Console v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2025
• Docket: 23-3609
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JAMES CONSOLE; ELIZABETH K. No. 23-3609 CONSOLE, D.C. No. 3:23-cv-00652-DMS-JLB Plaintiffs - Appellants,

v. MEMORANDUM*

UNITED STATES OF AMERICA,

Defendant - Appellee.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding

Submitted June 6, 2025**

Before: SANCHEZ, H.A. THOMAS, and DESAI, Circuit Judges.

James and Elizabeth Console appeal the district court’s dismissal of their first

amended complaint (“FAC”) with prejudice for lack of subject matter jurisdiction.

We have jurisdiction under 28 U.S.C. § 1291. We affirm.

1. We review a district court’s dismissal for lack of subject matter

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction de novo. Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000). The

Federal Tort Claims Act (“FTCA”) provides a limited waiver of the United States’

sovereign immunity “for torts committed by federal employees acting within the

scope of their employment.” Id. But if a claim falls within an FTCA exception, then

the United States retains immunity, and the district court lacks subject matter

jurisdiction to hear the claim. Id.

The Consoles’ claims are barred under the FTCA’s discretionary function and

misrepresentation exceptions. See 28 U.S.C. § 2680(a), (h). Their claim that the

government failed to warn them of the scheme that defrauded them out of their

retirement accounts falls within the misrepresentation exception. See Lawrence v.

United States, 340 F.3d 952, 958 (9th Cir. 2003) (“The misrepresentation exception

shields government employees from tort liability for failure to communicate

information.”). And they concede that most of their claims regarding the

government’s investigation and prosecution of the scheme’s perpetrators fall within

the discretionary function exception. See Gonzalez v. United States, 814 F.3d 1022,

1028 (9th Cir. 2016) (explaining that investigation and prosecution decisions are

“generally committed to [the government’s] absolute discretion” (quoting Heckler

v. Chaney, 470 U.S. 821, 831 (1985))).

The Consoles nonetheless contend that the discretionary function exception

does not apply to their claim that the government acted negligently by preventing

2 23-3609 them from participating in the perpetrators’ criminal proceedings. They argue that,

because they were victims of the fraudulent scheme, victims’ rights statutes and the

Due Process Clause removed the United States’ discretion to exclude them from the

proceedings. See 18 U.S.C. § 3663A(a)(1) (mandating restitution for victims of

certain crimes); id. § 3771(a) (prescribing certain rights to crime victims, including

the right to be heard at sentencing hearings); Gonzalez, 814 F.3d at 1027 (noting that

a decision is not discretionary when federal law prescribes a specific course of

action).

But the Due Process Clause does not require the government to allow crime

victims to participate in criminal proceedings. Dix v. County of Shasta, 963 F.2d

1296, 1298–99 (9th Cir. 1992), abrogated on other grounds by, Sandin v. Conner,

515 U.S. 472 (1995). Regardless, to trigger the rights under the relevant statutes, the

Consoles must have been victims of the charged offenses. See United States v.

Gamma Tech Indus., Inc., 265 F.3d 917, 927 n.10 (9th Cir. 2001) (holding that

mandatory restitution is limited to “those losses caused by the actual offense of

conviction”); 18 U.S.C. § 3771(e)(2)(A) (defining a “crime victim” as a person

harmed by the commission of a federal offense). Because the government entered

indictments and plea deals with reduced charges, and the Consoles were not victims

of the crimes charged, there was no statutory requirement that the United States

allow the Consoles’ participation in the criminal proceedings. Thus, the United

3 23-3609 States retained discretion over the Consoles’ participation in the criminal

proceedings, and the discretionary function exception applies.1

2. “We review for abuse of discretion a district court’s dismissal with

prejudice and without leave to amend.” Benavidez v. County of San Diego, 993 F.3d

1134, 1141–42 (9th Cir. 2021). The FAC failed to correct the deficiencies in the

original complaint, and the Consoles do not specify how they would correct the

deficiencies if granted leave to amend. See Cervantes v. Countrywide Home Loans,

Inc., 656 F.3d 1034, 1041, 1046–47 (9th Cir. 2011). Because dismissal without leave

to amend is proper where “amendment would be futile,” the district court did not

abuse its discretion by dismissing the FAC with prejudice. Id. at 1041.

AFFIRMED.

1 To the extent that the Consoles assert an independent due process claim, the district court lacked subject matter jurisdiction to hear it. See Jachetta v. United States, 653 F.3d 898, 904 (9th Cir. 2011); Munns v. Kerry, 782 F.3d 402, 413–14 (9th Cir. 2015).

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