Lillian J. Cuadrado-Concepcion v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 16, 2021
• Docket: 20-13747
• Status: Unpublished

Opinion

USCA11 Case: 20-13747 Date Filed: 04/16/2021 Page: 1 of 14

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13747 Non-Argument Calendar ________________________

D.C. Docket No. 4:19-cv-00305-WTM-CLR

LILLIAN J. CUADRADO-CONCEPCION,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Georgia ________________________

(April 16, 2021)

Before ROSENBAUM, JILL PRYOR, and LUCK, Circuit Judges.

PER CURIAM: USCA11 Case: 20-13747 Date Filed: 04/16/2021 Page: 2 of 14

Lillian Cuadrado-Concepcion (“Cuadrado”) appeals the dismissal of her

complaint for lack of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Her

complaint alleged negligence claims against the United States under the Federal Tort

Claims Act (“FTCA”), based on the failure to protect her from her husband, a U.S.

Army servicemember, when he returned a “changed man” from a tour in Iraq. The

government moved to dismiss the complaint based on the discretionary-function and

intentional-tort exceptions to the FTCA’s waiver of sovereign immunity, and the

district court granted that motion. On appeal, Cuadrado argues that these exceptions

do not apply here because she alleged the existence of a “special relationship”

between her and the Army and that the district court improperly shifted the burden

to her to prove that the exceptions did not apply. After careful review, we affirm the

dismissal of Cuadrado’s complaint.

I.

We take the following facts from Cuadrado’s complaint, accepting them as

true for purposes of this appeal. In April 2009, Cuadrado married Juan A. Guzmán,

Jr., an enlisted member in the U.S. Army. Later that year, Guzmán was deployed to

Iraq. He returned the next year a “changed man.” Before, Guzmán had been a

“gentleman,” respectful and romantic. Upon his return, Guzmán was disrespectful,

aggressive, and violent.

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On January 5, 2011, Cuadrado notified her husband’s Army superior, Captain

Humphrey, that she was concerned about her husband’s behavior and her own safety.

The Army referred them to marriage counseling and had Guzmán receive psychiatric

evaluation and treatment.

The counseling sessions did nothing to improve matters. During a session on

February 11, 2011, Guzmán abruptly left when Cuadrado raised concerns about his

alcohol abuse, anger, and emotional instability. After Guzmán left, Cuadrado told

the counselor that she feared her husband’s reaction when she returned home, and

that he often looked at her as “the enemy.” In other counseling sessions, her husband

“displayed unexplained anger.” And at home, he threatened to kill her if she kept

disclosing details about their home life.

On April 13, 2011, Cuadrado called the police on her husband, who appeared

to be having a bad reaction to his medications. The police took her husband to a

hospital, but an Army officer, First Lieutenant Burch, intervened and took him back

to the base. A few days later, Cuadrado again called the police on her husband after

he raised his fist and threatened to punch her. He was arrested for simple assault.

After her husband’s arrest, Burch appeared at Cuadrado’s home and insisted

that she bail out her husband and drop the charges. Burch assured her that the Army

would take care of Guzmán, that he would not return to the home until he was stable,

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and that she should not be afraid. No military protection order was issued at that

time, however, nor were other safety measures taken.

On June 10, 2011, Cuadrado was raped by Guzmán. Soon after, she notified

the Army marriage counselor, who took no action.

Guzmán’s aggressive and threatening conduct continued unabated. On

August 29, 2011, after Guzmán had threatened her, Cuadrado contacted an Army

victim advocate, who helped her to refer her husband’s threats to the commander

and to request a military protection order, which issued on August 30, 2011.

Guzmán then violated the military protection order multiple times, despite

assurances from the Army that it would take care of the situation. Scared and

frustrated with the Army’s failure to protect her, Cuadrado also obtained a family-

violence protection order from a civil court on September 27, 2011. Guzmán

violated both protection orders on October 21, 2011, when an Army chaplain

contacted her on her husband’s behalf. Guzmán was arrested, and he was eventually

convicted of disorderly conduct. Cuadrado later separated from Guzmán and

divorced him.

