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Mega Edition: The Report To Allow The Survivor Suit Against The FBI To Proceed (11/8/26) · Beyond The Horizon

• 0:00
  Speaker 1: What's up everyone and welcome to another episode of the
• 0:03
  Speaker 1: Epstein Chronicles. In this episode, we're going to take a
• 0:07
  Speaker 1: look at the report and recommendation by David S. Leibowitz,
• 0:12
  Speaker 1: who's a United States District Judge who is tasked with
• 0:15
  Speaker 1: the responsibility of figuring out if the survivor's lawsuit that
• 0:20
  Speaker 1: was filed against the FBI had enough merit to move forward.
• 0:24
  Speaker 1: And according to Judge Leibowitz, it did. So we have
• 0:29
  Speaker 1: that report and recommendation right here, and we're going to
• 0:32
  Speaker 1: dive in. Jane Doe 1, etc., Plaintiffs vs. United States
• 0:37
  Speaker 1: of America, Defendant. Report and Recommendation. This cause comes before
• 0:43
  Speaker 1: the court on defendant's motion to dismiss plaintiff's fourth amended complaint,
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  Speaker 1: which was referred to the undersigned by the United States
• 0:50
  Speaker 1: District Judge David Leibowitz. For the reasons set forth below,
• 0:54
  Speaker 1: the undersigned recommends that the motion be denied and and
• 0:58
  Speaker 1: that the district judge allow a limited period of jurisdictional discovery.
• 1:03
  Speaker 1: One background. This is a negligence case against the United
• 1:06
  Speaker 1: States brought by numerous sexual abuse victims of Jeffrey Epstein.
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  Speaker 1: The court accepts the following facts are true, taken from
• 1:13
  Speaker 1: the plaintiff's fourth amended complaint. A. Maria Farmer reports Epstein
• 1:18
  Speaker 1: in New York. In 1996, Maria Farmer contacted an FBI
• 1:22
  Speaker 1: agent in New York and reported that Epstein had sexually
• 1:25
  Speaker 1: assaulted her that he possessed child sexual abuse material, and
• 1:29
  Speaker 1: that he had sexually abused and trafficked numerous young girls.
• 1:32
  Speaker 1: At the end of the conversation, Farmer asked the FBI
• 1:35
  Speaker 1: agent if she should report Epstein to anyone else, including
• 1:39
  Speaker 1: any other law enforcement agencies. The FBI agent instructed Farmer
• 1:43
  Speaker 1: not to share her report with anyone else. Based on
• 1:47
  Speaker 1: this conversation, Farmer believed that the FBI agent would help
• 1:50
  Speaker 1: her and investigate her allegation. In accordance with the agent's instruction,
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  Speaker 1: Farmer did not contact any other law enforcement agency about
• 1:58
  Speaker 1: Epstein or his associates. The FBI agent never followed up
• 2:03
  Speaker 1: on Farmer's allegations. Plaintiffs allege that FBI agents knew or
• 2:08
  Speaker 1: should have known that their failure to investigate Farmer's allegations
• 2:12
  Speaker 1: would create an unreasonable risk of harm to other victims,
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  Speaker 1: including plaintiffs. Plaintiffs allege that the FBI agents created a
• 2:19
  Speaker 1: foreseeable zone of risk to future Epstein victims, including themselves,
• 2:24
  Speaker 1: by failing to investigate farmers' credible allegations. B. FBI agents
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  Speaker 1: in unidentified states ignore additional tips and red flags. Between
• 2:36
  Speaker 1: 1996 and 2005, FBI agents in unidentified states continued to
• 2:42
  Speaker 1: receive additional reports, complaints, and tips concerning Epstein's criminal activities,
• 2:48
  Speaker 1: including illegal sex trafficking of women and minors, sexual abuse,
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  Speaker 1: and human rights violations. In response, FBI agents failed to
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  Speaker 1: act upon and investigate these complaints and tips, and failed
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  Speaker 1: to follow internal protocols for sex trafficking investigations. FBI agents
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  Speaker 1: also failed to investigate numerous red flags, including the following.
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  Speaker 1: In October of 2002, a New York Magazine article reported
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  Speaker 1: that Epstein is frequently seen around town with a bevy
• 3:17
  Speaker 1: of comely young women. In 2002, federal authorities gave Epstein
• 3:22
  Speaker 1: clearance to travel on his private plane to Africa with
• 3:26
  Speaker 1: former President of the United States, as well as a
• 3:29
  Speaker 1: famous actor and several young women. Epstein's office frequently initiated
• 3:35
  Speaker 1: passports and visas for young women and underage girls for
• 3:38
  Speaker 1: the purpose of sex trafficking them. Epstein frequently requested new passports,
• 3:43
  Speaker 1: reported lost passports, and used multiple passports for traveling. C.
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  Speaker 1: Audra Christensen reports Epstein to the FBI agents in an
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  Speaker 1: unidentified state. At some point prior to 2005, Epstein sexually
• 3:57
  Speaker 1: abused and trafficked plaintiff Audra Christensen. In 2005, plaintiff Christensen
• 4:03
  Speaker 1: sought help from Hugh Hefner, the founder of Playboy magazine. Thereafter,
• 4:07
  Speaker 1: in 2005, Hefner contacted FBI agents multiple times in an
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  Speaker 1: unidentified state to report that Epstein had trafficked and abused
• 4:17
  Speaker 1: plaintiff Christensen. An FBI agent spoke to Hefner and explained
• 4:21
  Speaker 1: that the FBI would investigate the allegations and help Plaintiff Christensen.
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  Speaker 1: Relying on the FBI to investigate her claims, Plaintiff Christensen
• 4:30
  Speaker 1: did not contact other law enforcement agencies. FBI agents did
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  Speaker 1: not follow up on Plaintiff Christensen's allegations until 15 years later.
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  Speaker 1: When FBI agents finally interviewed her, plaintiffs alleged that FBI
• 4:43
  Speaker 1: agents knew or should have known that their failure to
• 4:46
  Speaker 1: follow up on Plaintiff Christensen's allegations would create an unreasonable
• 4:51
  Speaker 1: risk of harm to future victims, including other plaintiffs. Plaintiffs
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  Speaker 1: further allege that FBI agents created a foreseeable zone of
• 4:59
  Speaker 1: risk to future Epstein victims, including themselves, by failing to
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  Speaker 1: investigate Plaintiff Christensen's allegations more quickly. D. The 2006 FBI
• 5:09
  Speaker 1: investigation in Florida In March of 2005, a woman contacted
• 5:15
  Speaker 1: the Palm Beach Police Department to report that a 14-year-old
• 5:18
  Speaker 1: girl had been recruited to Epstein's home for a sexual
• 5:21
  Speaker 1: massage in exchange for money. The Palm Beach Police Department
• 5:25
  Speaker 1: promptly launched an investigation that included trash runs, witness interviews,
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  Speaker 1: and execution of a search warrant at Epstein's Palm Beach home.
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  Speaker 1: The investigation uncovered compelling evidence that Epstein and others had
• 5:38
  Speaker 1: recruited minors to travel to Epstein's Palm Beach home to
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  Speaker 1: give them massages and engage in sexual activity. In July
• 5:45
  Speaker 1: of 2006, the Palm Beach Police Department referred the case
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  Speaker 1: to the FBI's West Palm Beach Field Office, which opened
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  Speaker 1: the case on July 24, 2006. Plaintiffs allege that FBI
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  Speaker 1: agents thereafter conducted a negligent investigation marked by numerous defects,
• 6:03
  Speaker 1: including but not limited to the following. Failure to interview
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  Speaker 1: or contact all victims, even though FBI agents had their
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  Speaker 1: names and telephone numbers. Failure to secure information a signed
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  Speaker 1: statement from each victim as required by FBI protocol, failure
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  Speaker 1: to secure all possible evidence to corroborate the statements of
• 6:22
  Speaker 1: victims as required by FBI protocols, making victims feel like they,
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  Speaker 1: the victims, had done something wrong or illegal during victim interviews.
