Panaiot Ignatiev v. United States, 238 F.3d 464 (D.C. Cir. 2001). · Go Syfert
Panaiot Ignatiev v. United States, 238 F.3d 464 (D.C. Cir. 2001). Cases Citing This Book View Copy Cite
“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.”
101 citation events (101 in the last 25 years) across 15 distinct courts.
Strongest positive: Vento v. United States of America (azd, 2023-10-10) · Strongest negative: Dichter-Mad Family Partners v. United States (ca9, 2013-02-12)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 37 distinct citers. How cited ↗
discussed Cited "but see" Dichter-Mad Family Partners v. United States
9th Cir. · 2013 · signal: but see · confidence high
In that case, sonably be expected to reveal any such the court held that the ‘‘plaintiffs have act.’’); accord Razore v. Tulalip Tribes of failed to articulate a discrete discovery Wash., 66 F.3d 236 , 240 (9th Cir.1995) request that might cure the jurisdictional (affirming dismissal of CERCLA action on deficiency and have failed to otherwise jurisdictional grounds without permitting specify where they might discover the nec- parties to conduct discovery); but see Ig- essary factual predicate for subject matter natiev v. United States, 238 F.3d 464 , 467 jurisdiction.’’ Id. at 342.
discussed Cited "but see" Dichter-Mad Family Partners, LLP v. United States
C.D. Cal. · 2010 · signal: but see · confidence high
See, e.g., Abreu v. United States, 468 F.3d 20, 33 (1st Cir.2006); Dalli v. Frech, 70 Fed.Appx. 46 (2d Cir.2003); see also Mesa v. United States, 123 F.3d 1435, 1439 (11th Cir.1997) (af *1053 firming dismissal under discretion function exception where “[plaintiffs] have pointed to no act of these DEA agents that could fall outside of the discretionary function exception, nor have the [plaintiffs] pointed to any requested discovery that could reasonably be expected to reveal any such act.”); accord Razore v. Tulalip Tribes of Wash., 66 F.3d 236 , 240 (9th Cir.1995) (affirming dismissal of C…
discussed Cited as authority (verbatim quote) Vento v. United States of America
D. Ariz. · 2023 · quote attribution · 1 verbatim quote · confidence high
nternal guidelines can be an 20 actionable source of a mandatory obligation under the ftca.
discussed Cited as authority (verbatim quote) Woodard v. Quote Storm Holdings, LLC
N.D. Ill. · 2023 · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (verbatim quote) Felicia Sanders v. United States
4th Cir. · 2019 · quote attribution · 1 verbatim quote · confidence high
nternal guidelines can be an actionable source of a mandatory obligation under the ftca.
discussed Cited as authority (verbatim quote) Kelly v. United States
E.D.N.C. · 2012 · signal: see also · quote attribution · 1 verbatim quote · confidence high
ijnternal guidelines can be an actionable source of a mandatory obligation under the ftca.
discussed Cited as authority (verbatim quote) Smith v. Washington Metropolitan Area Transit Authority
4th Cir. · 2006 · signal: see also · quote attribution · 1 verbatim quote · confidence high
ijnternal guidelines can be an actionable source of a mandatory obligation under the ftca
examined Cited as authority (rule) Winston v. Monahan (7×) also: Cited "see"
D.D.C. · 2026 · confidence medium
Cir. 2004) (alterations in original) (quoting Ignatiev, 238 F.3d at 467).
discussed Cited as authority (rule) Poss v. Kern
D.D.C. · 2024 · confidence medium
Circuit “require[s] that plaintiffs be given an opportunity for discovery of facts necessary to establish jurisdiction prior to decision of a 12(b)(1) motion,” Ignatiev v. United States, 238 F.3d 464, 467 (D.C.
cited Cited as authority (rule) Broidy Capital Management LLC v. Nicolas Muzin
D.C. Cir. · 2023 · confidence medium
Ignatiev v. United States, 238 F.3d 464, 466 (D.C.
discussed Cited as authority (rule) Chow v. Washington Metropolitan Area Transit Authority (2×) also: Cited "see, e.g."
D.D.C. · 2019 · confidence medium
But “[s]ince internal guidelines can be an actionable source of a mandatory obligation under the FTCA . . . an agency cannot shield itself from liability simply by denying the allegations of a complaint.” Ignatiev, 238 F.3d at 467 (cleaned up). 8 ORDERED that the Plaintiff’s Motion for Leave to File a Surreply is denied as moot.
discussed Cited as authority (rule) Chow v. Wash. Metro. Area Transit Auth. (2×) also: Cited "see, e.g."
D.C. Cir. · 2019 · confidence medium
But "[s]ince internal guidelines can be an actionable source of a mandatory obligation under the FTCA ... an agency cannot shield itself from liability simply by denying the allegations of a complaint." Ignatiev , 238 F.3d at 467 (cleaned up).
discussed Cited as authority (rule) Buzzanca v. District of Columbia (2×) also: Cited "see"
D.D.C. · 2019 · confidence medium
It “cannot shield itself from liability simply by denying the allegations of a complaint.” Ignatiev, 238 F.3d at 467 (holding that dismissal based on discretionary function immunity was inappropriate before jurisdictional discovery into internal policies).
