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The DOJ And Their Motion To Dismiss The Epstein Survivors 4th Amended Complaint (Part 4) (11/9/26) · Beyond The Horizon

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  Speaker 1: What's up everyone and welcome to another episode of the
• 0:03
  Speaker 1: Epstein Chronicles. In this episode, we're picking back up where
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  Speaker 1: we left off with the DOJ and their motion to
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  Speaker 1: dismiss the lawsuit filed against them by the survivors. I.
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  Speaker 1: There are no mandatory statutes, regulations, or directives that constrain
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  Speaker 1: the FBI's discretion in the conduct at issue. The first
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  Speaker 1: part of Gobert Test here is Satisfied. as plaintiffs do
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  Speaker 1: not identify any specific mandatory statutes, regulations, or directives or
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  Speaker 1: policies that constrain the FBI's discretion on how or whether
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  Speaker 1: it conducted a criminal investigation into Epstein. See FAC 5-9-163-257,
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  Speaker 1: Allegations of the Non-Discretionary Obligations and Duties Related to FBI
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  Speaker 1: Manual of Investigative Operations and Guidelines, and the 1995 Innocent
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  Speaker 1: Images national initiative. Notably, plaintiffs do not indicate any language
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  Speaker 1: from the IINI that mandates the FBI to act. Similarly,
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  Speaker 1: plaintiffs cite two different MIOGs, but fail to recognize that
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  Speaker 1: such MIOGs are couched in permissive language, and therefore cannot
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  Speaker 1: overcome the DFE. C. Joyner, 1st United States, 5th Circuit, 2020.
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  Speaker 1: Finding that plaintiff failed the first step of Goldberg test,
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  Speaker 1: by failing to identify a non-discretionary duty violated by FBI,
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  Speaker 1: despite referencing Attorney General's Guidelines on FBI Undercover Operations, Undercover
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  Speaker 1: and Sensitive Operations Unit, Attorney General Guidelines on FBI Undercover Operations, VI.A.2-1992,
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  Speaker 1: and FBI Domestic Investigations and Operations Guide, Barbarary v. United States, Pennsylvania, 2017.
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  Speaker 1: Barbereri also contends that the FBI guidelines prescribe a course
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  Speaker 1: of conduct that FBI agents must follow. Those guidelines, however,
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  Speaker 1: are not mandatory regarding the course of action an agent
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  Speaker 1: must follow in interviewing a witness or building cases. The
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  Speaker 1: relevant FBI Manual of Internal Operating Guidelines states, Handbook and
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  Speaker 1: manual were not mandatory and therefore the FBI agents were
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  Speaker 1: granted discretionary in planning and carrying out the operation that
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  Speaker 1: led to the decedent's demise. Plaintiffs do not identify any
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  Speaker 1: mandatory policy because they cannot. Absent such a mandatory directive,
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  Speaker 1: the FBI maintains full discretion in how to conduct its investigations.
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  Speaker 1: This extends from the inception of an investigation, i.e. whether
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  Speaker 1: a follow-up on a tip from the public, through its middle, i.e.
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  Speaker 1: determining which leads to pursue, and devote investigatory resources all
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  Speaker 1: the way to its conclusion, i.e. arresting a suspect. Further
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  Speaker 1: plaintiff's assertion that discovery is required to determine whether the
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  Speaker 1: FBI violated any other relevant policy or procedure runs contrary
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  Speaker 1: to Rule 8. It's the plaintiff's burden to plead an
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  Speaker 1: exception to the DFE. Cease Alvarez v. U.S., Florida, 2016.