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  Speaker 1: In 2007, federal prosecutors in the Southern District of Florida
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  Speaker 1: declined to bring federal charges against Epstein. Instead, on September 24, 2007,
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  Speaker 1: the U.S. Attorney's Office for the Southern District of Florida
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  Speaker 1: entered into a non-prosecution agreement with Epstein. The agreement called
• 6:52
  Speaker 1: for Epstein to plead guilty to one state charge for
• 6:55
  Speaker 1: solicitation of a minor and serve 13 months in state jail.
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  Speaker 1: Epstein was allowed to leave the jail every day for
• 7:02
  Speaker 1: work release. While on work release, Epstein continued to sexually
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  Speaker 1: abuse women and teenagers. Despite the non-prosecution agreement, FBI agents
• 7:12
  Speaker 1: thereafter sent numerous letters to Epstein's victims in October 2007,
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  Speaker 1: January 2008, and May 2008, claiming the case was currently
• 7:22
  Speaker 1: under investigation. This representation was false, as the case had
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  Speaker 1: ended with the non-prosecution agreement. By sending these letters, FBI
• 7:31
  Speaker 1: agents misled victims to believing federal prosecution was still a possibility.
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  Speaker 1: The victims relied on the FBI's misrepresentation that it was
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  Speaker 1: continuing and to investigate Epstein. The 2019 Investigation and Arrest
• 7:47
  Speaker 1: in New York Following the release from state jail under
• 7:51
  Speaker 1: the non-prosecution agreement, Epstein continued to sexually assault underage girls
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  Speaker 1: up to the date of his eventual arrest in 2019.
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  Speaker 1: On July 6, 2019, FBI agents finally arrested Epstein on
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  Speaker 1: federal sex trafficking and conspiracy charges, resulting from an investigation
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  Speaker 1: in the Southern District of New York On August 10, 2019,
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  Speaker 1: approximately one month after his arrest, Epstein died in prison
• 8:19
  Speaker 1: from an apparent suicide. As a result, Epstein never went
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  Speaker 1: to trial on federal sex trafficking charges. F. Tort Claims
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  Speaker 1: Plaintiffs allege that Epstein sexually abused each of them on
• 8:31
  Speaker 1: various occasions between 1996 and 2017. Plaintiffs allege that employees
• 8:37
  Speaker 1: of the FBI and Department of Justice owe them the
• 8:40
  Speaker 1: duty of care on two bases. First, that these employees
• 8:44
  Speaker 1: voluntarily undertook a duty to protect them from Epstein. And second,
• 8:49
  Speaker 1: that these employees created a foreseeable zone of risk that
• 8:53
  Speaker 1: gave rise to a legal duty to prevent Epstein from
• 8:56
  Speaker 1: harming plaintiffs. According to plaintiffs, FBI agents breached these legal
• 9:01
  Speaker 1: duties in numerous ways, including the following. A. Failing to
• 9:05
  Speaker 1: properly investigate or follow up on Maria Farmer's report 96. B.
• 9:10
  Speaker 1: failing to properly respond to tips and reports regarding sex
• 9:14
  Speaker 1: trafficking of minors and sexual abuse of minors from 1996
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  Speaker 1: to 2005. C, failing to investigate or follow up on
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  Speaker 1: Plaintiff Christensen's allegations of sexual abuse and trafficking in 2005. D,
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  Speaker 1: failing to follow up and investigate reports and tips of
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  Speaker 1: suspicious banking activity from financial institutions, including payments to minor girls. E.
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  Speaker 1: Failing to properly investigate evidence provided by the Palm Beach
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  Speaker 1: Police Department. F. Negligently failing to investigate CSAM during the
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  Speaker 1: 2005 raid of Epstein's Palm Beach home. G. Negligently failing
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  Speaker 1: to investigate CSAM during the 2005 raid of Epstein's Palm
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  Speaker 1: Beach home. H. Negligently failing to interview and assist the victim. J.
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  Speaker 1: Negligently permitting Epstein sex trafficking minors and young women via
• 10:23
  Speaker 1: the clearing of background checks for passengers on Epstein's private jet. K.
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  Speaker 1: Ignoring reports of violence and threats to victims if they
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  Speaker 1: cooperated with authorities. L. Ignoring reports of child sex trafficking. M.
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  Speaker 1: Ignoring evidence of minors procuring other minors for sex abuse. N.
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  Speaker 1: Prematurely closing an FBI file in the face of evidence
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  Speaker 1: of sex trafficking and sexual abuse of minors. O, ignoring
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  Speaker 1: reports of suspicious banking activities. P, ignoring CSAM and child pornography. Q,
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  Speaker 1: failing to follow up on improper issuing of passports and
• 11:01
  Speaker 1: federal passport fraud. Plaintiffs allege that the negligent conduct of
• 11:06
  Speaker 1: FBI agents caused them to suffer injuries. Specifically, they allege that,
• 11:10
  Speaker 1: but for FBI agents, failure to comply with their mandatory
• 11:14
  Speaker 1: obligation to investigate and intervene based on the information they
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  Speaker 1: received Epstein would not have been able to continue to
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  Speaker 1: commit further crimes, including those committed against plaintiffs. Based on
• 11:26
  Speaker 1: the above, plaintiffs bring two counts of negligence under the
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  Speaker 1: federal tort claims. U.S. Code 28 Section 2671 FTCA as follows.
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  Speaker 1: Negligence under the Voluntary Undertaking Doctrine to Negligence under the
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  Speaker 1: Zone of Risk Doctrine. Plaintiffs seek $ 320, 000, 000 in compensatory damages,
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  Speaker 1: as well as other relief. All right, we're going to
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  Speaker 1: wrap up episode one right here, and in the next episode,
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  Speaker 1: we're picking up with two, legal standard. All the information
• 11:58
  Speaker 1: that goes with this episode can be found in the
• 12:01
  Speaker 1: description box. What's up, everyone, and welcome to another episode
• 12:05
  Speaker 1: of the Epstein Chronicles. In this episode, we're picking up
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  Speaker 1: where we left off with Judge Leibowitz and his memorandum
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  Speaker 1: on the Epstein survivors' lawsuit filed against the FBI. 2.
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  Speaker 1: Legal Standard By way of this motion, the government seeks
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  Speaker 1: dismissal of the FAC pursuant to Rule 12b-1 and 12b-6
• 12:28
  Speaker 1: of the Federal Rules of Civil Procedure. As to Rule 12b-1,
• 12:33
  Speaker 1: the government argues that the case must be dismissed for
• 12:36
  Speaker 1: the lack of a subject matter jurisdiction because the FTCA
• 12:40
  Speaker 1: does not waive sovereign immunity from the claims alleged in
• 12:43
  Speaker 1: the FAC. As the 11th Circuit Court has recognized, Rule
• 12:47
  Speaker 1: 12b-1 allows for two types of attacks on subject matter jurisdiction,
• 12:51
  Speaker 1: facile attacks and factual attacks. Lawrence v. Dunbar, 919 F. 2d, 1525-1529,
• 12:59
  Speaker 1: 11th Circuit, 1990. When a defendant makes a facile attack,
• 13:04
  Speaker 1: a court must look and see if the plaintiff has
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  Speaker 1: sufficiently alleged the basis of subject matter jurisdiction and the
• 13:11
  Speaker 1: allegations in his complaint are taken as true for the
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  Speaker 1: purposes of the motion. When a defendant raises a factual attack,
• 13:18
  Speaker 1: the parties may offer extrinsic evidence, at which point the
• 13:22
  Speaker 1: district court must weigh the evidence and satisfy itself as
• 13:26
  Speaker 1: the existence of its power to hear the case. Moreover,
• 13:29
  Speaker 1: when a defendant makes a factual attack, a district court
• 13:33
  Speaker 1: cannot dismiss the complaint without first affording the plaintiff an
• 13:36
  Speaker 1: opportunity for discovery. As to Rule 12b-6, the government argues
• 13:42
  Speaker 1: that even if the subject matter jurisdiction exists, The FAC
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  Speaker 1: nevertheless fails to state claims upon which relief can be granted.