discussed Cited as authority (rule) Woodruff v. United States of America
D.D.C. · 2017 · confidence medium
Before a court rules on a motion to dismiss for lack of jurisdiction, the plaintiff must “be given an opportunity for discovery of facts necessary to establish jurisdiction.” Ignatiev v. United States, 238 F.3d 464, 467 (D.C.
examined Cited as authority (rule) Briscoe v. United States (6×) also: Cited "see", Cited "see, e.g."
D.D.C. · 2017 · confidence medium
Ignatiev v. United States, 238 F.3d 464, 467 (D.C.
discussed Cited as authority (rule) Warren v. United States
D.N.M. · 2017 · confidence medium
Warren provides that “courts have sounded caution against granting a 12(b)(1) motion predicated on the discretionary function when the record is incomplete, as it is here.” Motion to Amend at 10 (citing Palay v. United States, 349 F.3d 418, 429, 432 (7th Cir. 2003)); Parrott v. United States, 536 F.3d 629, 638 (7th Cir. 2008); Ignatiev v. United States, 238 F.3d 464, 467 (D.C.
discussed Cited as authority (rule) Seaside Farm, Inc. v. United States
4th Cir. · 2016 · confidence medium
See, e.g., Gonzalez v. United States, 814 F.3d 1022, 1031-32 (9th Cir. 2016) (refusing discovery because available agency guidelines established discretion); Baer v. United States, 722 F.3d 168, 176-77 (3d Cir. 2013) (refusing discovery because available agency guidelines did not foreclose discretion); Davila v. United States, 713 F.3d 248, 263-64 (5th Cir. 2013) (refusing discovery because the plaintiff' failed to allege any “well-pleaded facts or evidence to refute the government’s assertion ... that no [nondiscretionary] policy exists”); Ignatiev v. United States, 238 F.3d 464, 467 (D…
discussed Cited as authority (rule) Davis v. Transportation Security Administration (2×) also: Cited "see, e.g."
D.D.C. · 2016 · confidence medium
See, e.g., Loughlin, 393 F.3d at 166-68 ; Ignatiev v. United States, 238 F.3d 464, 466-67 (D.C.Cir.2001); Donahue v. United States, 870 F.Supp.2d 97, 114-15 (D.D.C.2012); Sledge v. United States, 723 F.Supp.2d 87, 92-98 (D.D.C.2010). 9 The Court will follow the path of other courts in this Circuit, and will treat Plaintiffs argument under Rule 56(d) as a request for jurisdictional discovery.
discussed Cited as authority (rule) Lopes v. Jetsetdc, LLC
D.D.C. · 2014 · confidence medium
When a defendant challenges the factual basis for the Court’s subject matter jurisdiction via Rule 12(b)(1), plaintiff must “be given an opportunity for discovery of facts necessary to establish jurisdiction.” Ignatiev v. United States, 238 F.3d 464, 467 (D.C.Cir.2001); Loughlin v. United States, 393 F.3d 155, 167 (D.C.Cir.2004) (“Even in Ignatiev , however, we recognized that where ‘facts [are] necessary to establish jurisdiction,’ plaintiffs must be afforded the ‘opportunity for discovery of [such] facts ... prior to’ the granting of a motion to dismiss for lack of subject ma…
discussed Cited as authority (rule) Dichter-Mad Family Partners v. United States
9th Cir. · 2013 · confidence medium
Appx. 46 (2d Cir. 2003); see also Mesa v. 20 United States, 123 F.3d 1435, 1439 (11th Cir. 1997) (affirming 21 dismissal under discretion function exception where “[plaintiffs] have 22 pointed to no act of these DEA agents that could fall outside of the 23 discretionary function exception, nor have the [plaintiffs] pointed to 24 any requested discovery that could reasonably be expected to reveal any 25 such act.”); accord Razore v. Tulalip Tribe of Wash., 66 F.3d 236 , 240 26 (9th Cir. 1995) (affirming dismissal of CERCLA action on jurisdictional 27 grounds without permitting parties to co…
discussed Cited as authority (rule) Donahue v. United States of America (2×) also: Cited "see"
D.D.C. · 2012 · confidence medium
See Shuler v. United States, 531 F.3d at 933-34 ("Under the FTCA, the district court has subject matter jurisdiction to consider the merits of Shuler's claim only if his complaint sets forth facts sufficient to demonstrate either that the government employee whose conduct caused him harm violated a specifically prescribed policy, or that the employee’s harmful conduct was not within the sphere of discretion lawfully given him[.]") (emphasis added); Ignatiev v. United States, 238 F.3d 464, 466 (D.C.Cir.2001) (stating that to survive a motion to dismiss, a complaint must allege conduct that is…
discussed Cited as authority (rule) Molchatsky v. United States (2×) also: Cited "see"
S.D.N.Y. · 2011 · confidence medium
Ignatiev v. United States, 238 F.3d 464, 466-67 (D.C.Cir.2001) (citing Gaubert, 499 U.S. at 324-25 , 111 S.Ct. 1267 ). 8 Government’s Demonstration of Discretionary Framework If a plaintiff “fairly alleges negligence outside the scope of the DFE,” the Government must establish that “an activity is not mandated by statute and involves some element of judgment or choice” and that the decision in question was susceptible to policy analysis.
