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                         REVISED March 27, 2020

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                       Fifth Circuit

                                                                      FILED
                                                                 January 10, 2020
                                  No. 19-10202
                                                                   Lyle W. Cayce
                                                                        Clerk
BRUCE JOINER,

             Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before WIENER, HIGGINSON, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      We withdraw the court’s prior opinion of January 10, 2020 and substitute
the following opinion.
      The district court dismissed this case for lack of subject matter
jurisdiction under the Federal Tort Claims Act and the Anti-Terrorism Act. It
also precluded additional discovery. We affirm.
                                        I.
      On May 3, 2015, Bruce Joiner was on duty as a security guard for the
“First Annual Muhammed Art Exhibit and Contest” in Garland, Texas. That
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day, a pair of Islamic terrorists—Elton Simpson and Nadir Soofi—attacked the
event site and shot Joiner in the leg.
      Both Simpson and Soofi were subjects of an ongoing FBI investigation at
the time of the shooting. As early as 2007, Simpson, an Arizona citizen, was
flagged for potential terrorist sympathies. By 2010, Simpson became friendly
with Soofi, a fellow mosque member. Around this time, Soofi attempted to
purchase a handgun from the Lone Wolf Trading Company in Arizona. The
Lone Wolf store was part of the Bureau of Alcohol, Tobacco and Firearms’ “Fast
and Furious” gunwalking operation, where federal agents would sell firearms
to unauthorized buyers in hopes of tracing them back to the Mexican cartel. A
background check identified Soofi as possibly being ineligible to purchase a
firearm, and a seven-day hold was initially placed on the sale. It was lifted
after twenty-four hours, at which point Soofi bought the gun.
      On January 7, 2015, terrorists affiliated with al-Qaeda attacked the
Paris offices of Charlie Hebdo in retaliation for the magazine’s publication of
cartoons depicting the prophet Muhammad. Ten days later, an Islamic group
held a conference at the Curtis Culwell Center in Garland, Texas, called “Stand
with the Prophet in Honor and Respect.” The conference featured criticism of
those who published likenesses of Muhammad.               In response, another
organization planned a “Draw the Prophet” event, also to be held in Garland.
      Simpson denounced the “Draw the Prophet” event in a Twitter exchange
with Mohamed Abdullahi Hassan, an ISIS leader in Somalia.               Simpson
tweeted, “When will they ever learn,” and Hassan responded, “The brothers
from the Charlie Hebdo attack did their part. It’s time for brothers in the #US
to do their part.”
      At this point, Erick Jamal Hendricks, a South Carolina man, contacted
Simpson via Twitter. Hendricks had been working to establish an ISIS cell in
the United States and was being investigated by and in communication with
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an undercover FBI agent known as UCE-1.             UCE-1 initially contacted
Hendricks on social media, posing as a Muslim interested in joining ISIS. After
vetting UCE-1, Hendricks asked for his help recruiting members for a domestic
terror group. UCE-1 contacted Simpson on April 23, 2015, at Hendricks’
instruction. The next day, Simpson and UCE-1 had the following conversation
over social media:
      UCE-1: Tear up Texas.
      Simpson: Bro, u don’t have to say that . . . U know what happened in
      Paris . . . I think . . . Yes or no . . . ?
      UCE-1: Right.
      Simpson: So that goes without saying . . . No need to be direct.

      UCE-1 remained in communication with Hendricks about the upcoming
Garland event. Hendricks explained that he was on the no-fly list and could
not travel to Texas. UCE-1 volunteered to go instead. Hendricks told UCE-1,
“You can link with him [Simpson] brother. That’s your call.”
      On May 3, UCE-1 traveled to Garland where the “Draw the Prophet”
event was taking place. UCE-1 drove his own car and Simpson and Soofi
followed in another vehicle. UCE-1 communicated with Hendricks in real time,
informing him that he was in the vicinity and implying he was armed.
Hendricks asked a variety of questions about the security setup at the site. As
the two cars approached a police barricade at the rear entrance to the event,
UCE-1 took a photograph of the area on his cell phone. Two security officers,
including Joiner, were visible in the background.
      Simpson’s car pulled up to the barricade. Simpson and Soofi jumped out
and began shooting, hitting Joiner in the leg.
      Joiner filed suit against the United States under the Federal Tort Claims
Act (“FTCA”) and the Anti-Terrorism Act (“ATA”), for assault and
international terrorism, respectively. The government moved to dismiss under
Federal Rule of Civil Procedure 12(b)(1), stating that the FTCA claim was
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                                  No. 19-10202
barred by the discretionary function exception and that there was no waiver of
sovereign immunity on the ATA claim. The district court granted the motion
and concluded that Joiner was not entitled to further discovery.
                                        II.
      Sovereign immunity implicates a federal court’s subject matter
jurisdiction and is subject to de novo review. Tsolmon v. United States, 