• 13:51
  Speaker 1: In evaluating Rule 12b-6 motion, a court must accept a
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  Speaker 1: plaintiff's allegations as true and construe them in the light
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  Speaker 1: most favorable to the plaintiff. Although Rule 8a-2 requires only
• 14:03
  Speaker 1: a short and plain statement of the claim showing that
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  Speaker 1: the pleader is entitled to relief, a mere formulaic recitation
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  Speaker 1: of the elements of a cause of action will not do. Instead,
• 14:13
  Speaker 1: a complaint, must contain sufficient factual matter, except it is true,
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  Speaker 1: to state a claim to relief that is plausible on
• 14:20
  Speaker 1: its face. Ashcroft v. Zickbaugh. A claim has facile plausibility
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  Speaker 1: when the plaintiff pleads factual content and allows the court
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  Speaker 1: to draw the reasonable inference that the defendant is liable
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  Speaker 1: for the misconduct alleged. 3. Discussion. The government raises four
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  Speaker 1: arguments in support of dismissal, which the court will address
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  Speaker 1: in logical order below. For the sake of the completeness
• 14:43
  Speaker 1: and for the benefit of the district judge, the court
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  Speaker 1: makes recommendations on all arguments raised by the parties, even
• 14:50
  Speaker 1: where a given recommendation may moot another argument. A. Discretionary
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  Speaker 1: Function Exception The government first urges dismissal based on the
• 15:00
  Speaker 1: discretionary function exception. By way of the FTCA, the government
• 15:04
  Speaker 1: agrees to waive its sovereign immunity for limited categories of cases.
• 15:08
  Speaker 1: Mata v. AM v. United States 11th Circuit 2013. Because
• 15:15
  Speaker 1: the FTCA operates as a waiver of sovereign immunity, the
• 15:19
  Speaker 1: statute must be strictly construed in favor of the United States,
• 15:23
  Speaker 1: and not enlarged beyond the language of the statute requires.
• 15:28
  Speaker 1: If a claim falls outside the scope of the FTCA,
• 15:31
  Speaker 1: a district court lacks subject matter jurisdiction, and the case
• 15:34
  Speaker 1: must be dismissed. Idea 1234. Finding that the government's sovereign
• 15:39
  Speaker 1: immunity remains intact for claims outside of the FTCA, and
• 15:43
  Speaker 1: that no subject matter jurisdiction exists, over such claims. Here,
• 15:47
  Speaker 1: the government makes a facile attack on subject matter jurisdiction,
• 15:51
  Speaker 1: relying on discretionary function exception, which provides as follows. The
• 15:56
  Speaker 1: provisions of this chapter in section 1346b of the title
• 16:00
  Speaker 1: shall not apply to a. any claim based upon an
• 16:03
  Speaker 1: act or omission of an employee of the government, exercising
• 16:07
  Speaker 1: due care, in the execution of a statute or regulation,
• 16:10
  Speaker 1: whether or not such statute or regulation be valid, or
• 16:14
  Speaker 1: based upon the exercise or performance or failure to exercise
• 16:18
  Speaker 1: or perform a discretionary function or duty on the part
• 16:22
  Speaker 1: of the federal agency or an employee of the government,
• 16:25
  Speaker 1: whether or not the discretion involved be abused. U.S. Code 28,
• 16:29
  Speaker 1: Section 2680. This exception marks the boundary between Congress's willingness
• 16:34
  Speaker 1: to impose tort liability upon the United States and and
• 16:38
  Speaker 1: its desire to protect certain governmental activities from exposure to
• 16:42
  Speaker 1: suit by private individuals. In applying the discretionary function exception,
• 16:47
  Speaker 1: a court must first determine exactly what conduct is at issue.
• 16:51
  Speaker 1: Autry v. United States, 11th Circuit, 1993. Here, the conduct
• 16:56
  Speaker 1: at issue involves the following. The mishandling of Maria Farmer's
• 17:00
  Speaker 1: complaint to FBI agents in New York in 1996, including
• 17:04
  Speaker 1: the taking of no action in response to the complaint.
• 17:07
  Speaker 1: The mishandling of additional tips and red flags by FBI
• 17:10
  Speaker 1: agents in unidentified states from 1996 to 2005, including the
• 17:15
  Speaker 1: failure to act upon and investigate those complaints and tips,
• 17:19
  Speaker 1: and the failure to comply with mandatory protocols and guidelines.
• 17:24
  Speaker 1: The mishandling of Plaintiff Christensen's complaint to the FBI agents
• 17:28
  Speaker 1: in an unidentified state in 2005, including the failure to
• 17:32
  Speaker 1: interview Plaintiff Christensen until 15 years later. The mishandling of
• 17:36
  Speaker 1: a referral to from the Palm Beach Police Department to
• 17:39
  Speaker 1: FBI agents in Florida in 2006, including the failure to
• 17:43
  Speaker 1: interview all victims and witnesses and to secure all possible
• 17:47
  Speaker 1: evidence to corroborate victim statements, all of which resulted in
• 17:51
  Speaker 1: a federal non-prosecution agreement that allowed Epstein to plead guilty
• 17:55
  Speaker 1: to state charges and serve only 13 months in state
• 17:58
  Speaker 1: jail with daily work release rather than face more severe
• 18:02
  Speaker 1: charges and consequences. the failure of FBI agents to prevent
• 18:07
  Speaker 1: Epstein from committing further crimes. Once a court has identified
• 18:11
  Speaker 1: the exact conduct at issue, a two-step test determines whether
• 18:16
  Speaker 1: the discretionary function exception applies. One, whether the conduct at
• 18:20
  Speaker 1: issue involves an element of judgment or choice by the
• 18:23
  Speaker 1: federal employee, and two, whether that judgment is of the
• 18:26
  Speaker 1: kind that discretionary function exception was designed to shield. Berkovitz,
• 18:31
  Speaker 1: First United States, 1988. Of significance here, the discretionary function
• 18:37
  Speaker 1: exception does not apply where federal employees fail to follow
• 18:41
  Speaker 1: a mandatory non-discretionary policy or procedure. See Akron v. U.S.
• 18:47
  Speaker 1: 11th Circuit 97, noting that conduct does not involve an
• 18:51
  Speaker 1: element of judgment or choice, and thus is not discretionary.
• 18:56
  Speaker 1: If a federal statute, regulation, or policy specifically prescribes a
• 19:00
  Speaker 1: course of action for an employee to follow, because the
• 19:02
  Speaker 1: employee has no rightful option but to adhere to the directive.
• 19:07
  Speaker 1: In this case, plaintiffs argue that the discretionary function exception
• 19:11
  Speaker 1: does not apply, because FBI agents failed to follow certain
• 19:15
  Speaker 1: mandatory non-discretionary policies and procedures set forth in the FBI
• 19:19
  Speaker 1: Manual and the FBI Manual of Investigative Operations and Guidelines
• 19:26
  Speaker 1: concerning the investigation of child sexual abuse and CSAM cases,
• 19:30
  Speaker 1: including the following. Failure to conduct a preliminary inquiry and
• 19:34
  Speaker 1: investigation as required by the MIOG. Failure to interview the
• 19:38
  Speaker 1: subject of the investigation Epstein as required by the MIOG.
• 19:46
  Speaker 1: Failure to draft an FD-71 form as required by the MIOG.
• 19:50
  Speaker 1: MIOG in response to a report of child pornography. Failure
• 19:54
  Speaker 1: to interview the complainant for each allegation of child sexual
• 19:58
  Speaker 1: abuse and failure to secure a signed statement from each
• 20:01
  Speaker 1: victim as required by the FBI manual. Failure to secure
• 20:05
  Speaker 1: all possible evidence to corroborate the statement of the victim
• 20:09
  Speaker 1: as required by the FBI manual. Failure to obtain names
• 20:13
  Speaker 1: with aliases, description, brief personal histories, reputation, marital status, and
• 20:18
  Speaker 1: identification records of subject and victims as required by the
• 20:22
  Speaker 1: FBI manual. The court expresses skepticism as to whether these
• 20:27
  Speaker 1: policies and procedures remove this case from the discretionary function exception,
• 20:33
  Speaker 1: the overwhelming consensus of federal case law, establishes that criminal
• 20:37
  Speaker 1: law enforcement decisions, investigative and prosecutorial alike, are discretionary in nature,
• 20:43
  Speaker 1: and therefore, by congressional mandate, immune from judicial review. Mesa v. U.S., 1997.