examined Cited as authority (rule) Sledge v. United States (3×) also: Cited "see, e.g."
D.D.C. · 2010 · confidence medium
Phoenix Consulting, 216 F.3d at 40 ; see also Loughlin, 393 F.3d at 167; Ignatiev v. United States, 238 F.3d 464, 467 (D.C.Cir.2001).
examined Cited as authority (rule) Sledge v. United States Bureau of Prisons (3×) also: Cited "see, e.g."
D.D.C. · 2010 · confidence medium
Phoenix Consulting, 216 F.3d at 40 ; see also Loughlin, 393 F.3d at 167; Ignatiev v. United States, 238 F.3d 464, 467 (D.C.
discussed Cited as authority (rule) Baptist Memorial Hospital v. Thompson
D.D.C. · 2009 · confidence medium
In certain circumstances, plaintiffs should “be given an opportunity for discovery of facts necessary to establish jurisdiction prior to decision of a 12(b)(1) motion.” Ignatiev v. United States, 238 F.3d 464, 467 (D.C.
discussed Cited as authority (rule) Baptist Memorial Hospital v. Johnson
D.D.C. · 2009 · confidence medium
In certain circumstances, plaintiffs should “be given an opportunity for discovery of facts necessary to establish jurisdiction prior to decision of a 12(b)(1) motion.” Ignatiev v. United States, 238 F.3d 464, 467 (D.C.Cir.2001).
discussed Cited as authority (rule) Shuler v. United States (2×) also: Cited "see"
D.C. Cir. · 2008 · confidence medium
We emphasize in this setting what we have stated before: “[t]he [discretionary function] exception always insulates a ‘permissible exercise of policy judgment.’ ” Ignatiev v. United States, 238 F.3d 464, 466 (D.C.Cir.2001) (quoting Berkovitz, 486 U.S. at 537 , 108 S.Ct. 1954 ).
discussed Cited as authority (rule) Singh v. South Asian Society of George Washington Univ.
D.D.C. · 2008 · confidence medium
Op. at 10 (citing Ignatiev v. United States, 238 F.3d 464, 467 (D.C.Cir.2001) (denying the United States’ motion to dismiss based on independent contractor exception in order to give the plaintiff an opportunity to conduct limited discovery on that issue)).
discussed Cited as authority (rule) Smith v. United States (2×)
D.D.C. · 2007 · confidence medium
For this latter type of challenge, plaintiffs must “be given an opportunity for discovery of facts necessary to establish jurisdiction.” Ignatiev v. United States, 238 F.3d 464, 467 (D.C.Cir.2001) (citations omitted).
discussed Cited as authority (rule) Corbond Corp. v. Core Foam, Inc.
W.D. Wis. · 2005 · confidence medium
Strength of mark “The term ‘strength’ as applied to trademarks refers to the distinctiveness of the mark, or more precisely, its tendency to identify the goods sold under the mark as emanating from a particular source.” Eli Lilly, 238 F.3d at 464.
cited Cited "see" Rabin v. U.S. Department of Health and Human Services
E.D.N.Y · 2024 · signal: see · confidence high
See Ignatiev v. United States, 238 F.3d 464 (D.C.
cited Cited "see" Dancy Hines v. Washington Metropolian Area Transit Authority
D.D.C. · 2022 · signal: see · confidence high
See Ignatiev v. United States, 238 F.3d 464 , 466–67 (D.C.
discussed Cited "see" Finn v. Great Plains Lending, LLC
10th Cir. · 2017 · signal: see · confidence high
See Ignatiev v. United States, 238 F.3d 464, 467 (D.C.
cited Cited "see" Macharia, Merania v. United States
D.C. Cir. · 2003 · signal: see · confidence high
See Ignatiev v. United States, 238 F.3d 464, 467 (D.C.Cir.2001) (remanding dismissal of FTCA claim for jurisdictional discovery).
cited Cited "see, e.g." Federal Deposit Insurance v. Dosland
N.D. Iowa · 2014 · signal: compare · confidence low
Compare Ignatiev, 238 F.3d at 467 .
discussed Cited "see, e.g." Powers-Bunce v. District of Columbia
D.D.C. · 2007 · signal: see, e.g. · confidence medium
See, e.g., Ignatiev v. United States, 238 F.3d 464, 465 (D.C.Cir.2001) (holding that the FTCA applied to negligence claims against Secret Service Uniformed Division officers). 2 The United States’s waiver of sovereign immunity in the FTCA is contingent upon a plaintiffs compliance with certain procedural prerequisites, including filing a claim with the appropriate federal agency within two years of the alleged injury.
cited Cited "see, e.g." Loughlin v. United States
D.D.C. · 2003 · signal: see also · confidence medium
See also Ignatiev v. United States, 238 F.3d 464, 467 (D.C.Cir.2001). 10 .
Retrieving the full opinion text from the archive…
Panaiot IGNATIEV, Appellant,
v.
UNITED STATES of America, Appellee
00-5002, 00-5005.
Court of Appeals for the D.C. Circuit.
Feb 9, 2001.
238 F.3d 464
Marjorie A. O’Connell argued the cause and filed the briefs for appellants., Lydia Kay Griggsby, Assistant United States Attorney, argued the cause for ap-pellee. With her on the brief were Wilma A. Lewis, United States Attorney, and R. Craig Lawrence, Assistant United States Attorney.
Williams, Garland, Silberman.
Cited by 37 opinions  |  Published