II.

Cuadrado filed this lawsuit under the FTCA, alleging that the United States

was liable for the Army’s failure to act on her complaints of verbal and physical

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abuse and to protect her from her husband. 1 She claimed that, as a result of the

Army’s acts and omissions, she had suffered physical injuries and severe emotional

distress, including post-traumatic stress disorder, major depressive disorder, battered

spouse syndrome, and a voice disorder.

The government moved to dismiss Cuadrado’s complaint for lack of subject-

matter jurisdiction under the FTCA’s discretionary-function and intentional-tort

exceptions. Cuadrado responded that these exceptions did not apply, relying on the

“Georgia doctrine of special relationship.”

The district court granted the government’s motion to dismiss. The court

explained that Cuadrado’s claims were all based on the same conduct: “the Army’s

negligent handling of her complaints regarding [Guzmán’s] conduct and threats

against Plaintiff, the failure to act promptly to the complaints made by Plaintiff, and

the failure to supervise [Guzmán].”

Applying the two-part test for the discretionary-function exception, the

district court first found that Cuadrado had failed to show that the challenged conduct

was a result of a failure to comply with a statute, regulation, or policy. So, the court

found that the challenged conduct involved the exercise of discretion or judgment.

Turning to the second part of the test, the court concluded that such judgment was

1 In Count 4 of the complaint, Cuadrado also alleged that an Army chaplain violated the protection orders by contacting her on her husband’s behalf. But Cuadrado states that she “agree[s] with the [d]istrict [c]ourt as to the dismissal of Count 4,” so we do not address this claim further. 5 USCA11 Case: 20-13747 Date Filed: 04/16/2021 Page: 6 of 14

of the kind that the exception was designed to shield. The court elaborated that “[t]he

decision of whether, and how, to protect a victim necessarily involves numerous

policy considerations including resources, the seriousness of the allegations, and the

soldier’s privacy and rights, among others.” So too did the determination of

“whether, and how, to supervise or monitor a soldier returning from deployment and

how to handle a reported domestic violence situation.”

As for Cuadrado’s reliance on the “special relationship” doctrine, the district

court found that it did not alter the analysis because there was no promise of “specific

action that depart[ed] from later discretionary decisions.” Rather, in the court’s

view, the Army made general promises to protect her and to monitor Guzmán, so its

discharge of any special duty still involved judgments grounded in public policy.

Additionally, the district court concluded that Cuadrado’s claims were

independently barred by the intentional-tort exception. The court found that her

claims arose out of an assault or battery by Guzmán and were related to her

husband’s employment relationship with the Army, despite Cuadrado’s claim of a

special duty unrelated to Guzmán’s employment status. Cuadrado now appeals.

III.

“In reviewing the district court’s dismissal of [Cuadrado’s] complaint, we

accept the allegations in the complaint as true, and we review de novo the district

court’s application of the discretionary-function exception to the FTCA’s waiver of

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sovereign immunity.” Foster Logging, Inc. v. United States, 973 F.3d 1152, 1156–

57 (11th Cir. 2020). We likewise review de novo the application of the intentional-

tort exception to the FTCA. Alvarez v. United States, 862 F.3d 1297, 1301 (11th

Cir. 2017).

As a sovereign entity, the United States is immune from suit unless it consents

to be sued. Zelaya v. United States, 781 F.3d 1315, 1321 (11th Cir. 2015). In

general, through the FTCA, Congress has waived “sovereign immunity from suit in

federal courts for its employees’ negligence.” Foster Logging, 973 F.3d at 1157;

see 28 U.S.C. § 1346(b)(1).

“Congress, however, has carved out certain exceptions to that limited waiver,

including the discretionary-function exception in 28 U.S.C. § 2680(a).” Foster

Logging, 973 F.3d at 1157. Section 2680(a) provides that the government retains its

sovereign immunity as to “[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.” 28 U.S.C. § 2680(a). The exception is designed “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.”

United States v. Gaubert, 499 U.S. 315, 323 (1991) (quotation marks omitted).