• 20:51
  Speaker 1: In the Court's view, law enforcement investigations remain discretionary exercises
• 20:56
  Speaker 1: regardless of the prelim steps that a particular agency might
• 21:00
  Speaker 1: require its field agents to follow. This is because law
• 21:04
  Speaker 1: enforcement agents retain discretion at all times, to weigh and
• 21:07
  Speaker 1: evaluate the evidence they recover and make decisions going forward
• 21:11
  Speaker 1: in the investigation. Put differently, even if FBI agents had
• 21:15
  Speaker 1: followed all of the policies and procedures cited by plaintiffs,
• 21:19
  Speaker 1: the ultimate decision to assess the credibility of the evidence
• 21:22
  Speaker 1: recovered would have remained within the discretion of the agents
• 21:26
  Speaker 1: who gathered the evidence. As the Ninth Circuit observed, FBI
• 21:30
  Speaker 1: agents like detectives and police officers must evaluate whether the
• 21:34
  Speaker 1: information requires immediate action, deferred action, or no action at all.
• 21:39
  Speaker 1: They have to make judgments about how the potential for
• 21:42
  Speaker 1: future criminal activity fits the agency's mission and enforcement priorities. Indeed,
• 21:47
  Speaker 1: agents may disagree among themselves about the significance or credibility
• 21:51
  Speaker 1: of information they receive. More to the point, plaintiffs brought
• 21:56
  Speaker 1: this suit based on the failure of FBI agents to
• 21:59
  Speaker 1: prevent Epstein from committing further crimes. Plaintiffs have not alleged
• 22:03
  Speaker 1: the existence of any mandatory non-discretionary policies or procedures that
• 22:08
  Speaker 1: would have required FBI agents to arrest Epstein or to
• 22:11
  Speaker 1: prioritize his case over other serious cases. Likewise, plaintiffs have
• 22:17
  Speaker 1: not alleged the existence of any mandatory non-discretionary policy or
• 22:21
  Speaker 1: procedure that would have required FBI agents to initiate criminal
• 22:25
  Speaker 1: charges against Epstein or recommend that state or federal prosecutors do.
• 22:30
  Speaker 1: These types of decisions go to the core of law
• 22:32
  Speaker 1: enforcement discretion. See Martinez v. U.S., DDC, 2008. The decision
• 22:39
  Speaker 1: to allocate limited governmental resources to investigate a reported crime,
• 22:43
  Speaker 1: like the decision to allocate limited resources to prosecute a crime,
• 22:48
  Speaker 1: is a discretionary function. Nevertheless, the undersigned recommends that the
• 22:52
  Speaker 1: district judge defer resolution of this issue until after plaintiffs
• 22:57
  Speaker 1: have had an opportunity for limited jurisdictional discovery. Judge Dimitri
• 23:02
  Speaker 1: Alice faced a similar issue in Marjory Stoneman Douglas High
• 23:05
  Speaker 1: School shooting, a case involving the school shooting of Marjory
• 23:09
  Speaker 1: Stoneman Douglas High School. In that case, the government raised
• 23:13
  Speaker 1: the discretionary function exception in response to FTCA claims brought
• 23:17
  Speaker 1: against FBI agents concerning their response to tips regarding a
• 23:21
  Speaker 1: potential school shooting. Before considering the issue on the merits,
• 23:25
  Speaker 1: Judge Dimitri Alice allowed jurisdictional discovery regarding the existence and
• 23:30
  Speaker 1: content of any mandatory established policy, protocol, and procedure, whether
• 23:35
  Speaker 1: written or otherwise, governing the FBI's conduct in assessing or
• 23:40
  Speaker 1: handling tips regarding potential threats to life, active shooters, mass shootings,
• 23:45
  Speaker 1: terrorism threats, and or school shootings. In this case, the
• 23:49
  Speaker 1: district judge likewise opined in response to earlier motion practice
• 23:53
  Speaker 1: that this case should not be dismissed on discretionary function
• 23:57
  Speaker 1: grounds without first affording plaintiffs an opportunity for discovery. The
• 24:01
  Speaker 1: court makes this recommendation based on the unique facts of
• 24:04
  Speaker 1: the case. Given that the government raised the discretionary function
• 24:09
  Speaker 1: exception by way of facile attack on subject matter jurisdiction,
• 24:13
  Speaker 1: this recommendation marks an exception to the general rule. In
• 24:17
  Speaker 1: contrast to the factual attacks, plaintiffs have no per se
• 24:20
  Speaker 1: right to discovery before dismissal can be ordered in response
• 24:24
  Speaker 1: to a facile attack on subject matter jurisdiction. See McElmurray v.
• 24:29
  Speaker 1: The Government of Richmond City. 11th Circuit, 2007, distinguishing between
• 24:34
  Speaker 1: facile and factual attacks and finding that discovery was not
• 24:37
  Speaker 1: necessary before dismissal on facile attack. Similarly, district courts enjoy
• 24:42
  Speaker 1: broad discretion to control the timing of discovery and plaintiffs
• 24:47
  Speaker 1: have no automatic right to conduct discovery in order to
• 24:50
  Speaker 1: learn the facts that would establish or enable them to
• 24:53
  Speaker 1: state a plausible claim for relief. Instead, plaintiffs must allege
• 24:57
  Speaker 1: such facts at the outset of the case. By making
• 25:00
  Speaker 1: this recommendation, the undersigned does not announce or advocate a
• 25:04
  Speaker 1: blanket rule that FTCA plaintiffs always have a right to
• 25:07
  Speaker 1: discovery when the government raises a discretionary function exception by
• 25:12
  Speaker 1: the way of facile attack on the subject matter jurisdiction.
• 25:16
  Speaker 1: In the court's view, district courts retain discretion to stay
• 25:20
  Speaker 1: discovery in such cases and may order dismissal even without
• 25:24
  Speaker 1: the benefit of discovery. The undersigned nevertheless recommends that the
• 25:29
  Speaker 1: district judge, in the exercise of his discretion in this case,
• 25:33
  Speaker 1: allow a 90-day period of jurisdictional discovery limited to the
• 25:37
  Speaker 1: existence of content of any mandatory established policy, protocol, and procedures,
• 25:42
  Speaker 1: whether written or otherwise governing the FBI's conduct in assessing
• 25:46
  Speaker 1: or handling tips, reports, complaints regarding sexual abuse, child sexual abuse,
• 25:52
  Speaker 1: and or child abuse material. Once this discovery has been completed,
• 25:57
  Speaker 1: the government may renew this motion seeking dismiss under the
• 26:00
  Speaker 1: discretionary function exception. All right, folks, we're going to wrap
• 26:04
  Speaker 1: up right here. And in the next episode, we're going
• 26:06
  Speaker 1: to pick up with B, lack of private party analogs
• 26:10
  Speaker 1: under state law. All the information that goes with this
• 26:13
  Speaker 1: episode can be found in the description box. What's up, everyone?
• 26:17
  Speaker 1: And welcome to another episode of the Epstein Chronicles. In
• 26:21
  Speaker 1: this episode, we're getting right back to the report from
• 26:24
  Speaker 1: Judge Leibowitz About the survivor's lawsuit filed. Against the FBI. B.
• 26:31
  Speaker 1: Lack of private party analogs. Under state law. The government
• 26:36
  Speaker 1: next urges dismissal. Based on the lack of private party analogs.
• 26:40
  Speaker 1: Under applicable state law. By way of the FTCA. The
• 26:44
  Speaker 1: government only agrees to waive. Its sovereign immunity. In the
• 26:47
  Speaker 1: same manner. And to the same extent. As a private individual.