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 sovereign immunity. We reverse.

I.

In October 1995 outside the Chancery of Bulgaria in Washington, D.C., two armed individuals attempted to rob Panaiot Igna-tiev and Evgeni Mihaylov. A struggle ensued. Mihaylov was shot and killed. Ig-natiev 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 Mihay-lov was dead.

Ignatiev filed an administrative claim under the Federal Tort Claims Act (FTCA), [1] as did Mihaylov’s parents as survivors 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 suits brought under the FTCA, that waiver does not extend to suits premised on government actors’ exercises of policymaking discretion. The court concluded that foreign embassies’ 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 complaint, 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 United 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. § 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[*466] policy. Berkovitz v. United States, 486 U.S. 531, 536-37, 108 S.Ct. 1954, 100 L.Ed.2d 531 (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 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 — “concerning] allocation of military and law enforcement resources” — is exactly the sort of public policy decision that is protected by the discretionary function exception. See Industria Panificadora, 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 consulate to carry out their duties and enjoy the rights, facilities, privileges and immunities” provided by the Consular Convention 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 “appropriate.” 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. § 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 protection 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 missions located in the metropolitan area of the District of Columbia.” Still once again, appellants point to no mandatory 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 Panifica dora, 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 mandatory 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 Mihaylov, 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 unrestrained 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 considerations or base its claims on government agents’ mandatory obligations. Otherwise the court will presume that the challenged acts are discretionary public-[*467] policy decisions and not amenable to suit. See United States v. Gaubert, 499 U.S. 315, 324-25, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). But if appellants alleged that such a mandatory 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.CivP. 8(a)(2). Appellants here complained of “[t]he failure of the Secret Service to provide adequate protection to the Bulgarian 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. § 202. Still without discovery, appellants have no way to know what mandatory policies may bind the Secret Service. [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 expeditions” 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, 111 S.Ct. 1267, 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, limited perhaps to the issue of whether such guidelines exist, prior to dismissing for lack of subject matter jurisdiction.

* :J *

The order of the district court dismissing for lack of subject matter jurisdiction is reversed.

So ordered.

1

. 28 U.S.C. §§ 1346(b), 2671 et seq.

2

. See Mihaylov v. United States, 70 F.Supp.2d 4, 5 (D.D.C.1999).

3

. Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95 (Vienna Convention); Consular Convention 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).

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. National Academy of Sciences, 974 F.2d 192, 198 (D.C.Cir.1992).