United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2000 Decided February 9, 2001

No. 00-5002

Panaiot Ignatiev,

Appellant

v.

United States of America,

Appellee

Consolidated with

00-5005

Appeals from the United States District Court

for the District of Columbia

(98cv02151)

(98cv02152)

Marjorie A. O'Connell argued the cause and filed the briefs

for appellants.

Lydia Kay Griggsby, Assistant United States Attorney,

argued the cause for appellee. With her on the brief were

Wilma A. Lewis, United States Attorney, and R. Craig

Lawrence, Assistant United States Attorney.

Before: Williams and Garland, Circuit Judges, and

Silberman, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

Silberman.

Silberman, Senior Circuit Judge: Appellants challenge the

dismissal of their tort claims against the federal government.

Their suits were dismissed for want of jurisdiction because

the challenged omission fell within the discretionary function

exception to the Federal Tort Claims Act's waiver of sover-

eign immunity. We reverse.

I.

In October 1995 outside the Chancery of Bulgaria in Wash-

ington, D.C., two armed individuals attempted to rob Panaiot

Ignatiev and Evgeni Mihaylov. A struggle ensued. Mihay-

lov was shot and killed. Ignatiev survived but suffered

various head injuries. In response to the gunfire, officers of

the United States Secret Service Uniformed Division were

dispatched to the Chancery. By the time they arrived,

however, the altercation was over and Mihaylov was dead.

Ignatiev filed an administrative claim under the Federal

Tort Claims Act (FTCA),1 as did Mihaylov's parents as sur-

vivors of his estate. After six months elapsed without a

response from the government, appellants filed suit. They

alleged that the Secret Service was negligent in performing

its duty to protect the Chancery, a duty imposed on the

United States by treaty and on the Secret Service by statute.

The district court dismissed for want of jurisdiction.2

Though the United States' sovereign immunity is waived for

__________

1 28 U.S.C. ss 1346(b), 2671 et seq.

2 See Mihaylov v. United States, 70 F. Supp. 2d 4, 5 (D.D.C.

1999).

suits brought under the FTCA, that waiver does not extend

to suits premised on government actors' exercises of policy-

making discretion. The court concluded that foreign embas-

sies' protection was entrusted to the discretion of the Foreign

Missions Branch of the Secret Service and that suits for

negligent protection were therefore barred.

II.

If appellants were to rely only on the wording of their

complaint they would be swimming upstream. The com-

plaint, which is rather summary, appears to allege only that

the Secret Service was negligent in performance of duties

imposed by "international law" and the United States Code.

It refers to the Vienna Convention on Diplomatic Relations

and the Consular Convention between Bulgaria and the Unit-

ed States.3

Appellants' difficulty is that the Federal Tort Claims Act,

which is their cause of action, provides a limited waiver of

sovereign immunity. The government is not liable 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 be abused." 28

U.S.C. s 2680(a). To fall within the exception, the act or

omission must involve an element of choice and must be based

on considerations of public policy. Berkovitz v. United

States, 486 U.S. 531, 536-37 (1988). The exception always

insulates a "permissible exercise of policy judgment" and

never applies "when a federal statute, regulation, or policy

specifically prescribes a course of action for an employee to

follow." Id.

To be sure, the Vienna Convention obliges signatories to

hold "inviolable" the premises of foreign missions and the

__________

3 Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23

U.S.T. 3227, 500 U.N.T.S. 95 (Vienna Convention); Consular Con-

vention Between the United States of America and the People's

Republic of Bulgaria, Apr. 15, 1974, U.S.-Bulg., 26 U.S.T. 687

(Consular Convention).

persons of diplomatic agents. Vienna Convention arts. 22, 29.

The host state must "take all appropriate steps to protect the

premises of the mission against any intrusion or damage and

to prevent any disturbance of the peace of the mission," id.

art. 22, and to "prevent any attack on [a diplomatic agent's]

person, freedom or dignity," id. art. 29. But the Convention

leaves what "steps" are "appropriate" to the discretion of the

host state. And that sort of discretion--"concern[ing] alloca-

tion of military and law enforcement resources"--is exactly

the sort of public policy decision that is protected by the

discretionary function exception. See Industria Panificado-

ra, S.A. v. United States, 957 F.2d 886, 887 (D.C. Cir. 1992)

(per curiam).

The Consular Convention is no more helpful to appellants.

It requires that the United States "shall ensure the proper

conditions for the normal operation of a consulate and shall

take all necessary measures to enable members of the consu-

late to carry out their duties and enjoy the rights, facilities,

privileges and immunities" provided by the Consular Conven-

tion and U.S. law. Consular Convention art. 9. But it leaves

to the United States complete discretion as to how to "ensure

the proper conditions" and as to what "measures" are "appro-

priate." Nothing in the Consular Convention mandates a

specific action not taken by the Secret Service.