• 26:51
  Speaker 1: Under like circumstances. Likewise the FTCA. only gives federal court
• 26:56
  Speaker 1: subject matter jurisdiction over and hence the government only waives
• 27:00
  Speaker 1: its sovereign immunity for claims in which the U.S., if
• 27:03
  Speaker 1: a private person, would be liable to the claimant in
• 27:06
  Speaker 1: accordance with the law of the place where the act
• 27:09
  Speaker 1: or omission occurred. U.S. Code 28 Section 1346B1 For purpose
• 27:15
  Speaker 1: of this statute, the law of the place where the
• 27:18
  Speaker 1: act or omission occurred means the law of the state
• 27:20
  Speaker 1: where the alleged tort occurred. In other words, FTCA liability
• 27:24
  Speaker 1: cannot be triggered unless the federal employee's conduct would be
• 27:28
  Speaker 1: independently tortious against a private person under applicable state law.
• 27:33
  Speaker 1: Courts often refer to this requirement as the private party analog.
• 27:38
  Speaker 1: In a medical malpractice case, for example, a government doctor
• 27:41
  Speaker 1: working at Veterans Administration Hospital could be compared to a
• 27:45
  Speaker 1: private doctor working at a private hospital. In that situation,
• 27:49
  Speaker 1: the FTCA would waive sovereign immunity to the same extent
• 27:53
  Speaker 1: that a private doctor could be held liable under state
• 27:56
  Speaker 1: tort law under like circumstances. As the 11th Circuit observed
• 28:00
  Speaker 1: in Zelaya, it can be conceptually difficult to find private
• 28:03
  Speaker 1: party analogs for cases that involve uniquely governmental functions. Idea 1324.
• 28:11
  Speaker 1: Noting that it can be difficult to imagine how a
• 28:13
  Speaker 1: private person could be liable for breaches of such quintessentially
• 28:17
  Speaker 1: governmental functions as the regulation of air travel, prisoners, drugs,
• 28:21
  Speaker 1: and livestock because no private person has such duties under
• 28:25
  Speaker 1: state law. Notwithstanding this conceptual difficulty, the Supreme Court long
• 28:30
  Speaker 1: ago made clear that there is no exception from FTCA
• 28:34
  Speaker 1: liability solely because the particular tort arose from the performance
• 28:38
  Speaker 1: of uniquely governmental functions. As such, federal courts must look
• 28:43
  Speaker 1: for a private party analog even for quintessentially government functions. Significantly, however,
• 28:50
  Speaker 1: When analyzing private party analogs, federal courts cannot superimpose limitations
• 28:55
  Speaker 1: that state law affords its own state or municipal actors,
• 28:59
  Speaker 1: such as state law protections of sovereign immunity. To do
• 29:03
  Speaker 1: so would ignore the word private as used in Section
• 29:07
  Speaker 1: 1346B1 and Section 2674, C. U. S. v. Olson, 2005,
• 29:08
  Speaker 1: noting that the FTCA waives sovereign immunity from Under circumstances
• 29:18
  Speaker 1: where the United States, if a private person, not the
• 29:21
  Speaker 1: United States, if a state or municipal entity, would be liable. Accordingly,
• 29:26
  Speaker 1: in searching for private party analogs, federal courts must ignore
• 29:30
  Speaker 1: state law doctrines that afford a special role to state
• 29:33
  Speaker 1: or municipal actors. In this case, plaintiffs have alleged negligence
• 29:38
  Speaker 1: on the part of the FBI agents in New York, Florida,
• 29:41
  Speaker 1: and other unidentified states. In order to determine whether subject
• 29:46
  Speaker 1: matter jurisdiction exists, therefore, this court must determine whether the
• 29:50
  Speaker 1: common law of these states would impose tort liability upon
• 29:54
  Speaker 1: private persons under circumstances like those alleged in the FAC.
• 29:59
  Speaker 1: see Turner v. Turner, NUS 514 11th Circuit 2008, recognizing
• 30:05
  Speaker 1: that like circumstances need not be identical or same circumstances.
• 30:11
  Speaker 1: The court is considered but rejects plaintiff's argument that the
• 30:14
  Speaker 1: court should analyze the conduct of all FBI agents under
• 30:18
  Speaker 1: the common umbrella of Florida law. As stated, the 11th
• 30:21
  Speaker 1: Circuit has made clear that the law of the place
• 30:25
  Speaker 1: where the act or omission occurred, as used in the FTCA,
• 30:29
  Speaker 1: means the law of the state where the alleged tort occurred. Moreover,
• 30:33
  Speaker 1: the FTCA does not authorize suits based on the conduct
• 30:36
  Speaker 1: of an entire federal agency writ large. It only authorizes
• 30:40
  Speaker 1: suits based on the conduct of individual federal employees. See
• 30:44
  Speaker 1: Lee v. U.S. Arizona, September 18, 2020, noting that the
• 30:50
  Speaker 1: FTCA applies only to the negligent or wrongful act or
• 30:54
  Speaker 1: omission of any employee of the U.S. while acting within
• 30:57
  Speaker 1: the scope of his office or employment, not to generalize
• 31:01
  Speaker 1: theories of negligence asserted against the staff and employees of
• 31:05
  Speaker 1: federal institutions as a whole. Accordingly, the court must analyze
• 31:10
  Speaker 1: private party analogs on a state-by-state basis based on the
• 31:13
  Speaker 1: conduct of FBI employees in each state. 1. New York
• 31:18
  Speaker 1: and Florida The FAC alleges negligence on the part of
• 31:22
  Speaker 1: FBI agents in, among other places, New York and Florida.
• 31:26
  Speaker 1: As a general rule, the common law of both states
• 31:29
  Speaker 1: imposes no duty on the part of a private person
• 31:32
  Speaker 1: to prevent or control the criminal conduct of a third person.
• 31:36
  Speaker 1: See Purdy v. Public Administrators of Westchester County, 1988. Nevertheless,
• 31:44
  Speaker 1: the common law of both states also recognizes a version
• 31:48
  Speaker 1: of the voluntary undertaker or Good Samaritan doctrine as embodied
• 31:52
  Speaker 1: in the restatement second of torts, which provides as follows.
• 31:57
  Speaker 1: one who undertakes gratuitously or for consideration to render services
• 32:01
  Speaker 1: to another, which he should recognize as necessary for the
• 32:04
  Speaker 1: protection of a third person or his things, is subject
• 32:08
  Speaker 1: to liability to the third person for physical harm resulting
• 32:12
  Speaker 1: from his failure to exercise reasonable care to protect his
• 32:16
  Speaker 1: undertaking if a. his failure to exercise reasonable care, increases
• 32:21
  Speaker 1: the risk of such harm, or B, he has undertaken
• 32:24
  Speaker 1: to perform a duty owed by the other to the
• 32:27
  Speaker 1: third person, or C, the harm is suffered because of
• 32:30
  Speaker 1: reliance on the other or the third person upon the undertaking.
• 32:35
  Speaker 1: In support of common law duty, plaintiffs cite MSD 482F. SUPP
• 32:42
  Speaker 1: 3D at 1273, where Judge Dimitrioulis allowed a negligence claim
• 32:47
  Speaker 1: to proceed against FBI agents in in connection with their
• 32:50
  Speaker 1: failure to prevent a school shooting. In that case, Judge
• 32:53
  Speaker 1: Demetrioulas relied on Florida's voluntary undertaking doctrine to find a
• 32:58
  Speaker 1: private party analog for purposes of the FTCA. Judge Demetrioulas
• 33:03
  Speaker 1: found the doctrine applicable based on the unique facts alleged
• 33:07
  Speaker 1: in the MSD complaint. In particular, the MSD complaint alleged
• 33:11
  Speaker 1: that the FBI had established a public access line, or PAL,
• 33:15
  Speaker 1: to serve as a central repository and conduit for information
• 33:18
  Speaker 1: regarding potential threats to life, and to handle and relay
• 33:22
  Speaker 1: that information to FBI field agents and analysts, even to
• 33:26
  Speaker 1: the exclusion of other law enforcement entities that could have
• 33:29
  Speaker 1: handled the information. The MSD complaint alleged that several weeks
• 33:34
  Speaker 1: prior to the school shooting, a person close to the
• 33:36
  Speaker 1: shooter telephoned the PAL to report extremely urgent and highly
• 33:40
  Speaker 1: specific concerns about the shooter's behavior, including the fact that
• 33:44
  Speaker 1: he had the desire to kill people, that he was
• 33:47
  Speaker 1: fixated with ISIS, and had access to guns and ammunition,
• 33:52
  Speaker 1: and that he had the potential to become a school shooter.
