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The Report And Recommendation To Allow The Survivor Suit Against The FBI To Proceed (Part 2) (8/23/26) · The Vault: The Epstein Files

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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 up where we
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  Speaker 1: left off with Judge Lebowitz and his memorandum on the
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  Speaker 1: Epstein Survivor's lawsuit filed against the FBI two legal standard.
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  Speaker 1: By way of this motion, the government seeks dismissal of
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  Speaker 1: the FAC pursuantal Rule twelve B one and twelve B
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  Speaker 1: six of the Federal Rules of Civil Procedure. As to
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  Speaker 1: Rule twelve B one, the government argues that the case
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  Speaker 1: must be dismissed for the lack of a subject matter
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  Speaker 1: jurisdiction because the FTCA does not waive sovereign immunity from
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  Speaker 1: the claims alleged in the FAC. As the Eleventh Circuit
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  Speaker 1: Court has recognized, Rule twelve B one allows for two
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  Speaker 1: types of attacks on subject matter jurisdiction, fascil attacks and
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  Speaker 1: factual attacks Lawrence First Dunbar nine, nineteen f Dot two
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  Speaker 1: D fifteen twenty five, fifteen twenty nine, Eleventh Circuit, nineteen ninety.
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  Speaker 1: When a defendant makes a fascile attack, a court must
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  Speaker 1: look and see if the plaintiff has sufficiently alleged the
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  Speaker 1: basis of subject matter jurisdiction, and the allegations in his
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  Speaker 1: complaint or taken is true for the purposes of the motion.
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  Speaker 1: When a defendant raises a factual attack, the parties may
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  Speaker 1: offer extrinsic evidence, at which point the district court must
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  Speaker 1: weigh the evidence and satisfy itself as the existence of
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  Speaker 1: its power to hear the case. Moreover, when a defendant
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  Speaker 1: makes a factual attack, a district court cannot dismiss the
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  Speaker 1: complaint without first affording the plaintiff an opportunity for discovery.
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  Speaker 1: As to Rule twelve B six, the government argues that
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  Speaker 1: even if the subject matter jurisdiction exists, the fac nevertheless
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  Speaker 1: fails to state claims upon which relief can be granted.
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  Speaker 1: In evaluating Rule twelve B six motion, a court must
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  Speaker 1: accept the plaintiff's allegations as true and construe them in
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  Speaker 1: the light most favorable to the plaintiff. Although rule eight
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  Speaker 1: A two require there is only a shortened plain statement
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  Speaker 1: of the claim showing that the pleader is entitled to relief,
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  Speaker 1: a mere formulaic recitation of the elements of a cause
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  Speaker 1: of action will not do. Instead, a complaint must contain
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  Speaker 1: sufficient factual matter except it is true to state a
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  Speaker 1: claim to relief that is plausible on its face ashcrav
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  Speaker 1: for a zick ball, a claim has fascile plausibility when
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  Speaker 1: the plaintiff pleads factual content and allows the court to
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  Speaker 1: draw the reasonable inference that the defendant is liable for
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  Speaker 1: the misconduct alleged. Three discussion. The government raises for arguments
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  Speaker 1: in support of dismissal, which the Court will address in
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  Speaker 1: logical order below. For the sake of the completeness and
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  Speaker 1: for the benefit of the district judge, the Court makes
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  Speaker 1: recommendations on all arguments raised by the parties, even where
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  Speaker 1: a given recommendation may moot another argument a discretionary function exception.
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  Speaker 1: The government, for a st urges dismissal based on the
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  Speaker 1: discretionary function exception. By way of the FTCA, the government
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  Speaker 1: agrees to waive its sovereign immunity for limited categories of
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  Speaker 1: cases mada verse am First, United States eleven Circuit twenty thirteen.
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  Speaker 1: Because the FTCA operates as a waiver of sovereign immunity,
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  Speaker 1: the statute must be strictly construed in favor of the
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  Speaker 1: United States and not enlarged beyond the language of the statute.