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We apply a two-part test to determine whether challenged conduct falls within

the discretionary-function exception. Douglas v. United States, 814 F.3d 1268, 1273

(11th Cir. 2016). First, we consider the nature of the conduct at issue and determine

whether it is a matter of judgment or choice for the acting employee. Swafford v.

United States, 839 F.3d 1365, 1370 (11th Cir. 2016). “Challenged conduct is not

discretionary when a federal statute, regulation, or policy specifically prescribes a

course of action for an employee to follow because the employee has no rightful

option but to adhere to the directive.” Id. (quotation marks omitted).

Second, “[i]f the conduct involves an element of judgment and is

discretionary, the court must determine whether that judgment is of the kind that the

discretionary function exception was designed to shield.” Id. (quotation marks

omitted). Because the discretionary-function exception “is designed to prevent

judicial second guessing of decisions grounded in social, economic, and political

policy,” it “protects only governmental actions and decisions based on

considerations of public policy.” Id. (quotation marks omitted). In other words,

“[t]he discretionary function exception applies only to conduct that involves the

permissible exercise of policy judgment.” Id. (emphasis in Swafford) (quotation

marks omitted). However, “[t]his inquiry is not concerned with the subjective intent

of the government employee or whether he or she actually weighed social, economic,

and political policy considerations before acting.” Foster Logging, 973 F.3d at 1158.

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Here, both parts of the discretionary-function test are met. Cuadrado does not

identify a statute, regulation, or policy that “specifically prescribes a course of action

for an employee to follow,” so the district court correctly found that the challenged

conduct involved an element of judgment or choice. See Swafford, 839 F.3d at 1370.

Moreover, Cuadrado does not meaningfully dispute the court’s analysis that the

challenged conduct involved judgments grounded in considerations of public policy.

See id. The court observed, and our precedent requires us to agree, that the decision

of whether, and how, to protect a victim of domestic violence by a servicemember

“necessarily involves numerous policy considerations including resources, the

seriousness of the allegations, and the soldier’s privacy and rights, among others.”

See Ochran v. United States, 117 F.3d 495, 501 (11th Cir. 1997) (holding that the

decision as to “how to protect a victim that has been threatened by a suspected

offender is susceptible to policy analysis”); Cohen v. United States, 151 F.3d 1338,

1342 (11th Cir. 1998) (“[E]ven if [18 U.S.C.] § 4042 imposes on the BOP a general

duty of care to safeguard prisoners, the BOP retains sufficient discretion in the means

it may use to fulfill that duty to trigger the discretionary function exception.”). Thus,

we conclude that the challenged conduct involved an element of judgment “of the

kind that the discretionary function exception was designed to shield.” Swafford,

839 F.3d at 1370.

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In response, Cuadrado maintains that this analysis is irrelevant because, in her

view, the discretionary-function exception simply does not apply here. According

to Cuadrado, the discretionary-function exception is not applicable because her

claim arose from a “special duty” that developed between her and the Army under

Georgia law, thereby inducing her reliance on the Army for protection.

But binding precedent forecloses Cuadrado’s argument. In Ochran, we

rejected the argument that “the discretionary function exception does not bar a cause

of action alleging negligent failure to protect because [a government employee]

voluntarily assumed the duty to protect [the plaintiff], thereby inducing [the

plaintiff’s] reliance.” 117 F.3d at 505. We explained that two requirements must be

satisfied for the district court to have jurisdiction: “(1) there must be a state-law duty

and (2) the discretionary function exception must not apply.” Id. “[T]he special

relationship theory of liability only serves to create a state-law duty to the plaintiff.”

Id. But “if the discharge of this state-law duty involves judgments grounded in

considerations of public policy, the discretionary function exception bars suit against

the United States.” Id.

Here, even assuming Cuadrado established the existence of a special

relationship between her and the Army under Georgia law, that “only serves to create

a state-law duty to the plaintiff.” Id. But that alone is not enough because, according

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to Ochran, the discretionary-function exception still applies “if the discharge of this

state-law duty involves judgments grounded in considerations of public policy.” Id.

