## Facts

- Charles Shuler worked for the United States as a confidential informant for the Federal Bureau of Investigation (FBI).
- Shuler told the FBI where to find Kevin Gray, a known drug-trafficking boss.
- Shuler was the only person who knew Gray’s location and asked the FBI not to arrest Gray immediately because he feared an immediate arrest would expose him as the source.
- The FBI arrested Gray immediately after receiving Shuler’s information.
- After the arrest, the FBI directed Shuler to continue working against Gray’s organization by arranging drug deals with members of Gray’s group.
- Shuler expressed safety concerns and initially refused, but an FBI agent assured him the FBI would protect him, and Shuler resumed undercover activity.
- About two weeks after Gray’s arrest, Shuler was shot in the back and left permanently paralyzed; he alleged that Gray ordered the shooting after Shuler’s cover was exposed.
- Shuler filed an administrative claim with the Department of Justice under the Federal Tort Claims Act (FTCA); the claim was denied.
- Shuler then filed an FTCA negligence suit in the U.S. District Court for the District of Columbia, alleging the government owed him a duty to protect his identity and safety and that the FBI’s actions and omissions caused his injuries.
- The United States moved to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), arguing the FTCA’s discretionary-function exception applied.
- The district court dismissed the action under the discretionary-function exception and later denied Shuler’s motion to alter or amend the judgment.
- Shuler appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

## Issues

1. Does the FTCA’s discretionary-function exception (28 U.S.C. § 2680(a)) bar Shuler’s negligence claim arising from the FBI’s decision to arrest Gray immediately and its decisions about how to use and protect Shuler as an informant?
2. Did Shuler identify any mandatory federal statute, regulation, or policy that removed the FBI’s discretion in deciding when to arrest Gray or how to handle Shuler’s safety, such that the exception would not apply?
3. Does an agent’s alleged promise to protect an informant convert law-enforcement and informant-management choices into non-discretionary duties actionable under the FTCA?

## Decision

- The D.C. Circuit affirmed the district court’s dismissal for lack of subject-matter jurisdiction and affirmed the denial of the motion to alter or amend the judgment.
- The court held that Shuler’s claims fell within the FTCA’s discretionary-function exception because the challenged conduct involved judgment or choice and was the type of decision § 2680(a) shields.
- On the first part of the discretionary-function test, the court concluded Shuler did not point to a specific, mandatory directive requiring the FBI to delay Gray’s arrest or to protect Shuler in a particular, prescribed manner.
- On the second part of the test, the court concluded that decisions about when to arrest a suspect and how to manage and safeguard a confidential informant are susceptible to policy considerations (including law-enforcement priorities, investigative strategy, resource allocation, and risk management).
- The court rejected the argument that an agent’s assurance of protection took the case outside the exception; the claim still challenged discretionary law-enforcement and informant-handling decisions, so sovereign immunity was not waived.

## Legal Principles

- The FTCA waives sovereign immunity only to the extent Congress has authorized suit, and courts lack subject-matter jurisdiction when a claim falls within an FTCA exception.
- Under the discretionary-function exception, the United States is not liable for claims “based upon the exercise or performance ... [of] a discretionary function or duty” by a federal agency or employee. 28 U.S.C. § 2680(a).
- Courts apply the Berkovitz/Gaubert two-step framework:
  - The conduct must involve judgment or choice (i.e., no federal statute, regulation, or policy specifically required a particular course of action).
  - The judgment must be of the type the exception protects, meaning it is susceptible to considerations of social, economic, or political policy.
- Decisions about investigative tactics, arrest timing, and the use and supervision of confidential informants commonly involve discretionary judgments tied to law-enforcement policy and therefore may fall within § 2680(a).
- A plaintiff cannot avoid the discretionary-function exception by characterizing the claim as negligent failure to protect where the alleged failure arises from discretionary choices about how to conduct an investigation and manage an informant.

## Conclusion

Shuler’s FTCA negligence suit sought damages for catastrophic injuries suffered while working as an FBI informant, alleging the FBI exposed him by arresting a drug boss immediately and then sent him back into danger without adequate protection; the D.C. Circuit held that these allegations targeted discretionary law-enforcement and informant-management decisions for which Congress preserved immunity under 28 U.S.C. § 2680(a), so the federal courts lacked jurisdiction and the dismissal was affirmed.


Shuler v. United States, 531 F.3d 930 (2008)