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  Speaker 1: Requires if a claim falls outside the scope of the FTCA,
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  Speaker 1: a district court lacks subject matter jurisdiction, and the case
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  Speaker 1: must be dismissed IDEA twelve thirty four finding that the
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  Speaker 1: government sovereign immunity remains intact for claims outside of the
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  Speaker 1: FTCA and that no subject matter jurisdiction exists over such claims. Here,
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  Speaker 1: the government makes a fascile attack on subject matter jurisdiction,
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  Speaker 1: relying on discretionary function exception, which provides as follows the
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  Speaker 1: provisions of this Chapter in section thirteen forty six B
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  Speaker 1: of the Title, shall not apply to a any claim
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  Speaker 1: based upon an act or omission of an employee of
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  Speaker 1: the government exercising due care in the execution of a
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  Speaker 1: statute or regulation, whether or not such statute or regulation
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  Speaker 1: be valid, or based upon the exercise or performance or
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  Speaker 1: failure to exercise or perform a discretionary function or duty
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  Speaker 1: on the part of the federal agency or an employee
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  Speaker 1: of the government, whether or not the discretion involved be
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  Speaker 1: abused us CO. Twenty eight, Section twenty six eighty. This
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  Speaker 1: exception marks the boundary between Congress's willingness to impose towart
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  Speaker 1: liability upon the United States, and its desire to protect
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  Speaker 1: certain governmental activities from exposure to suit by private individuals.
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  Speaker 1: In applying the discretionary function exception, a court must first
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  Speaker 1: determine exactly what conduct is that issue AW three versus
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  Speaker 1: United States eleven Circuit in nineteen ninety three. Here, the
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  Speaker 1: conduct that issue involves the following the mishandling of Maria
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  Speaker 1: Farmer's complaint to FBI agents in New York ninety six,
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  Speaker 1: including the taking of no action in response to the complaint.
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  Speaker 1: The mishandling of additional tips and red flags by FBI
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  Speaker 1: agents in unidentified states from ninety six to two thousand
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  Speaker 1: and five, including the failure to act upon and investigate
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  Speaker 1: those complaints and tips, and the failure to comply with
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  Speaker 1: mandatory protocols and guidelines. The mishandling of Plaintiff Christiansen's complaint
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  Speaker 1: to the FBI agents in an unidentified state in two
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  Speaker 1: thousand and five, including the failure to interview Plaintiff Christensen
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  Speaker 1: until fifteen years later. The mishandling of a referral from
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  Speaker 1: the Pond Beach Police Department FBI agents in Florida in
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  Speaker 1: two thousand and six, including the failure to interview all
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  Speaker 1: victims and witnesses, and to secure all possible evidence to
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  Speaker 1: corroborate victim statements, all of which resulted in a federal
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  Speaker 1: non prosecution agreement that allowed Epstein to plead guilty to
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  Speaker 1: stay charges and serve only thirteen months in stay jail
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  Speaker 1: with daily work release, rather than face more severe charges
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  Speaker 1: and consequences the failure of FBI agents to prevent Epstein
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  Speaker 1: from committing further crimes. Once the court has identified the
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  Speaker 1: exact conduct that issue, a two step test determines whether
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  Speaker 1: the discretionary function exception applies. One whether the conduct that
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  Speaker 1: issue involves an element of judgment or choice by the
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  Speaker 1: federal employee, and two whether that judgment is of the
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  Speaker 1: kind that discretionary function exception was designed to shield. Berkowitz first,
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  Speaker 1: United States, nineteen eighty eight of significance here, the discretionary
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  Speaker 1: function exception does not apply where federal employees fail to
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  Speaker 1: follow a mandatory, non discretionary policy or procedure. See Achron
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  Speaker 1: versus US, Eleventh Circuit ninety seven, noting that conduct does