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  Speaker 1: Yet while the court will construe all factual inferences in
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  Speaker 1: plaintiff's favor... In the face of a factual challenge to
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  Speaker 1: subject matter jurisdiction, the burden is on the plaintiff to
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  Speaker 1: prove that jurisdiction exists. Thus, plaintiffs must show that the
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  Speaker 1: exception invoked by the government do not apply. CID explaining
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  Speaker 1: that plaintiff bore the burden of proving that the discretionary
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  Speaker 1: function exception did not apply. Stated otherwise, it's plaintiff's burden
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  Speaker 1: to allege facts falling outside the exceptions. courts uniformly agree
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  Speaker 1: that law enforcement must be afforded broad discretion on whether
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  Speaker 1: and how to investigate and follow up on information they
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  Speaker 1: receive from the public. See Thacker v. U.S., Florida, 2006,
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  Speaker 1: dismissing FTCA claim where a plaintiff failed to identify a
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  Speaker 1: specific and binding directive that addresses the investigation of complaints
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  Speaker 1: of perjury or the use of false information by local
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  Speaker 1: law enforcement and prosecutors in state criminal prosecutions and requires
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  Speaker 1: FBI or DOJ employees to investigate such complaints. See Manchatta v. Reardon,
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  Speaker 1: February 1, 2024. Federal law enforcement agency decision to conduct
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  Speaker 1: an investigation in response to reports of criminal activity is
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  Speaker 1: a discretionary function that is not cognizable under the FTCA.
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  Speaker 1: Any other result would seriously handicap the FBI and other
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  Speaker 1: federal law enforcement agencies in carrying out the important duties
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  Speaker 1: assigned to them by Congress. The FBI employees who received
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  Speaker 1: tips from the public were not required to take mandatory
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  Speaker 1: or specific steps in their assessment of those tips. FBI
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  Speaker 1: personnel retained discretion to determine whether a tip indicates a
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  Speaker 1: credible threat that's appropriate for FBI involvement. The decisions of
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  Speaker 1: how to analyze and assess the information gathered and whether
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  Speaker 1: to forward the tips to a field office with discretion,
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  Speaker 1: without which the FBI could not perform its investigative and
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  Speaker 1: law enforcement functions. Beyond the decision on how or whether
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  Speaker 1: to follow up on tips are a myriad of subsequent
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  Speaker 1: investigatory decisions that FBI agents in the relevant field offices
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  Speaker 1: would have made, each of which also demand the exercise
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  Speaker 1: of discretion throughout. FBI agents like detectives and police officers
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  Speaker 1: must evaluate whether the information requires immediate action, deferred action,
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  Speaker 1: or no action at all. The FBI field office would
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  Speaker 1: have determined for itself whether any specific fact revealed a
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  Speaker 1: credible threat that was appropriate for FBI involvement and whether
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  Speaker 1: to take any action. If FBI agents had decided to act,
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  Speaker 1: they would have the discretion to decide how to act,
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  Speaker 1: including the ultimate law enforcement decision regarding what steps to
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  Speaker 1: take to prevent potential criminal conduct. In exercising that discretion,
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  Speaker 1: Considerations such as feasibility of interviewing the complainant or the
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  Speaker 1: subject of the complaint, how to identify and locate the subject,
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  Speaker 1: the use and availability of potential witnesses, the value of
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  Speaker 1: any documentary evidence, whether the evidence was consistent or contradictory,
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  Speaker 1: and whether to refer the matter for possible prosecution inevitably
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  Speaker 1: comes into play. And even if the FBI had failed
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  Speaker 1: to take some prelim action, such as ignoring a tip,
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  Speaker 1: in 1996 or 2005, the FBI ultimately would have still
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  Speaker 1: had discretion in all remaining steps of its investigatory decision
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  Speaker 1: tree to federal law enforcement officers' decision on whether and
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  Speaker 1: how to conduct criminal investigations or grounded in public policy.
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  Speaker 1: If no mandatory directive controls the governmental conduct at issue,
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  Speaker 1: the second part of the discretionary function analysis requires the
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  Speaker 1: court to determine whether the discretion involved in the governmental
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  Speaker 1: act is the kind that the discretionary function was designed
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  Speaker 1: to shield. Gobert, 499. The FBI's discretionary decisions on how
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  Speaker 1: to conduct a criminal investigation are grounded in public policy
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  Speaker 1: and thus protected from hindsight review. See Kelly v. United States,
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  Speaker 1: 1st Circuit, 91. Finding that the decision whether or not
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  Speaker 1: to investigate was at the core of law enforcement activity
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  Speaker 1: and involved the type of decision-making that Section 2680A was
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  Speaker 1: designed to protect. holding that the decision to allocate limited
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  Speaker 1: governmental resources to investigate a reported crime is a discretionary function,
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  Speaker 1: and noting that the federal government's decision concerning enforcement of
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  Speaker 1: its criminal statutes comprise a part of its pursuit of
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  Speaker 1: national policy. When the FBI analyzes which matters to undertake,
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  Speaker 1: it engages in a complex balancing act between the allocation
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  Speaker 1: of limited investigatory resources, the gravity of the alleged offenses,
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  Speaker 1: and the credibility of the allegations. among many other considerations. Indeed,
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  Speaker 1: the FBI is not required to investigate every field complaint. Here,
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  Speaker 1: how the FBI received information from the public, how it
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  Speaker 1: evaluated the information received, and how it responded to the
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  Speaker 1: information via allocating resources and personnel were grounded in public policy.
