U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

FBI Wins Appeal Over Agent Using Agency Tools to Spy on Wife

Shortly after discovering that her now ex-husband had been using his FBI spy tools, such as GPS monitoring equipment and more, to spy on her during their marriage, Aida Gordo-Gonzalez, not only filed for divorce, she sued the U.S. government under the Federal Tort Claims Act.

The lawsuit claims that the FBI was negligent in its supervision of her former husband, and should have realized he was misusing resources, and stopped it. However, despite this claim seeming like an obvious slam dunk winner, the U.S. was able to invoke sovereign immunity to defeat the claim.

Abusing and Misusing FBI Tools

Despite pleading facts that clearly show a gross abuse and misuse of federal resources for a rather improper purpose, the door opened by the Federal Tort Claims Act was not wide enough for this claim to get through. One of the many exceptions to the waiver of sovereign immunity provided under the FTCA is the discretionary function exception. And as the court found it applied in this matter, the dismissal of plaintiff's claim due to a lack of subject matter jurisdiction was affirmed.

What's a "Discretionary Function"?

If you think that nearly anything could be construed to be a discretionary function, you're probably right. The First Circuit explained:

Under the discretionary function exception, the United States does not waive sovereign immunity for any tort that arises from the exercise or performance or the failure to exercise or perform a discretionary function or duty whether or not the discretion involved be abused.

In order to show that a function or duty is not discretionary, a claimant must be able to point to a law, statute, regulation, or policy that dictates what a supervisor must do in a given situation. Basically, if a supervisor has discretion, what they choose to do can't create liability. Since the plaintiff was unable to do so, the appellate court affirmed the dismissal.

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