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  Speaker 1: not involve an element of judgment or choice and thus
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  Speaker 1: is not discretionary. If a federal statute, regulation or policy
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  Speaker 1: specifically prescribes the course of action for an employee to
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  Speaker 1: follow because as the employee has no rightful option but
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  Speaker 1: to adhere to the directive. In this case, plaintiffs argue
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  Speaker 1: that the discretionary function exception does not apply because FBI
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  Speaker 1: agents failed to follow certain mandatory, non discretionary policies and
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  Speaker 1: procedures set forth in the FBI Manual and the FBI
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  Speaker 1: Manual of Investigative Operations and Guidelines concerning the Investigation of
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  Speaker 1: Child Sexual Abuse and see SAM cases, including the following
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  Speaker 1: failure to conduct a preliminary inquiry and investigation as required
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  Speaker 1: by the MIOG, Failure to interview the subject of the
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  Speaker 1: investigation EPSTEIN as required by the MIOG, Failure to draft
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  Speaker 1: an FD seventy one form as required by the MIOG
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  Speaker 1: in response to a report of child pornography, Failure to
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  Speaker 1: interview the complaintant for each allegation of child's sexual abuse,
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  Speaker 1: and failure to secure a signed statement from each victim
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  Speaker 1: as required by the FBI manual. Failure to secure all
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  Speaker 1: possible evidence to corroborate the statement of the victim as
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  Speaker 1: required by the FBI Manual, Failure to obtain names with
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  Speaker 1: aliases description, brief personal histories, reputation, marital status, and identification
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  Speaker 1: records of subject in victims as required by the FBI manual.
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  Speaker 1: The Court expresses skepticism as to whether these policies and
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  Speaker 1: procedures remove this case from the discretionary function exception. The
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  Speaker 1: overwhelming consensus of federal case law establishes that criminal law
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  Speaker 1: enforcement decisions, investigative and prosecutorial alike, are discretionary in nature
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  Speaker 1: and therefore, by congressional mandate, immune from judicial review mesa
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  Speaker 1: versus US nineteen ninety seven. In the Court's view, law
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  Speaker 1: enforcement investigations remain discretionary exercises, regardless of the prelimbed steps
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  Speaker 1: that a particular agency might require its field agents to follow.
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  Speaker 1: This is because law enforcement agents retain discretion at all
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  Speaker 1: times to weigh and evaluate the evidence they recover and
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  Speaker 1: make decisions going forward in the investigation. Put differently, even
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  Speaker 1: if FBI agents had followed all of the policies and
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  Speaker 1: procedures cited by plaintiffs, the ultimate decision to assess the
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  Speaker 1: credibility of the evidence recovered would have remained within the
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  Speaker 1: discretion of the agents who gathered the evidence. As the
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  Speaker 1: Ninth Circuit observed, 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. They have to make judgments
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  Speaker 1: about how the potential for future criminal activity fits the
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  Speaker 1: agency's mission and enforcement priorities. Indeed, agents may disagree among
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  Speaker 1: themselves about the significance or credibility of information they receive.
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  Speaker 1: More to the point, plaintiffs brought this suit based on
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  Speaker 1: the failure of FBI agents to prevent Epstein from committing
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  Speaker 1: further crimes have not alleged the existence of any mandatory,
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  Speaker 1: non discretionary policies or procedures that would have required FBI
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  Speaker 1: agents to arrest Epstein or to prioritize this case over
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  Speaker 1: other serious cases. Likewise, plaintiffs have not alleged the existence
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  Speaker 1: of any mandatory, non discretionary policy or procedure that would
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  Speaker 1: have required FBI agents to initiate criminal charges against Epstein
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  Speaker 1: or recommend that state or federal prosecutors do. These types
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  Speaker 1: of decisions go to the core of law enforcement discretion.