Nor do the complaint’s allegations plausibly show the voluntary assumption

of a specific duty that involved no policy judgments. See id. at 506 n.7. In Ochran,

we noted that, while there may have been a special relationship in that case, there

was no “promise to perform specific actions on [the plaintiff’s] behalf.” Id. But we

observed that if a government employee had “voluntarily assumed a specific duty

that involved no policy judgments” and then negligently failed to follow through,

such negligence might be “actionable under the FTCA.” Id. Here, though, no

government employee “voluntarily assum[ed] a specific duty that involved no policy

judgments.” Id. Rather, we agree with the district court that the only duties

voluntarily assumed—to take care of her husband, to ensure he would not go back

to the home until stable, and to protect her—were general in nature and still involved

judgments grounded in considerations of public policy. See id.

Finally, Cuadrado argues that the district court erred by requiring her to prove

that the discretionary-function exception did not apply. She maintains that this

exception is a defense on the merits, not a matter of subject-matter jurisdiction, so

the government should bear the burden of proving that it applies.

Again, though, Cuadrado argues against binding precedent. First, we have

consistently treated the discretionary-function exception to the FTCA’s waiver of

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sovereign immunity as a matter affecting the district court’s subject-matter

jurisdiction. See Foster Logging, 973 F.3d at 1167 (“Because the discretionary-

function exception applies here, the United States has not unequivocally waived its

sovereign immunity, and the district court therefore lacked jurisdiction over

Plaintiffs’ FTCA claims against Defendant United States.”); Swafford, 839 F.3d at

1369 (“If the [discretionary-function] exception were to apply to Swafford’s claims,

we would lack jurisdiction over this action.”); Zelaya, 781 F.3d at 1322 (11th Cir.

2015) (“[W]hen an exception applies to neutralize what would otherwise be a waiver

of immunity, a court will lack subject matter jurisdiction over the action.”).

Although Cuadrado suggests that our precedent is wrong, she does not identify any

Supreme Court decision that “actually abrogate[s] or directly conflict[s] with, as

opposed to merely weaken[s],” this precedent. United States v. Kaley, 579 F.3d

1246, 1255 (11th Cir. 2009). The Supreme Court’s decision in United States v. Kwai

Fun Wong, 575 U.S. 402 (2015), does not meet that standard because it involved the

FTCA’s procedural time limitations, not substantive provisions limiting the scope of

the government’s sovereign immunity. See id. at 407–12 (noting that “most time

bars are nonjurisdictional”).

Second, and relatedly, we have generally placed the burden on the plaintiff to

“prove that the discretionary function exception does not apply” when the

government asserts a lack of subject-matter jurisdiction. OSI, Inc. v. United States,

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285 F.3d 947, 951 (11th Cir. 2002) (“[S]ince the government has asserted lack of

subject matter jurisdiction, OSI must prove that the discretionary function exception

does not apply to the disposal of the landfill material.”); see also Foster Logging,

973 F.3d at 1159 (“To survive dismissal, Plaintiffs were required to allege a

plausible claim that falls outside the discretionary function exception.” (quotation

marks omitted)); Douglas, 814 F.3d at 1276 (“At the pleading stage, Mr. Douglas

must allege a plausible claim that falls outside the discretionary function

exception.”). In any case, “[t]he allocation of burdens is not significant when the

relevant facts are undisputed,” which is the case here. Hughes v. United States, 110

F.3d 765, 768 n.1 (11th Cir. 1997) (declining to resolve whether “the plaintiff bears

the burden of showing that the government’s conduct is not protected by the

discretionary function exception”).

For these reasons, Cuadrado has failed to show that the district court erred in

granting the government’s motion to dismiss for lack of jurisdiction based on the

discretionary-function exception.

IV.

In sum, we affirm the district court’s dismissal of Cuadrado’s complaint for

lack of subject-matter jurisdiction based on the discretionary-function exception to

the FTCA’s waiver of sovereign immunity. We therefore need not and do not

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resolve whether her claims would also be barred by the FTCA’s intentional-tort

exception.

AFFIRMED.