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  Speaker 1: The second part of the Gobert test is also met
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  Speaker 1: here because decisions of whether to investigate an individual are
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  Speaker 1: at the core of law enforcement activity. that the discretionary
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  Speaker 1: function exception was designed to safeguard. After all, the ability
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  Speaker 1: of an investigator to choose the way in which an
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  Speaker 1: investigation will proceed is undoubtedly grounded in consideration of public policy.
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  Speaker 1: See Sabo v. U.S., 9th Circuit, 1996. Investigations clearly require
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  Speaker 1: investigative officers to consider relevant political and social circumstances in
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  Speaker 1: making decisions about the nature and scope of a criminal investigation. Moreover,
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  Speaker 1: to the extent plaintiffs seek to predicate liability on the
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  Speaker 1: assumption that had the FBI followed up on the tips,
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  Speaker 1: then the FBI would have prevented Epstein from acting, such
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  Speaker 1: a claim falls within the discretionary function exception because it
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  Speaker 1: challenges policy-based decisions on whether and how to enforce statutes
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  Speaker 1: authorizing the FBI to investigate potential crimes. In sum, the
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  Speaker 1: second prong of Gobert applies. Because both prongs of the
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  Speaker 1: discretionary function exception are met here, the United States has
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  Speaker 1: not waived its sovereign immunity over plaintiff's negligence claim, warranting
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  Speaker 1: its dismissal. C. Prosecutorial decisions are protected by discretionary function exception.
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  Speaker 1: An additional flaw in the conclusory allegations of the FAC
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  Speaker 1: is its premise that an FBI investigation would have taken
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  Speaker 1: Epstein off the streets. and prevented further harm. In addition
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  Speaker 1: to ignoring, an intensive FBI investigation did take place. The
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  Speaker 1: causation premise overlooks that only a prosecutor's decision to file
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  Speaker 1: charges can potentially get a criminal off the streets, a
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  Speaker 1: decision which is inherently discretionary. An even more clearly established
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  Speaker 1: discretionary function of the government is the decision whether or
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  Speaker 1: not to prosecute. Broadly defined, the term prosecutorial discretion refers
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  Speaker 1: to the soup-to-nuts entirety of a prosecutor's power to choose
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  Speaker 1: from the options available in a criminal case, such as
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  Speaker 1: filing charges, prosecuting, not prosecuting, plea bargaining, and recommending a
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  Speaker 1: sentence to the court. The 11th Circuit has already examined
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  Speaker 1: the conduct of the Department of Justice related to the
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  Speaker 1: 2007 non-prosecution agreement with Epstein relied upon by the FAC.
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  Speaker 1: While the 11th Circuit was strongly critical of the actions
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  Speaker 1: of the Department of Justice in its decision not to
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  Speaker 1: prosecute Epstein, it found that judicial review of a prosecutor's
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  Speaker 1: decision whether to prosecute is the very quintessence of an
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  Speaker 1: impairment of prosecutorial discretion. The court decided that the conduct
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  Speaker 1: of the government was within prosecutorial discretion and therefore the
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  Speaker 1: case could not move forward. Plaintiff's premise of causation runs
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  Speaker 1: directly into the constitutionality vested discretion within the U.S. Attorney's
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  Speaker 1: Office whether to charge criminal conduct or not. 3. The
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  Speaker 1: discretionary function exception is properly before the court at the
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  Speaker 1: motion to dismiss stage. While the defendant recognizes that this
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  Speaker 1: court previously held that the assertion of the DFE was premature,
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  Speaker 1: the defendant requests court conduct further review based on the
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  Speaker 1: specific facts alleged in the FAC under the scrutiny of
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  Speaker 1: relevant case law. First, in their briefing defending the third
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  Speaker 1: amended complaint, plaintiffs relied on Douglas v. U.S. for contention
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  Speaker 1: that the DFE should not be applied at the motion
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  Speaker 1: to dismiss stage. However, Douglas involved facts much different than
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  Speaker 1: those in this case. For example, the government's DFE challenge
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  Speaker 1: in Douglas was based on a factual question such as
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  Speaker 1: whether plaintiff's pay grade was correct, who can set that grade,
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  Speaker 1: and the court found the record showed the BOP regulation
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  Speaker 1: related to plaintiff's pay allowed no discretion. The plaintiff in
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  Speaker 1: Douglas at the MTD stage was able to point to
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  Speaker 1: a specific non-discretionary regulation that defeated the discretionary function exception.