, 382 (5th Cir. 2016). In assessing whether there is jurisdiction, courts
may consider: (1) the complaint alone; (2) the complaint supplemented by
undisputed facts evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of disputed facts.

are reviewed for abuse of discretion.         Grogan v.
Kumar, 

, 280 (5th Cir. 2017).
                                       III.
      The FTCA provides a limited waiver of sovereign immunity for certain
tortious government conduct. 28 U.S.C. § 1346. However, if the suit implicates
“the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee
of the Government, whether or not the discretion involved be abused”—the so-
called “discretionary function” exception—sovereign immunity is retained. 28
U.S.C. § 2680(a). The discretionary function exception “prevent[s] ‘judicial
second-guessing’ of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.” United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 

, 814 (1984). As the district court correctly noted, “[a]t the pleading
stage, the plaintiff has the burden to ‘invoke the court’s jurisdiction by alleging
a claim that is facially outside of the discretionary function exception.’” Gibson
v. United States, 

, 811 n.1 (5th Cir. 2016) (quoting Freeman v.
United States, 

, 334 (5th Cir. 2009)). Thus, Joiner carries the
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                                    No. 19-10202
burden of establishing that the discretionary function exception does not apply
at this stage in the proceedings.
         The parties dispute whether exceptions to the FTCA should be construed
in favor of the sovereign or in favor of the plaintiff. The district court “strictly
construe[d] . . . waivers [of sovereign immunity], resolving all ambiguities in
favor of the sovereign.” As a general matter, the district court is certainly
correct. See Lane v. Pena, 

, 195 (1996) (noting the “established
practice of construing waivers of sovereign immunity narrowly in favor of the
sovereign”). But “unduly generous interpretations of the exceptions [to the
FTCA] run the risk of defeating the central purpose” of the FTCA, making
application of this general rule improper in this context. Dolan v. United States
Postal Serv., 

, 491–92 (2006) (quoting Kosak v. United States, 

, 853 n.9 (1984)). Instead, our objective when construing an exception
to the FTCA “is to identify ‘those circumstances which are within the words
and reason of the exception’—no less and no more.” 

n.9
(quoting Dalehite v. United States, 

, 31 (1953)). Therefore, the
district court erred in stating the standard for construing exceptions to the
FTCA; we do not construe exceptions to the FTCA in favor of any particular
party.     But as explained below, this error was harmless because Joiner’s
contentions fail either way.
      The discretionary function exception has two parts. First, the court must
consider whether the conduct at issue was “discretionary in nature” and
involved an “element of judgment or choice.” United States v. Gaubert, 

, 322 (1991). If a plaintiff can point to a “specific, nondiscretionary
function or duty” that “prescribe[s] a specific course of action for an agency or
employee,” then there is no discretion. 

. Second, if
there is discretion, the court must evaluate whether it is “of the kind that the
discretionary function exception was designed to shield.” 

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322–23 (quoting Berkovitz ex rel. Berkovitz v. United States, 

, 536
(1988)). We conclude that the district court correctly declined jurisdiction
under this two-step framework.
      Under the first step of the analysis under Gaubert, we conclude that the
plaintiff has failed to identify a nondiscretionary duty violated by an agency or
employee of the United States. For his part, Joiner contends that UCE-1
violated a specific policy: the Attorney General’s Guidelines on FBI Undercover
Operations’s (“AGG-UCO”) requirement that, when “an undercover employee
learns that persons under investigation intend to commit a violent crime, he
or she shall try to discourage the violence,” and that an “undercover employee
shall be instructed that he or she shall not participate in any act of violence.”
Undercover and Sensitive Operations Unit, Attorney General’s Guidelines on
FBI Undercover Operations § VI.A.2 (1992).        Joiner further cites the FBI
Domestic Investigations and Operations Guide (“DIOG”), which states that
“certain types of [otherwise illegal activity] cannot be authorized, such as . . .
participation in an act of violence.”       FBI Domestic Investigations and
Operations Guide § 17.1. Specifically, Joiner posits that UCE-1 contributed to
the violence in Garland by sending the “Tear up Texas” message and by
traveling to the event site and communicating with Hendricks about the
security setup there, as well as by failing to discourage the violent acts.
      The government responds that the AGG-UCO and DIOG do not govern
the activities of undercover FBI agents engaged in investigations concerning
national security.   The government submitted an affidavit from the FBI’s
Acting Assistant Director for the Counterterrorism Division stating that the
operative policy document for counterterror operations is the National Security
Undercover Operations Policy Implementation Guide (“NSUCOPG”).                The
affidavit explains that the NSUCOPG, the bulk of which is classified at
“Secret” or above, “functions as a standalone policy, and there is no other FBI
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                                  No. 19-10202
policy that specifically applies” to national security investigations. It affirms
that the NSUCOPG “does not contain any provision directing the particular
operational manner in which the undercover technique should be carried out.”
It also notes that the types of activities UCE-1 engaged in are routine,
undercover actions.
      Even accepting, arguendo, that the AGG-UCO and DIOG control the
FBI’s actions in this case, the government’s actions here do not violate any
stated policy. To begin with, the AGG-UCO directs agents only to “try to
discourage” potential violence. Far from being an explicit command to behave
in a certain manner, the language explicitly affords agents latitude in deciding
the extent of appropriate action. In other words, the directive retains “an
element of judgment or choice”—the basis for the discretionary function
exception. 