Appellants argue that even if the specified conventions

impose no mandatory duty on the government, 3 U.S.C. s 202

imposes on the Secret Service an obligation to provide foreign

missions with heightened security, beyond simply ordinary

police protection. Section 202 delegates foreign-mission pro-

tection to the Secret Service. It provides that the Uniformed

Division of the Secret Service "shall perform such duties as

the Director, United States Secret Service, may prescribe in

connection with the protection of ... foreign diplomatic mis-

sions located in the metropolitan area of the District of

Columbia." Still once again, appellants point to no mandato-

ry actions required of the government and unperformed on

the night in question. The method for achieving the specified

standard of care is left to the Secret Service's discretion. See

Industria Panificadora, 957 F.2d at 887.

If then appellants were relying only on international and

statutory law, the dismissal would clearly be appropriate.

Yet in response to the motion to dismiss below, appellants

modified their claim to assert that the Service likely had

internal objectives or policies that created the requisite man-

datory obligation, but that appellants could not assert that

that was so without discovery.

The district court rejected this modification of appellants'

claim because of "the paucity of their factual averments."

See Milhaylov, 70 F. Supp. 2d at 9. The court thought that

allowing them to proceed with their claim "would encourage

subsequent litigation by hunch and engender the most unre-

strained of fishing expeditions." Id. We disagree. In this

case, appellants were caught between their ethical obligations

under Rule 11 and the demands of the FTCA, and they

responded appropriately.

Normally to survive a motion to dismiss in this area, a

complaint must either allege facts demonstrating that the

challenged actions are not grounded in public policy consider-

ations or base its claims on government agents' mandatory

obligations. Otherwise the court will presume that the chal-

lenged acts are discretionary public-policy decisions and not

amenable to suit. See United States v. Gaubert, 499 U.S. 315,

324-25 (1991). But if appellants alleged that such a mandato-

ry policy actually existed--without knowing whether it did or

not--they would risk violating Rule 11. See Fed. R. Civ. P.

11.

The Federal Rules of Civil Procedure require only that the

complaint contain "a short and plain statement of the claim

showing that the pleader is entitled to relief." Fed. R. Civ. P.

8(a)(2). Appellants here complained of "[t]he failure of the

Secret Service to provide adequate protection to the Bulgar-

ian Embassy" on the night Ignatiev and Mihaylov were

assaulted. This statement of the claim's facts is no doubt at

the shorter and plainer end of the descriptive continuum, but

descriptions of omissions often will be more summary than

descriptions of actions. What is missing from the complaint

is not a statement of the relevant facts--that the Secret

Service failed to protect the Bulgarian Chancery--but a

reference to applicable internal guidelines that rendered some

protective actions nondiscretionary. Appellants have reason

to believe that some such guidelines exist, since the Secret

Service's only mandate to protect Washington's missions is to

"perform such duties as the Director ... may prescribe." 3

U.S.C. s 202. Still without discovery, appellants have no way

to know what mandatory policies may bind the Secret Ser-

vice.4

We have previously required that plaintiffs be given an

opportunity for discovery of facts necessary to establish

jurisdiction prior to decision of a 12(b)(1) motion. See, e.g.,

El-Fadl v. Cent. Bank of Jordan, 75 F.3d 668, 676 (D.C. Cir.

1996); Crane v. Carr, 814 F.2d 758, 764 (D.C. Cir. 1987). The

issue here is even more narrow than in those cases, because

the only discovery necessary to establish jurisdiction pertains

not to the facts of the governmental action but to existence

vel non of internal governmental policies guiding that action.

Therefore, the district court's concerns about "fishing expedi-

tions" and "litigation by hunch" are unfounded. In effect,

appellants wished to discover not facts, but applicable rules.

And because those rules are the supposed internal guidelines

of the Secret Service, only discovery can reveal them.

Since internal guidelines can be an actionable source of a

mandatory obligation under the FTCA, see Gaubert, 499 U.S.

at 325, an agency cannot shield itself from liability simply by

denying the allegations of a complaint. It may be that there

are no such Secret Service guidelines, or that a valid privilege

prevents their disclosure, but neither has been established

thus far. The district court erred in not allowing discovery,

__________

4 The head of the Secret Service's Uniformed Division filed a

declaration below asserting that the Division's mission-protection

functions are generally discretionary. This declaration was not

cited in the district court's decision and so was presumably not a

factor in that decision. In any event, we do not think that such a

declaration or affidavit is sufficient to justify dismissal under Rule

12(b)(1). Cf. Herbert v. Nat'l Acad. of Sciences, 974 F.2d 192, 198

(D.C. Cir. 1992).

limited perhaps to the issue of whether such guidelines exist,

prior to dismissing for lack of subject matter jurisdiction.

* * * *

The order of the district court dismissing for lack of subject

matter jurisdiction is reversed.

So ordered.