• 33:54
  Speaker 1: Idea 1278. The complaint further alleged that an FBI employee
• 33:59
  Speaker 1: affirmatively assured the caller that the FBI would follow up
• 34:03
  Speaker 1: on that information provided. In reliance on this assurance, the
• 34:07
  Speaker 1: caller forewent contacting other law enforcement agencies and forewent contacting
• 34:12
  Speaker 1: the high school itself. The FBI thereafter failed to take
• 34:16
  Speaker 1: appropriate investigative steps in response to the call. Given that
• 34:20
  Speaker 1: the FBI undertook to create Powell, and that the FBI
• 34:24
  Speaker 1: employee made assurances to the caller, but failed to follow
• 34:26
  Speaker 1: through on those assurances, Judge Dimitrioulas found that the MSD
• 34:31
  Speaker 1: plaintiff stated a plausible negligence claim under the voluntary undertaker doctrine. Likewise,
• 34:38
  Speaker 1: Judge Dimitrioulas found that the FBI employee's own affirmative conduct
• 34:42
  Speaker 1: caused the caller to forego contact with other law enforcement,
• 34:45
  Speaker 1: thereby creating a foreseeable zone of risk. sufficient to give
• 34:49
  Speaker 1: rise to negligence claim under Florida's related zonerist doctrine. Applying
• 34:54
  Speaker 1: these standards in case law here, the court finds that
• 34:57
  Speaker 1: the FAC makes sufficient allegations accepted as true to allege
• 35:01
  Speaker 1: plausible private party analogs under both New York and Florida law.
• 35:06
  Speaker 1: As to New York law, plaintiffs allege that FBI agents
• 35:09
  Speaker 1: in New York voluntarily accepted Maria Farmer's complaints in 96,
• 35:14
  Speaker 1: thereby undertaking to help her. Plaintiffs further allege that that
• 35:18
  Speaker 1: FBI agents affirmatively told Farmer not to share the complaint
• 35:22
  Speaker 1: with anyone else, including other law enforcement agencies. As in
• 35:27
  Speaker 1: the MSD case, Farmer forewent contacting other law enforcement agencies,
• 35:32
  Speaker 1: believing FBI agents would exercise due care in their investigation.
• 35:36
  Speaker 1: Plaintiffs allege that FBI agents created a foreseeable zone of
• 35:40
  Speaker 1: risk to future Epstein victims, including themselves, by failing to
• 35:44
  Speaker 1: exercise due care in the investigation of Farmer's credible allegations
• 35:49
  Speaker 1: construing these allegations in the light most favorable to plaintiffs
• 35:53
  Speaker 1: the court finds that the allegations sufficient to survive dismissal
• 35:57
  Speaker 1: and state a plausible common law duty of care under
• 36:00
  Speaker 1: new york's voluntary undertaking and good samaritan doctrines as to
• 36:06
  Speaker 1: florida law the fac alleges that fbi agents in florida
• 36:09
  Speaker 1: voluntarily accepted a referral of the epstein case from the
• 36:12
  Speaker 1: palm beach police department in 2006 thereby undertaking to help
• 36:16
  Speaker 1: victims Plaintiff further alleges that the FBI agents closed their
• 36:21
  Speaker 1: investigation in 2007 by the way of the non-prosecution agreement.
• 36:25
  Speaker 1: Despite this, FBI agents thereafter sent numerous letters to Epstein
• 36:29
  Speaker 1: victims in October of 2007, January 2008, and May 2008,
• 36:35
  Speaker 1: claiming the case was currently under investigation. This representation was false,
• 36:40
  Speaker 1: and as the case had ended with the non-prosecution agreement,
• 36:44
  Speaker 1: By sending these letters, FBI agents affirmatively misled victims into
• 36:49
  Speaker 1: believing the investigation was still ongoing. As in the MSD case,
• 36:53
  Speaker 1: the recipients of the letters mistakenly believed the FBI was
• 36:56
  Speaker 1: doing something when in fact the FBI was doing nothing.
• 37:00
  Speaker 1: Plaintiffs allege the FBI agents created a foreseeable zone of
• 37:04
  Speaker 1: risk to future Epstein victims, including themselves, by misleading victims
• 37:08
  Speaker 1: and failing to exercise due care in the Florida investigation.
• 37:12
  Speaker 1: Construing these allegations in the light most favorable to plaintiffs,
• 37:16
  Speaker 1: the court finds the allegations sufficient to survive dismissal and
• 37:20
  Speaker 1: state a plausible common law duty of care under Florida's
• 37:24
  Speaker 1: voluntary undertaking of zone risk doctrines. The court continues to
• 37:29
  Speaker 1: express skepticism that plaintiffs can ultimately prove causation, a necessary
• 37:34
  Speaker 1: element to negligence claim under both New York and Florida law.
• 37:38
  Speaker 1: FBI agents say have no authority to pursue criminal prosecutions
• 37:42
  Speaker 1: or impose prison sentences on criminals. Only prosecutors and judges
• 37:47
  Speaker 1: can do that. Accordingly, even if FBI agents had taken
• 37:51
  Speaker 1: all of the investigative steps that plaintiffs believe they should
• 37:54
  Speaker 1: have taken, none of those steps would have guaranteed that
• 37:57
  Speaker 1: prosecutors would have brought criminal charges or that a judge
• 38:00
  Speaker 1: would have imposed a prison sentence upon Epstein before he
• 38:03
  Speaker 1: committed further crimes against plaintiffs. Nevertheless, New York and Florida
• 38:09
  Speaker 1: law generally reserves causation as an issue of fact for
• 38:13
  Speaker 1: a jury to decide. Noting that foreseeability and causation are
• 38:19
  Speaker 1: issues generally and more suitably entrusted to fact finder adjudication.
• 38:24
  Speaker 1: Stahl v. Metro Dade County, Florida, 3rd DCA 1983 Noting
• 38:30
  Speaker 1: proximate cause is generally for juries to decide using their
• 38:33
  Speaker 1: common sense upon appropriate instruction. The issue should rarely be
• 38:38
  Speaker 1: decided on summary judgment, let alone on a motion to dismiss.
• 38:42
  Speaker 1: As such, the court rejects this argument for dismissal. All right,
• 38:46
  Speaker 1: we're going to wrap up right here. And in the
• 38:48
  Speaker 1: next episode, we're going to pick up with two FBI
• 38:51
  Speaker 1: agents in unidentified states. All the information that goes with
• 38:56
  Speaker 1: this episode can be found in the description box. What's up, everyone?
• 39:00
  Speaker 1: And welcome to another episode of the Epstein Chronicles. In
• 39:04
  Speaker 1: this episode, we're going to pick up where we left
• 39:06
  Speaker 1: off with Judge Lieberwitz's report on the Epstein survivors lawsuit
• 39:11
  Speaker 1: filed against the FBI to FBI agents in unidentified states.
• 39:17
  Speaker 1: Plaintiffs also allege negligence on the part of FBI agents
• 39:21
  Speaker 1: in unidentified states, specifically agents mishandling of additional tips and
• 39:26
  Speaker 1: red flags from 96 to 2005. and agents mishandling of
• 39:31
  Speaker 1: plaintiff Christensen's complaint in 2005. Without knowing the states where
• 39:37
  Speaker 1: these alleged torts took place, the court cannot fully assess
• 39:40
  Speaker 1: the existence or nonexistence of private party analogs in those states. Nevertheless,
• 39:46
  Speaker 1: given that the undersigned recommends allowing the claims To proceed,
• 39:50
  Speaker 1: as to FBI agents in New York and Florida, the
• 39:53
  Speaker 1: undersigned recommends allowing the remaining claims to proceed as well.