. See also Gonzalez v. United States, 

, 1031–32 (9th Cir. 2016) (holding that a DIOG policy that an
“employee must attempt expeditiously to notify other law enforcement
agencies” of a threat was “replete with discretionary determinations” and “not
the language of ‘a specific statutory or regulatory directive’”) (quoting

–43).
      Nor has Joiner demonstrated that any of the FBI’s or UCE-1’s actions
rise to the level of “participating” in an act of violence. During oral argument,
Joiner admitted that his strongest case for the government’s involvement in
the eventual injury was UCE-1’s “communication” with Simpson, Soofi, and
Hendricks, providing reconnaissance, and traveling to the site. But such a
broad reading of “participation” that encompasses actions that are only
remotely related to the ultimate injury is inconsistent with sovereign
immunity jurisprudence. We decline to adopt such an expansive interpretation
of the term “participation,” particularly in light of the Supreme Court’s
instruction that we must not construe ambiguities in the FTCA context in any
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                                  No. 19-10202
particular party’s favor. See 

n.9 (quoting Dalehite v.
United States, 

, 31 (1953)). We thus conclude that, even if we were
to accept Joiner’s proposed framework, the government did not violate any
directives prohibiting agents from engaging in acts of violence.
      Turning to the second step of the analysis under Gaubert, we conclude
that the discretion at issue here is precisely the kind that the exception was
designed to shield. An undercover national security operation is a textbook
example of discretionary action that Congress meant to insulate from judicial
second-guessing. See 

(holding that “[d]ecisions on
when, where, and how to investigate” are “core examples of discretionary
conduct for which the United States maintains its immunity”) (quoting Sutton
v. United States, 

, 1294–95 (5th Cir. 1987)); Buchanan v. United
States, 

, 972 (5th Cir. 1990) (“We do not believe that Congress
meant for judges, through hindsight, to second-guess such difficult decisions”
like when volatility and potential violence are at issue); see also Tiffany v.
United States, 

, 277 (4th Cir. 1991) (“Of the legion of governmental
endeavors, perhaps the most clearly marked for judicial deference are
provisions for national security and defense.”). The discretionary function
exception thus applies.
      Joiner’s remaining arguments are likewise unavailing. For example, he
contends that the Fast and Furious gun sale contravened the FBI’s express
policy prohibiting the sale of firearms to suspected terrorists. The district court
disagreed, detailing instances of the agency’s discretion and ultimately
concluding that the agency did not violate a policy or a statute. On appeal,
Joiner recites the facts relating to the gunwalking operation but does not tie
those facts back to the discretionary function exception. The argument is
inadequately briefed and thus waived. See McIntosh v. Partridge, 

, 325 n.12 (5th Cir. 2008).
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                                 No. 19-10202
      He also claims that the discretionary function exception is not applicable
in this instance because the “law enforcement proviso” effectively overrides it.
The FTCA does waive sovereign immunity for certain tortious acts stemming
from “acts or omissions of investigative or law enforcement officers of the
United States Government”—presumably like UCE-1. 28 U.S.C. § 2680(h).
But the law enforcement proviso is mentioned only in passing in Joiner’s
complaint, and without any reference or connection to the discretionary
function exception.
      And for good reason—the argument is unavailing. This court, along with
the Second, Fourth, Seventh, Ninth, and D.C. Circuits, has held that the law
enforcement proviso does not negate the discretionary function exception. See
Campos v. United States, 