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  Speaker 1: The plaintiffs here cannot do the same. Rather, they point
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  Speaker 1: to MIOGs and DIOGs, which have been held to be
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  Speaker 1: couched with permissive language and therefore discretionary. Further, the government
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  Speaker 1: here is not making a DFE challenge based on factual contentions,
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  Speaker 1: but one of law. The court lacks jurisdiction over plaintiffs'
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  Speaker 1: claims because plaintiffs have pointed to no mandatory policy of
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  Speaker 1: the government requiring the FBI to investigate or the DOJ
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  Speaker 1: to prosecute. The court pointed to Judge... Demetriolis' decision in
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  Speaker 1: Marjory Stoneman Douglas in finding that consideration of the DFE
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  Speaker 1: at the MTD stage for the TAC was premature. However,
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  Speaker 1: the government points out that the denial of the DFE
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  Speaker 1: argument at the MTD stage in Marjory Stoneman Douglas was
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  Speaker 1: a sanction on the government. Finally, to the extent the
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  Speaker 1: court noted that all but one of the cases cited
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  Speaker 1: by the government in its MTD, the TAC, were decided pre-Douglas.
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  Speaker 1: The government provides further support for its contention that dismissal
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  Speaker 1: based on DFE at the MTD stage is appropriate. 3.
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  Speaker 1: Several plaintiffs failed to present a sum certain as required
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  Speaker 1: by the FCTA. A claim shall be deemed to have
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  Speaker 1: been presented when a federal agency receives from a claimant
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  Speaker 1: an executed Standard Form 95 or other written notification of
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  Speaker 1: an incident accompanied by a claim for money damages in
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  Speaker 1: a sum certain. Where the sum certain is omitted, the
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  Speaker 1: administrative claim fails to meet the statutory prerequisite to maintaining
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  Speaker 1: a suit against the government and leaves the district court
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  Speaker 1: without jurisdiction to hear the case. Here, three of the
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  Speaker 1: Jane Doe plaintiffs, Jane Doe 13, 21, and 29, failed
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  Speaker 1: to assert a sum certain on the administrative claim forms.
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  Speaker 1: See Declaration of Deborah A. Edwards, attached as Exhibit 1.
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  Speaker 1: Without a sum certain, these plaintiffs failed to present a
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  Speaker 1: valid administrative claim. and they must be dismissed from the
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  Speaker 1: action for failing to properly exhaust administrative remedies. Conclusion. The
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  Speaker 1: defendant respectfully requests that the court dismiss this case in
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  Speaker 1: its entirety without further leave to amend, as further amendment
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  Speaker 1: would be futile. Plaintiffs have continuously failed to meet the
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  Speaker 1: pleading requirements of Rule 8, failed to properly assert subject
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  Speaker 1: matter jurisdiction, and failed to state a claim upon which
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  Speaker 1: relief can be granted. As such, a dismissal is warranted.
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  Speaker 1: Request for hearings. Pursuant to Local Rule 7.1b, defendant respectfully
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  Speaker 1: requests a hearing on its motion to dismiss. The defendant
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  Speaker 1: believes the hearing would help clarify the issues and give
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  Speaker 1: the court the opportunity to ask any questions necessary for
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  Speaker 1: resolution of the defendant's motion. The defendant anticipates one hour
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  Speaker 1: would be needed for such a hearing. This document was
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  Speaker 1: signed by Kelsey Romero and it was dated June 4th, 2026.
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  Speaker 1: All the information that goes with this episode can be
• 15:33
  Speaker 1: found in the description box.