11. Supplemental Declaration of Richard Wade Exhibit # Brief DE# Date Filed Filing Party 5 Motion to Exclude Wade Testimony 226-6 10/14/11 United States 17a 28 U.S.C. § 2680(a) Response Brief 192-1 9/16/11 Plaintiffs The following two exhibits were not filed with the Court as exhibits, but were released by the Court in its October 20 order: Ex. 12.

Plaintiff’s claims alleging negligent supervision of the County fall within the discretionary function exception. 28 U.S.C. § 2680(a); Nurse v. United States, 226 F.3d 996, 1001 (9th Cir. 2000) 4. The United States, as landowner of the roadway on which the accident occurred, is not liable to recreational users, such as Plaintiff, for negligence.

28 U.S.C. §§ 1346(a)(2), 1491(a)(1). First, as noted above, 28 U.S.C. § 2680(c) bars an FTCA claim arising out of “the detention of any goods, merchandise or other property by . . . [a] law enforcement officer” unless “the property was seized for the purpose of forfeiture.” 28 U.S.C. § 2680(c); Ramirez, 604 Fed. Appx. at 567-68. On this basis alone, Plaintiff’s conversion claim fails under the FTCA. See Foster v. United States, 522 F.3d 1071, 1074 (9th Cir. 2008) (“the FTCA maintains sovereign immunity for the entire universe of claims against law enforcement officers arising in respect of the detention of property”) (quoting Ali v. Fed. Bureau of Prisons 128 S. Ct. 831, 841, 169 L. Ed. 2d 680 (2008) (emphasis in original). Second, Plaintiff asserts, without any citation, that 18 U.S.C. § 793(d) was only “intended to be applied to actual cases of espionage and serious misuse of national security information.”

o Jones v. United States, 16 F.3d 979, 980–81 (8th Cir.1994) (United States retains its Case 2:17-cv-00705-DGC Document 6 Filed 05/08/17 Page 10 of 18 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sovereign immunity under § 2680(c) even when the claims encompass torts an constitutional violations); Perkins v. United States , 55 F.3d 910, 916–17 (4th Cir.1995) (Section 2680(c) exception applies to protect illegal acts or torts committed by IRS agents when they are related, however remotely, to a bona fide effort to assess or collect tax debt); Capozzoli v. Tracey, 663 F.2d 654, 657 (5th Cir.1981) (alleged invasion of privacy and trespass in photographing property during an investigation of casualty loss; language of § 2680(c) “is broad enough to encompass any activities of an IRS agent even remotely related to his or her official duties”). Here, Plaintiff’s claims arise with respect to the collection of income taxes and are therefore barred by 28 U.S.C. § 2680. Consequently, the Court has no jurisdiction over any of the tort claims asserted in the Complaint.

III. CONCLUSION Under the pleadings, Court record, and the cases cited above, this Court lacks subject matter jurisdiction over Plaintiff’s tort claims. Accordingly, this action must be dismissed in its entirety pursuant to Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. § 2680(a). Case 4:15-cv-00173-BLW Document 30-1 Filed 04/28/17 Page 12 of 14 MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION - 13 Respectfully submitted this 28th day of April, 2017.

In re Consolidated U.S. Atmospheric Testing Litigation, 820 F.2d 982, 998 (9th Cir.1987) (Consolidated): [Appellants] argue that the discretionary function exception cannot apply in the absence of a “conscious decision.” The statute is not so limited; it exempts “[a]ny claim based upon...the failure to exercise or perform a discretionary function...” 28 U.S.C. § 2680(a). The language is directed at the nature of the conduct, and does not require an analysis of the decision-making process.

3 However, Plaintiff may not challenge a decision to classify on national security grounds pursuant to the FTCA’s discretionary function exception, which provides that the United States has not consented to suit regarding an act or omission of the United States: …based upon the exercise or performance or the failure to exercise 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. 28 U.S.C. § 2680(a). Determining whether this exception applies involves a two-part analysis.

Plaintiff’s claim falls squarely within the exception to the waiver of sovereign immunity embodied in the FTCA for claims relating to the loss, miscarriage, or negligent transmission of mail matter. See 28 U.S.C. § 2680(b). As such, plaintiff’s claim is precisely the type of action that Congress sought to bar and, therefore, must be dismissed.

As a result, Loumiet’s conclusory allegation that Schneck and Sexton are “investigative” officers fails to bring them within the scope of § 2680(h). Finally, the Court is not bound by Loumiet’s conclusory allegation that Schneck and Sexton are “investigative officer[s] as that term is used in 28 U.S.C. 2680(h) because, at all relevant times, [they] had the authority to execute searches and to seize evidence.” Compl.

A. The Discretionary Function Exception The discretionary function exception of the FTCA precludes the imposition of liability for conduct "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Application of this exception is determined by a two-part test.