, 731 (5th Cir. 2018) (“[B]oth the proviso
and the discretionary function exception must be read together. In other
words, one does not moot the other when both cover a fact pattern.”) (internal
citation omitted); see also Linder v. United States, 

, 1089 (7th
Cir. 2019); Medina v. United States, 

, 224–26 (4th Cir. 2001);
Gasho v. United States, 

, 1434–35 (9th Cir. 1994); Gray v. Bell,

, 507–08 (D.C. Cir. 1983); Caban v. United States, 

,
1234 (2d Cir. 1982); but see Nguyen v. United States, 

, (11th Cir.
2009). So even if Joiner invoked the law enforcement proviso here, that does
not automatically trump the discretionary function exception—and he has not
demonstrated why it should trump the discretionary function exception here.
      In sum, Joiner has not established that the discretionary function
exception does not apply under the FTCA. Accordingly, sovereign immunity
has not been waived.
                                       IV.
      Appellant also challenges the district court’s decision not to recognize the
state-created danger doctrine, which theorizes that the government may be
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                                 No. 19-10202
liable for tortious conduct “if the state actor created or knew of a dangerous
situation and affirmatively placed the plaintiff in that situation.” Doe ex rel.
Magee v. Covington Cty. Sch. Dist. ex rel. Keys, 

, 864 (5th Cir.
2012) (en banc). Joiner asserts that the FBI, and UCE-1’s actions, contributed
to endangering lives and led to his injury. He does not argue that the state-
created danger doctrine provides an independent basis for liability under the
FTCA.    Instead, the claim is that the doctrine is a limitation on the
discretionary function exception—namely that the government never has the
discretion to imperil its citizens or commit acts of violence against them.
      We have repeatedly declined to recognize the state-created danger
doctrine in this circuit.   See, e.g., Cook v. Hopkins, No. 19-10217, 2019
WL5866683, at *5 (5th Cir. Nov. 8, 2019) (per curiam); Estate of C.A. v. Castro,
547 F. App’x. 621, 626 (5th Cir. 2013) (per curiam); Whitley v. Hanna, 

, 639 n.5 (5th Cir. 2013); 

; Beltran v. City of El Paso,

, 307 (5th Cir. 2004). Joiner has been unable to point to a single
case where a plaintiff has used the state-created danger doctrine to overcome
the FTCA’s discretionary function exception. Instead, the doctrine, where
applicable, generally permits a plaintiff to proceed on a claim when sovereign
immunity is already waived, as in suits under 28 U.S.C. § 1983. We thus
decline to forge new circuit precedent and adopt the state-created danger
doctrine in such uncharted territory.
                                        V.
      Joiner also appeals the district court’s dismissal of the case for lack of
subject matter jurisdiction under the Anti-Terrorism Act. The ATA states that
“[n]o action shall be maintained” against “the United States, an agency of the
United States, or an officer or employee of the United States” from injury
arising from international terrorism. 18 U.S.C. § 2337. Joiner argues that the
Geneva Convention’s prohibition of a signatory’s “absolv[ing] itself . . . of any
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                                  No. 19-10202
liability incurred by itself . . . in respect of breaches” functions as customary
international law and waives sovereign immunity. But a waiver of sovereign
immunity “cannot be implied but must be unequivocally expressed.” United
States v. King, 

, 4 (1969).        Congress has explicitly stated that
sovereign immunity shall not be waived for injuries related to terrorist
incidents. The district court properly dismissed the ATA claims for lack of
subject matter jurisdiction.
                                       VI.
      Lastly, Joiner challenges the district court’s ruling that discovery was
unlikely to overcome the discretionary function exception. Plaintiffs bear the
burden of demonstrating the necessity of discovery. See Davila v. United
States, 

, 264 (5th Cir. 2013); 

–42. A
plaintiff is “not entitled to jurisdictional discovery if the record shows that the
requested discovery is not likely to produce the facts needed to withstand a
Rule 12(b)(1) motion.” 

. That burden is even greater
when “the party seeking discovery is attempting to disprove the applicability
of an immunity-derived bar to suit because immunity is intended to shield the
defendant from the burdens of defending the suit, including the burdens of
discovery.”

only conjecture as to how the government’s
interactions with Simpson and Soofi led to his injury, speculating that the
government may have aided in procuring weapons or provided additional
communications with the terrorists on the day of the shooting.               These
recitations are insufficient to establish that further discovery will overcome the
discretionary function exception and defeat sovereign immunity. The district
court did not abuse its discretion by barring additional discovery.
                                          ***
      For the foregoing reasons, we affirm.


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