John Doe v. United States of America, in Re John Doe, Debtor. John Doe v. United States

dissenting:

I dissent from that part of the majority opinion entitled “The Amendability Of The Complaint In Tort.” The plaintiff is unable to plead any set of circumstances where the government could be liable in tort for its agents disclosing on the high seas that the *499 plaintiff was participating in an undercover government investigation of money-laundering activities of the international Medellin drug cartel when the disclosure was made in order to persuade two members of the cartel to become informants for the Federal Bureau of Investigation (“FBI”). The majority have remanded the case to the district court in order to allow the plaintiff the opportunity to redraft his complaint so as to avoid the various exceptions to the Federal Tort Claims Act (“FTCA”) raised by the government. However, where redrafting could not cure the pleading, it is proper for the district court to dismiss the complaint without allowing the plaintiff to amend. Frigard v. United States, 862 F.2d 201, 204 (9th Cir.1988), cert. denied, 490 U.S. 1098 , 109 S.Ct. 2448 , 104 L.Ed.2d 1003 (1989). No matter how the plaintiff portrays the FBI’s conduct in revealing his identity, such conduct was protected…

John Doe appeals two judgments of the district court in favor of the United States in the above cases, which we have consolidated for purposes of decision on these appeals. We reverse the district court.

PROCEEDINGS

On June 4, 1993, Doe filed a complaint under the Federal Tort Claims Act (the FTCA) alleging that in October 1988 he began to assist the FBI in undercover work laundering money on behalf of members of the Medellin Cartel; that on November 13, 1990, he entered into a contract with the FBI by which he would be awarded a portion of the proceeds from each investigative case which he assisted; that the FBI promised him “that his identity as an informant and undercover operative would be protected at all costs”; that he assisted the FBI in luring two members of the cartel, Julio and Nacho, out of Columbia to Venezuela on the understanding with the FBI that their arrest would take place in a way that would preclude suspicion from falling on him, but that in fact the FBI arrested Julio and Nacho on a boat in Venezuela and, in order to persuade Julio and Nacho to become informants, the FBI disclosed to them that Doe had been serving as an FBI informant, thereby placing Doe,…

58 F.3d 494 64 USLW 2078 , 32 Fed.R.Serv.3d 795 , 27 Bankr.Ct.Dec. 554 , Bankr. L. Rep. P 76,564 , 95 Daily Journal D.A.R. 8594 John DOE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. In re John DOE, Debtor. John DOE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Nos. 93-56367, 94-55552. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 6, 1995. Submission Withdrawn Feb. 9, 1995. Resubmitted June 22, 1995. Decided June 29, 1995. Peter N. Scolney, Mark Shinderman and Jean R. Hutar, Weiss, Scolney, Spees, Danker & Shinderman, Los Angeles, CA, for plaintiff-appellant. Frank W. Hunger, Asst. U.S. Atty., Los Angeles, CA, Mark B. Stern, Sushma Soni, U.S. Dept. of Justice, Washington DC, for defendant-appellee. Appeals from the United States District Court for the Central District of California. Before: FERGUSON, BEEZER and NOONAN, Circuit Judges. NOONAN, Circuit Judge: 1 John Doe appeals two judgments of the district court in favor of the United States in the above cases, which we have consolidated for purposes of decision on these appeals. We reverse the district court. PROCEEDINGS 2 On June 4, 1993, Doe filed a…