance their limited
resources among competing investigations and sometimes, as was the case here,
conduct joint investigations with other law enforcement agencies. See id. at 74-75,
9 para. 16. These collaborative investigation arrangements, moreover, manifest
political policy considerations, particularly to ensure comity with other federal, state,
and local law enforcement agencies. See id. at 75, para. 17. Indeed, other courts
have recognized that these investigative decisions, which include the process of
verifying a suspect’s identity, “‘are rooted in policy considerations.’” Milligan v.
United States, 670 F.3d 686, 694 (6th Cir. 2012) (quoting Mesa, 123 F.3d at 1439).
Awad’s negligence claim is barred by the discretionary function exception.
B. Intentional Torts—False Arrest & False Imprisonment
“[A] plaintiff may not ‘recast a negligence tort as an intentional tort to take
advantage of the law enforcement exception to § 2680(h).’” Garling, 849 F.3d at
1298 (quoting Milligan, 670 F.3d at 696). “In determining whether [a plaintiff’s]
claims fall within the law enforcement proviso, we look to the substance of their
claims and not how they labeled them in their complaint.” Id. If a “complaint
attempts to bring intentional tort claims without alleging intentional tort facts,” the
law enforcement proviso will not apply. Id.
Awad’s amended complaint is devoid of any facts suggesting intentionally
tortious conduct. His false arrest claim avers he was arrested “based on the false
identification of [him] as the individual who had distributed a controlled substance.”
Aplt. App. at 22-23, para. 94. Similarly, his false imprisonment claim alleges he was
incarcerated “for 173 consecutive days . . . based on [the] false identification.” Id. at
23, para. 101. Both claims are predicated on the DEA agents’ misidentification of
him as the seller in the video. But there are no allegations the DEA agents
10 intentionally misidentified him. Nor are there any allegations they arrested or
incarcerated him knowing he was not the seller. Although Awad summarily alleges
the government confined him “knowing it had no lawful authority to do so,” id. at 24,
para. 104, the only factual support for this allegation is the misidentification. As
with the negligence claim, the amended complaint merely suggests (without the
benefit of specific factual allegations) the arrest and incarceration were the product of
unintentional, albeit wrongful, conduct during the investigation; it alleges the
government had a duty of care to identify the correct suspect and not arrest and
incarcerate Awad based on a mistaken (which he conveniently labels as “false”)
identification. These allegations predicate liability on negligence or, at most,
recklessness, but not intentional conduct. See Garling, 849 F.3d at 1298. The law
enforcement proviso does not apply to these false arrest and false imprisonment
claims.
Moreover, the discretionary function exception bars these claims because they
are based solely on the DEA agents’ alleged negligence in conducting their
investigation and identifying Awad as the seller. We have already discussed the
discretionary nature of that process and the policy considerations attending it.
Awad’s attempt to recast his negligence allegations in intentional-tort terms is
unavailing. Consequently, the district court lacked jurisdiction over the false arrest
and false imprisonment claims.5
5 Awad’s failure to allege intentionally tortious conduct obviates any need to consider the interaction between § 2680(a) and § 2680(h). See Garling, 849 F.3d at 11 IV
Awad’s negligence claim is barred by the discretionary function exception to
the FTCA’s waiver of sovereign immunity. Although Awad also asserts nominal
claims for false arrest and false imprisonment, the substance of his allegations do not
reflect intentionally tortious conduct and, as a consequence, they do not fall within
the law enforcement proviso and are barred by the discretionary function exception.
For want of jurisdiction, the district court properly dismissed the suit.
The district court’s judgment is affirmed.
Entered for the Court
Terrence L. O’Brien Circuit Judge
1298 n.5 (recognizing circuit split regarding whether intentional tort claims brought under § 2680(h) must also avoid the discretionary function exception of § 2680(a) but declining to consider the issue because the plaintiff failed to allege intentional tort facts); see also id. at 1298 (holding that claims nominally labeled as intentional torts, including “false arrest” and “false imprisonment,” stemmed from allegedly negligent or reckless investigation and raid and, therefore, were barred by the discretionary function exception). 12