Short v. United States of America

Filing 21

ORDER granting 13 Motion to Dismiss. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MICHAEL SHORT,
Plaintiff

CIVIL ACTION

VERSUS

No. 12-2914

UNITED STATES OF AMERICA
Defendant

SECTION “E”

ORDER & REASONS
The Court has pending before it a motion to dismiss filed by Defendant the United
States.1 The Court has reviewed the motion, the response, reply, and surreply,2 and now
issues this Order and Reasons granting the motion to dismiss.
BACKGROUND
In 1997, Plaintiff Michael Short was convicted on numerous drug conspiracy charges
and sentenced by Judge Thomas Porteous to a term of life imprisonment plus five years.3
According to Short, Judge Porteous had a corrupt relationship with Louis Marcotte, a bail
bondsman who once threatened Short.4 Therefore, Judge Porteous had a conflict of interest
which allegedly biased him against Short in various ways before, during, and after trial.5
Short now brings this suit under the Federal Tort Claims Act, contending that the FBI

1

R. Doc. 13.

2

R. Docs. 14, 17, 20.

3

R. Doc. 1; see also United States v. Short, No. 2:96-cr-232 (filed Aug. 12, 1996).

4

R. Doc. 1 at 4-5.

5

See id. at 7-10.
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negligently investigated Judge Porteous in connection with his nomination to the Eastern
District of Louisiana, and that had the FBI not failed in that investigation, it would have
discovered the corruption, Judge Porteous would not have become a federal judge, and
Short would not have been convicted. He seeks $15,000,000.00 in damages.6
The United States moves to dismiss because (1) the alleged negligent investigation
falls within the FTCA's discretionary exception and thus sovereign immunity has not been
waived as to this claim, (2) nothing done by the FBI was the proximate cause of Defendant's
conviction, and (3) Louisiana law does not create liability for the United States under these
circumstances. Having considered the briefs, the record, and the applicable law, the Court
now issues this Order and Reasons dismissing the case without prejudice for lack of subject
matter jurisdiction.
STANDARD
A motion to dismiss filed pursuant to Rule 12(b)(1) “allow[s] a party to challenge the
subject matter jurisdiction of the district court to hear a case.” Ramming v. United States,
281 F.3d 158, 161 (5th Cir. 2001). The party asserting jurisdiction carries the burden of
proof. Id. The district court may base its determination as to its subject-matter jurisdiction
on: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.” Id. “A court’s dismissal of a case for lack of subjectmatter jurisdiction is not a decision on the merits, and the dismissal does not necessarily
prevent the plaintiff from pursuing the claim in another forum.” Advocacy Ctr. for the

6

Id. at 10.
2

Elderly & Disabled v. La. Dep’t of Health & Hosp., 731 F. Supp. 2d 583, 588 (E.D. La. 2010)
(citing Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977)).
ANALYSIS
The United States and its agencies are immune to suit except to the extent that
sovereign immunity has been waived. E.g., La. Dep't of Environmental Quality v. EPA, 730
F.3d 446, 448 (5th Cir. 2013). Thus, this Court is without jurisdiction unless there is some
specific waiver of immunity to the claim Short attempts to assert against the United States.
See id. It is Short's burden to demonstrate that this Court has jurisdiction. See Ramming,
281 F.3d at 161.
The FTCA waives sovereign immunity to claims "for personal injury or death caused
by the negligence of a government employee under circumstances in which a private person
would be liable under the law of the state in which the negligent act or omission occurred."
Hannah v. United States, 523 F.3d 597, 601 (5th Cir. 2008) (citing 28 U.S.C. §§ 1346(b)(1),
2674). But there are exceptions to the FTCA, including the discretionary function
provision, which revokes the waiver of sovereign immunity for any 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 Supreme Court has developed a two-part test for determining whether agency
conduct qualifies as a discretionary function or duty." Spotts v. United States, 613 F.3d
559, 567 (5th Cir. 2010). The Court must determine (1) whether the challenged conduct
involves an element of judgment or choice, and (2) whether the judgment at issue was
"based on considerations of public policy." See id. at 567-68. The exception "does not apply
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if the challenged actions in fact violated a federal statute, regulation, or policy." Id. at 567.
It is well settled that "[d]ecisions to investigate, how to investigate and whether to
prosecute generally fall within this [discretionary function] exception." See Nguyen v.
United States, 65 F. App'x 509, at *1 (5th Cir. 2003); see also Sabow v. United States, 93
F.3d 1445, 1452-53 (9th Cir. 1996) (finding suit barred by discretionary function exception
because "[i]nvestigations by federal law enforcement officials . . . clearly require
investigative officers to consider relevant political and social circumstances in making
decisions about the nature and scope of a criminal investigation"); McCloskey v. Mueller,
385 F. Supp. 2d 74, 80 (D. Mass. 2005) (dismissing suit under discretionary function
exception because of the "FBI's broad discretion to decide whether to investigate and/or
apprehend a particular individual").
It takes no significant leap of logic to conclude that FBI investigations of candidates
for the federal bench plainly fall within the discretionary function exception and thus
cannot be pursued under the FTCA. At least to the same extent as a criminal investigation,
judicial nominee background checks involve a significant degree of judgment and are based
on significant public policy considerations. Short offers no cogent argument to the
contrary. He cites several cases without explanation, but none is on point. See Millbrook
v. United States, 133 S. Ct. 1441 (U.S. 2013) (interpreting intentional tort exception to
FTCA); McCarthy v. Madigan, 503 U.S. 140 (1992) (FTCA and discretionary function
exception not at issue); Rodriguez v. Sarabyn, 129 F.3d 760 (5th Cir. 1997) (same). Short
points to no federal statute, regulation, or policy specifically directing an action which the
FBI failed to take in investigating Judge Porteous prior to his appointment. In short, this
case falls within the "well-settled" principle that investigations fall within the discretionary
4

function exception to the FTCA waiver of sovereign immunity. See Nguyen, 65 F. App'x
509, at *1. Because sovereign immunity is not waived as to this claim, the Court lacks
subject matter jurisdiction. The Court therefore does not reach the United States' alternate
arguments in favor of dismissal.
IT IS ORDERED that the motion to dismiss is GRANTED.

New Orleans, Louisiana, this 18th day of February, 2014.

_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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