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  Speaker 1: See Martinez vs. Us DDC two thousand and eight. The
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  Speaker 1: decision to allocate limited governmental resources to investigate a reported crime,
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  Speaker 1: like the decision to allocate limited resources to prosecute a
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  Speaker 1: crime is a discretionary function. Nevertheless, the undersigned recommends that
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  Speaker 1: the District Judge defer resolution of this issue until after
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  Speaker 1: plaintiffs have had an opportunity for limited jurisdictional discovery. Judge
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  Speaker 1: Demetrialis faced a similar issue in Marjorie Stoneman Douglas High
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  Speaker 1: School Shooting OKASE, involving the school shooting of Marjorie Stoneman
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  Speaker 1: Douglas High School. In that case, the government raised the
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  Speaker 1: discretionary function exception in response to FTCA claims brought against
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  Speaker 1: FBI agents concerning their response to tips regarding a potential
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  Speaker 1: school shooting. Before considering the issue on the merits, Judge
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  Speaker 1: Demetriolis allowed jurisdictional discovery regarding the existence and content of
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  Speaker 1: any mandatory, established policy, protocol and procedure, whether written or otherwise,
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  Speaker 1: governing the FBI's conduct and assessing or handling tips regarding
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  Speaker 1: potential threats to life, active shooters, mass shootings, terrorism threats,
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  Speaker 1: and or school shootings. In this case, the district judge
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  Speaker 1: likewise opined, in response to earlier motion practice, that this
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  Speaker 1: case should not be dismissed on discretionary function grounds. Without
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  Speaker 1: first affording plaintiffs an opportunity for discovery. The Court makes
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  Speaker 1: this recommendation based on the unique facts of the case,
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  Speaker 1: given that the government raised the discretionary function exception by
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  Speaker 1: way of facile attack on subject matter jurisdiction. This recommendation
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  Speaker 1: marks an exception to the general rule. In contrast to
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  Speaker 1: the factual attacks, plaintiff have no per se right to
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  Speaker 1: discovery before dismissal can be ordered in response to a
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  Speaker 1: facile attack on subject matter jurisdiction. See Macklmurray first the
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  Speaker 1: Government of Richmond City, eleventh Circuit two thousand and seven,
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  Speaker 1: distinguishing between facile and factual attacks and finding that discovery
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  Speaker 1: was not necessary before dismissal on facile attack. Similarly, district
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  Speaker 1: courts enjoy broad discretion to control the timing of discovery,
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  Speaker 1: and plaintiffs have no automatic right to conduct discovery in
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  Speaker 1: order to learn the facts that would establish or enable
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  Speaker 1: them to state a plausible claim for relief. Instead, plaintiffs
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  Speaker 1: must allege such facts at the outset of the case.
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  Speaker 1: By making this recommendation, the under signed does not announce
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  Speaker 1: or advocate a blanket rule that FTCA plaintiffs always have
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  Speaker 1: a right to discovery when the government raises a discretionary
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  Speaker 1: function exception by the way of facil attack on the
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  Speaker 1: subject matter jurisdiction in the court's view. District courts retain
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  Speaker 1: discretion to stay discovery in such cases and may order
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  Speaker 1: dismissal even without the benefit of discovery. The Undersign nevertheless
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  Speaker 1: recommends that the district judge, in the exercise of his
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  Speaker 1: discretion in this case, allow a ninety day period of
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  Speaker 1: jurisdictional discovery limited to the existence of content of any mandatory,
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  Speaker 1: established policy, protocol and procedures, whether written or otherwise, governing
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  Speaker 1: the FBI's conduct in assessing or handling tips, reports, complaints
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  Speaker 1: regarding sexual abuse, child sexual abuse, and or child abuse material.
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  Speaker 1: Once this discovery has been completed, the government may renew
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  Speaker 1: this motion seeking dismiss under the discretionary function exception. All right, folks,
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  Speaker 1: we're gonna wrap up right here, and in the next episode,
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  Speaker 1: we're gonna pick up with b lack of private party
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  Speaker 1: analogs understate law. All the information that goes with this
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  Speaker 1: episode can be found in the description box.