• 39:57
  Speaker 1: The government may revisit this issue at summary judgment, if appropriate. C.
• 40:02
  Speaker 1: Statute of Limitations and Equitable Tolling The government next urges
• 40:07
  Speaker 1: dismissal based on the statute of limitations and plaintiff's failure
• 40:10
  Speaker 1: to allege facts to show entitlement to equitable tolling. Specifically,
• 40:15
  Speaker 1: the FTCA provides plaintiffs with a two-year time limit to
• 40:19
  Speaker 1: file an administrative claim with the appropriate federal agencies as follows.
• 40:24
  Speaker 1: Time for commencing action against the United States. B. A
• 40:28
  Speaker 1: tort claim against the U.S. shall be forever barred unless
• 40:31
  Speaker 1: it's presented in writing to the appropriate federal agency within
• 40:35
  Speaker 1: two years after such a claim accrues, or unless the
• 40:38
  Speaker 1: action is begun within six months after the date of
• 40:41
  Speaker 1: mailing by certified or registered mail. of notice of final
• 40:45
  Speaker 1: denial of the claim by the agency to which it
• 40:48
  Speaker 1: was presented. Here the FAC alleges that plaintiffs suffered injuries
• 40:54
  Speaker 1: at various times between 2007 and 2017. The government has
• 40:58
  Speaker 1: submitted a declaration attesting that plaintiffs failed to submit their
• 41:02
  Speaker 1: administrative claims to the appropriate agency until May 23rd and beyond,
• 41:07
  Speaker 1: well past the two-year deadline. Plaintiffs do not dispute the
• 41:10
  Speaker 1: accuracy of the submission dates. Instead, plaintiffs argue that their
• 41:15
  Speaker 1: claim should be deemed timely under the doctrine of equitable tolling.
• 41:20
  Speaker 1: The Supreme Court recognizes that equitable tolling applies to FTCA claims,
• 41:24
  Speaker 1: see U.S. v. Wong, 575, 2015. In the Eleventh Circuit,
• 41:30
  Speaker 1: equitable tolling is appropriate when a movement untimely files because
• 41:34
  Speaker 1: of extraordinary circumstances that are both beyond its control and unavoidable,
• 41:39
  Speaker 1: even with diligence. The diligence required for equitable tolling proposes
• 41:46
  Speaker 1: is reasonable diligence, not maximum feasible diligence. San Martin v. McNeil,
• 41:51
  Speaker 1: 11th Circuit, 2011. The 11th Circuit has described equitable tolling
• 41:56
  Speaker 1: as an extraordinary remedy to be applied sparingly. At the
• 41:59
  Speaker 1: motion to dismiss stage, a plaintiff must allege sufficient facts
• 42:03
  Speaker 1: to state a claim for equitable tolling that is plausible
• 42:07
  Speaker 1: on its face. Masones v. Estevez, 11th Circuit, August 23, 2021.
• 42:14
  Speaker 1: plaintiff's conclusory assertion of equitable tolling is insufficient. The complaint
• 42:19
  Speaker 1: must allege facts sufficient to support the contention that equitable
• 42:23
  Speaker 1: tolling should apply. Applying these standards here, the court finds
• 42:27
  Speaker 1: that plaintiffs have alleged sufficient facts, except it is true,
• 42:31
  Speaker 1: to support a plausible claim of equitable tolling. In particular,
• 42:35
  Speaker 1: the FAC alleges that plaintiffs failed to discover the facts
• 42:39
  Speaker 1: showing a casual link between their injuries and the FBI's
• 42:42
  Speaker 1: misconduct in part because critical information was willfully hidden from
• 42:47
  Speaker 1: the plaintiffs by the FBI for years. Plaintiffs allege that
• 42:51
  Speaker 1: the FBI's suppression of information was so persistent that Congress
• 42:55
  Speaker 1: enacted a law in 2025 to force the FBI to
• 42:58
  Speaker 1: disclose information, namely the Epstein Files Transparency Act. Plaintiffs also
• 43:04
  Speaker 1: allege they failed to discover a casual link to the
• 43:07
  Speaker 1: FBI's conduct until 2022, when they learned through a publicly
• 43:11
  Speaker 1: filed lawsuit that JPMorgan Chase and had reached out to
• 43:15
  Speaker 1: the federal government on numerous occasions between 2006 and 2008
• 43:19
  Speaker 1: and via numerous avenues regarding Epstein's transactions with the bank
• 43:24
  Speaker 1: and concern for sex trafficking. The court finds these allegations
• 43:27
  Speaker 1: sufficient to survive dismissal. The court rejects the government's counter-argument
• 43:32
  Speaker 1: that the FAC contains references to numerous news reports and
• 43:36
  Speaker 1: other public sources that would have alerted a reasonable person
• 43:40
  Speaker 1: to the FBI's misconduct much earlier today. then plaintiffs claim
• 43:44
  Speaker 1: date of discovery. The government argues that these publicly available sources,
• 43:49
  Speaker 1: cited in plaintiffs' own pleading, demonstrate that plaintiffs fail to
• 43:52
  Speaker 1: exercise the degree of due diligence necessary to support a
• 43:56
  Speaker 1: plausible claim of equitable tolling. The court disagrees. As the
• 44:01
  Speaker 1: Supreme Court has noted, equitable tolling involves fact-intensive disputes. To
• 44:06
  Speaker 1: be sure, the FAC contains a mixed bag of allegations,
• 44:09
  Speaker 1: some of which tend to support a claim that of
• 44:12
  Speaker 1: equitable tolling, and some of which do the opposite. At
• 44:16
  Speaker 1: this stage of the case, the court will not balance
• 44:19
  Speaker 1: the various allegations and determine which of them deserve the
• 44:22
  Speaker 1: most weight. Instead, the court finds the allegations sufficient at
• 44:27
  Speaker 1: this stage of the case. The court therefore rejects this
• 44:30
  Speaker 1: argument for dismissal. d. Failure to include some certain money
• 44:35
  Speaker 1: demands in the administrative claim. Finally, the government moves to
• 44:39
  Speaker 1: dismiss the claims of Jane Doe's 13, 21, and 29
• 44:43
  Speaker 1: for failure to exhaust administrative remedies in compliance with the FTCA,
• 44:48
  Speaker 1: specifically by failing to include a some certain demand for
• 44:51
  Speaker 1: money damages in their administrative claims. In particular, the FTCA
• 44:57
  Speaker 1: provides that no action may be instituted upon a claim
• 45:00
  Speaker 1: against the United States for money damages for injury unless
• 45:04
  Speaker 1: the claimant's shall have first presented the claim to the
• 45:07
  Speaker 1: appropriate federal agency and his claim shall have been finally
• 45:11
  Speaker 1: denied by the agency in writing and sent by certified
• 45:14
  Speaker 1: or registered mail. U.S. Code 18 Section 2675A The claim
• 45:20
  Speaker 1: must be presented in writing to the appropriate agency within
• 45:24
  Speaker 1: two years after such a claim accrues. U.S. Code 28
• 45:28
  Speaker 1: Section 2401B Pursuant to federal regulation, a claim is deemed
• 45:33
  Speaker 1: presented when the federal agency receives a claim in Standard
• 45:36
  Speaker 1: Form 95 or other written notification of the incident accompanied
• 45:41
  Speaker 1: by a claim for money damages and a sum certain
• 45:44
  Speaker 1: for injury, alleged to have occurred by reason of the incident.
• 45:48
  Speaker 1: The administrative exhaustion requirement functions as an important component for
• 45:52
  Speaker 1: the government's waiver of sovereign immunity as it gives agencies
• 45:56
  Speaker 1: an opportunity to settle suits before litigation commences, which in
• 46:00
  Speaker 1: turn can ease court congestion and avoid unnecessary litigation while
• 46:05
  Speaker 1: making it possible for the government to expedite the fair
• 46:07
  Speaker 1: settlement of tort claims asserted against the United States. Hernandez v. U.S.
