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MIHAYLOV v. U.S.

November 2, 1999

VIHAR MIHAYLOV, VIHRA MIHAYLOVA, ESTATE OF EVGENI MIHAYLOV, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Kennedy, District Judge.

MEMORANDUM OPINION

This suit is brought under the Federal Tort Claims Act.*fn1 Plaintiffs, the mother and father of Evgeni Mihaylov, claim that the United States Secret Service negligently executed its duty to protect and uphold the inviolability of the Bulgarian Chancery in Washington, D.C. and that, as a result, their son lost his life. Before the court is the United States' motion to dismiss or, in the alternative, for summary judgment. Having reviewed the motion, plaintiffs' opposition thereto, and the record of this case, the court concludes that the discretionary function exception to the Federal Tort Claims Act strips the court's subject matter jurisdiction over plaintiffs' claims.*fn2 Consequently, the United States' motion to dismiss will be granted.

I. FACTUAL BACKGROUND

The facts underlying plaintiffs' claims are undisputed and unfortunate. On October 23, 1995, shortly after 9 p.m., two would-be robbers attacked Evgeni Mihaylov, Panaiot Ignatiev, and their companion on the steps outside the Chancery of Bulgaria in Washington, D.C. A struggle ensued; the assailants beat Ignatiev about his head and face and shot Mihaylov as he tried to flee into the Embassy. The miscreants fled before three Secret Service Uniformed Division cruisers — dispatched by the Secret Service's Foreign Missions Branch Control Center — arrived on the scene.

When Secret Service Officers entered the Chancery, they found Mihaylov lying prone in the foyer. He was taken by ambulance to George Washington Hospital and declared dead at 10:40 p.m., felled at age 21 by a bullet that entered his left forearm and stopped only after piercing his heart.

Presumably in response to this gruesome incident, the Foreign Missions Branch assigned a single Secret Service officer to guard the Chancery of Bulgaria. This "fixed post coverage" began approximately two hours after the October 23, 1995, attack and ended on November 6, 1995. The assailants were apprehended some days later and — roughly two years after their crimes — were convicted and sentenced to lengthy prison terms.

Plaintiffs timely presented their claims to the United States Secret Service on October 20, 1997. After six months lapsed and plaintiffs received no response, they filed this action on September 8, 1998.

II. ANALYSIS

The United States may be sued only if federal legislation explicitly creates a cause of action.*fn3 In 1946, Congress passed the Federal Tort Claims Act ("FTCA") and for the first time recognized the federal government's liability in tort.*fn4 At first blush, the FTCA expansively provides jurisdiction in the federal district courts over claims against the United States:

  [F]or injury or loss of property, or personal injury or death
  caused by the negligent or wrongful act or omission of any
  employee of the Government while acting within the scope of his
  office or

  employment, under circumstances where the United States, if a
  private person, would be liable to the claimant in accordance
  with the law of the place where the act or omission occurred.*fn5

Congress carved out thirteen exceptions to this broad jurisdiction, however.*fn6

The exception at issue in this case, the discretionary function exception, exempts from judicial review "[a]ny claim based . . . upon the exercise or performance or the failure to 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."*fn7

The Supreme Court has established a two-step test to determine whether an action falls under the discretionary function exception (hereinafter Berkowitz Test).*fn8 First, the court determines whether any "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow."*fn9 If government policies leave room for an individual choice that "led to the events being litigated," then the action meets this threshold test. In the second step, the court asks whether the challenged action is "of the nature and quality that Congress intended to shield from tort liability."*fn10 Actions "grounded in social, economic, and political policy" meet this standard.*fn11 Ultimately, "exempt decisions are those `fraught with . . . public policy considerations.'"*fn12

Plaintiffs offer two general arguments to escape dismissal under the discretionary function exception. They primarily argue that the Secret Service's actions at issue here fail under the first step of the Berkowitz Test because federal law specifically prescribes the Secret Service's District foreign-mission protection strategy. Plaintiffs' alternatively argue that even if the discretionary function exception insulates from suit the Secret Service's plan to protect foreign missions in the District, ...


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