• 46:14
  Speaker 1: 11th Circuit As to the requirement of some certain demand
• 46:18
  Speaker 1: for money damages, the 11th Circuit has adopted a lenient
• 46:22
  Speaker 1: approach as follows. The Circuit has taken a somewhat lenient
• 46:25
  Speaker 1: approach to the some certain requirement holding, for example, that
• 46:29
  Speaker 1: even where a claimant had not specifically stated the value
• 46:32
  Speaker 1: of the claim, Attaching medical bills and repair estimates to
• 46:35
  Speaker 1: the claim, notice could suffice. See Molinar v. U.S., 5th Circuit, 1975.
• 46:42
  Speaker 1: Discussing some certain requirement and indicating that it can only
• 46:46
  Speaker 1: be met by merely providing the agency with facts from
• 46:49
  Speaker 1: which it could estimate the value of the claim. At
• 46:52
  Speaker 1: a minimum, however... The administrative claim must either a. expressly
• 46:56
  Speaker 1: claim a sum certain or b. provide documentation which will
• 47:00
  Speaker 1: allow the agency to calculate or estimate the damages to
• 47:03
  Speaker 1: the claimant. Suarez v. U.S., 11th Circuit, 1994 If the
• 47:09
  Speaker 1: claimant fails to provide a sum certain within the claim,
• 47:12
  Speaker 1: the administrative claim fails to meet the statutory prerequisite to
• 47:16
  Speaker 1: maintaining a suit against the government and leaves the district
• 47:19
  Speaker 1: court without jurisdiction to hear the case. Turner 514 F. 3d.
• 47:26
  Speaker 1: Affirming dismissal of FTCA case where administrative claim form failed
• 47:31
  Speaker 1: to assert a some certain or attached documents to provide
• 47:34
  Speaker 1: information as to the amount of damages the individual plaintiff.
• 47:38
  Speaker 1: In this case, the government argues that Jane Doe's 13, 21,
• 47:42
  Speaker 1: and 29 failed to include a some certain demand for
• 47:45
  Speaker 1: money damages in their administrative claims. In support, the government
• 47:49
  Speaker 1: has provided the court with anonymous SF-95s for these Jane Does,
• 47:54
  Speaker 1: as well as a declaration from a person who works
• 47:57
  Speaker 1: in the FBI General Counsel's office. Because the government asked
• 48:01
  Speaker 1: the court to look beyond the four corners of the FAC,
• 48:04
  Speaker 1: the court interprets this argument as raising a factual, rather
• 48:08
  Speaker 1: than a facile, attack on the subject matter jurisdiction pursuant
• 48:12
  Speaker 1: to Rule 12b-1. At the hearing on this matter, the
• 48:15
  Speaker 1: government confirmed that the argument raises a factual attack on
• 48:19
  Speaker 1: subject matter jurisdiction. As noted, when a defendant raises a
• 48:23
  Speaker 1: factual attack on subject matter jurisdiction, a district court must
• 48:27
  Speaker 1: allow discovery before dismissing the case. To date, discovery in
• 48:30
  Speaker 1: the case has been stayed. Accordingly, the court rejects this
• 48:34
  Speaker 1: argument for dismissal. The undersigned recommendations that the district judge
• 48:39
  Speaker 1: exercising his discretion in the case allow a 90-day period
• 48:43
  Speaker 1: of jurisdictional discovery concerning the exhaustion of administrative remedies by
• 48:47
  Speaker 1: Jane Dose 13, 21, and 29. Once this discovery has
• 48:51
  Speaker 1: been completed, the government may renew this motion. The court
• 48:55
  Speaker 1: has considered but rejects plaintiff's argument that the government waived
• 48:58
  Speaker 1: the some certain argument by failing to raise it in
• 49:01
  Speaker 1: earlier motion to dismiss practice. As plaintiffs correctly point out,
• 49:06
  Speaker 1: Rule 12G2 provides that subject to certain exceptions, a party
• 49:11
  Speaker 1: that makes a motion under this rule must not make
• 49:14
  Speaker 1: another motion under this rule raising a defense or objection
• 49:17
  Speaker 1: that was available to a party but it from its
• 49:21
  Speaker 1: earlier motion. The court agrees that the some certain argument
• 49:24
  Speaker 1: was available to the government but omitted from its earlier motion.
• 49:28
  Speaker 1: The court nevertheless rejects this argument because it overlooks one
• 49:32
  Speaker 1: of the exceptions set forth in the text of the rule. Specifically,
• 49:36
  Speaker 1: Rule 12G2 applies... except as provided in Rule 12H. 2 or 3.
• 49:43
  Speaker 1: Rule 12H. 3 in turn provides as follows. 3. Lack of
• 49:48
  Speaker 1: Subject Matter Jurisdiction If the court determines at any time
• 49:52
  Speaker 1: that it lacks subject matter jurisdiction, the court must dismiss
• 49:55
  Speaker 1: the action. In other words, the defense of lack of
• 49:58
  Speaker 1: subject matter jurisdiction cannot be waived. The issue of administrative
• 50:03
  Speaker 1: exhaustion under the FTCA goes to this court's subject matter jurisdiction.
• 50:07
  Speaker 1: As such, the government must did not waive the some
• 50:10
  Speaker 1: certain argument by failing to raise it in earlier motion practice.
• 50:14
  Speaker 1: The court therefore rejects plaintiff's waiver argument. Five, recommendation notice
• 50:20
  Speaker 1: of right to object. For the reason stated above, the
• 50:23
  Speaker 1: undersigned recommends that the motion to dismiss be denied as follows. One,
• 50:28
  Speaker 1: the district judge should lift the current stay order and
• 50:30
  Speaker 1: allow a 90-day period of discovery on two jurisdictional issues. A,
• 50:35
  Speaker 1: the existence and content of any mandatory established policies, protocols,
• 50:40
  Speaker 1: and procedures, whether written or otherwise, governing the FBI's conduct
• 50:44
  Speaker 1: in assessing or handling tips, reports, and complaints of sexual abuse,
• 50:49
  Speaker 1: child sexual abuse, and or child sexual abuse material, and
• 50:53
  Speaker 1: be the exhaustion of administrative remedies by Jane Doe's 1321
• 50:58
  Speaker 1: and 29. At the conclusion of this limited discovery, the
• 51:02
  Speaker 1: government should be permitted to renew this motion seeking dismissal
• 51:06
  Speaker 1: based on the discretionary function exception and the alleged failure
• 51:09
  Speaker 1: to exhaust administrative remedies by Jane Doe's 13, 21, and 29.
• 51:15
  Speaker 1: The remainder of this motion should be denied. The parties
• 51:19
  Speaker 1: shall have 14 days from the date of being served
• 51:22
  Speaker 1: with a copy of this report and recommendation within which
• 51:25
  Speaker 1: to file written objections, if any, with the district judge.
• 51:29
  Speaker 1: Failure to file objections timely shall bar the parties from
• 51:33
  Speaker 1: a de novo determination by the district judge of an
• 51:37
  Speaker 1: issue covered in the report and recommendation and shall bar
• 51:41
  Speaker 1: the parties from attacking on appeal unobjected to factual and
• 51:45
  Speaker 1: legal conclusions contained in this report and recommendation. If a
• 51:49
  Speaker 1: party does not intend to object to this report and recommendation,
• 51:53
  Speaker 1: the party shall file a notice to that effect within
• 51:56
  Speaker 1: five days. Respectfully submitted in chambers at West Palm Beach
• 52:01
  Speaker 1: in the Southern District of Florida this 18th day of August, 2026.
• 52:07
  Speaker 1: And this was signed by Ryan M. McCabe, U.S. Magistrate Judge.
• 52:12
  Speaker 1: All the information that goes with this episode can be
• 52:14
  Speaker 1: found in the description box.