CASE NO. 15-20245

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STEVEN CRAIG PATTY,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA, Defendant-Appellee.

_______________________________________________________________

On Appeal from the United States District Court for the Southern District of Texas (Houston Division)

The Honorable Lee H. Rosenthal D.C. No. 4:13-cv-03173-LHR

_______________________________________________________________

APPELLANT’S BRIEF _______________________________________________________________

Respectfully submitted,

Arnold Anderson Vickery Fred H. Shepherd

THE VICKERY LAW FIRM 10000 Memorial Dr., Suite 750

Houston, TX 77024-3485 Telephone: 713-526-1100 Facsimile: 713-523-5939

Counsel for Plaintiff-Appellant

ORAL ARGUMENT REQUESTED

Certificate of Interested Persons Pursuant to FED. R. APP. P. 26.1, the undersigned counsel of record certifies that the following listed people and entities have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.

Steven Craig Patty Appellant/Cross-Appellee Arnold Anderson Vickery Fred H. Shepherd THE VICKERY LAW FIRM 10000 Memorial Dr., Suite 750 Houston, TX 77024-3485 Counsel for Plaintiff-Appellant United States of America Defendant-Appellee Steve I. Frank Fred T. Hinrichs U.S. Attorney’s Office 1000 Louisiana St., Suite 2300 Houston, TX 77002 Counsel for Defendant-Appellee

/s/ Arnold Anderson Vickery Arnold Anderson Vickery Counsel for Plaintiff-Appellant

-ii-

STATEMENT REGARDING ORAL ARGUMENT

Because of the on-going developments in the law, as reflected by the June

2015 decision in Horne v. Dep't of Agric., 135 S. Ct. 2419 (2015), and the

incredible1 policy implications of the decision below, counsel respectfully submit

that oral argument would be beneficial in this case.

1 With great respect for this Court, we do not use this word lightly. As the Court will see, the facts of this case could rightly be labeled outrageous with respect to the trampling of a private citizen’s fundamental rights.

-iii-

Table of Contents

Certificate of Interested Parties................................................................................. ii

Statement Regarding Oral Argument....................................................................... iii

Index of Authorities. ................................................................................................ vi

Introductory Note Regarding References to the Record. .......................................... 1

Jurisdictional Statement. ........................................................................................... 1

Issues on Appeal. ...................................................................................................... 1

Statement of the Case................................................................................................ 1

Statement of the Facts. .............................................................................................. 1

Course of Proceedings and Disposition Below......................................................... 5

Summary of the Argument........................................................................................ 6

Scope of Review. ...................................................................................................... 7

Argument and Authorities......................................................................................... 7

I. THE GOVERNMENT’S CONDUCT CONSTITUTED ANUNCONSTITUTIONAL “TAKING”............................................................ 7

A. The Government’s Temporary “Taking” of Patty’s TruckIs Compensable. ................................................................................... 7

B. The Government Owes Patty “Just Compensation” in anAmount to be Determined by a Jury................................................... 10

-iv-

II. THE DISTRICT COURT’S DETERMINATION THAT THE HPDOFFICER’S ACTIONS AND INACTIONS CONSTITUTE A“DISCRETIONARY FUNCTION” OF THE UNITED STATESGOVERNMENT WAS ERRONEOUS. ...................................................... 14

CONCLUSION....................................................................................................... 18

Certificate of Service. ............................................................................................. 19

Certificate of Compliance. ...................................................................................... 20

-v-

Index of Author ities

Cases Page(s)

Arkansas Game & Fish Comm'n v. United States,133 S. Ct. 511, 184 L. Ed. 2d 417 (2012)..................................................... 10

Arkansas Game & Fish Comm’n v. United States,736 F.3d 1364 (Fed. Cir. 2013). ................................................................... 13

Berkovitz by Berkovitz v. United States,486 U.S. 531 (1988). .................................................................................... 16

City of Monterey v. Del Monte Dunes at Monterey, Ltd.,526 U.S. 687 (1999). .................................................................................... 12

Horne v. Dep't of Agric.,135 S. Ct. 2419 (2015). ................................................. iii, 8, 9, 10, 11, 16, 18

In re FEMA Trailer Formaldehyde Products Liab. Litig. (Louisiana Plaintiffs),713 F.3d 807 (5th Cir. 2013). ................................................................. 16, 17

Kimball Laundry Co. v. United States,338 U.S. 1 (1949). ........................................................................................ 11

Levin v. United States,133 S. Ct. 1224 (2013). ................................................................................ 14

Loretto v. Teleprompter Manhattan CATV Corp.,458 U.S. 419 (1982). .............................................................................. 10, 12

Lucas v. S. Carolina Coastal Council,505 U.S. 1003 (1992). .................................................................................. 12

Moden v. United States,404 F.3d 1335 (Fed.Cir. 2005). .................................................................... 13

Patty v. United States,No. CIV.A.H-13-3173, 2015 WL 1893584 (S.D. Tex. Apr. 27, 2015). ............................................................................................................... 2, 3, 4

-vi-

Richards v. United States,369 U.S. 1 (1962). ........................................................................................ 14

Starnes v. United States,139 F.3d 540 (5th Cir. 1998). ......................................................................... 7

Tahoe–Sierra Preservation Council,535 U.S., 302 (2002). ..................................................................................... 9

United States v. 50 Acres of Land,469 U.S. 24, 105 S.Ct. 451, 83 L.Ed.2d 376 (1984) (quoting Olson v.United States, 292 U.S. 246, 54 S.Ct. 704, 78 L.Ed. 1236 (1934)).............. 10

United States v. Gaubert,499 U.S. 315 (1991). ........................................................................ 15, 16, 17

Rules Page (s)

Local Rule 28.2.2. ..................................................................................................... 1

Statutes Page (s)

28 U.S.C. § 1291....................................................................................................... 1

28 U.S.C. § 1346(b). ................................................................................................. 1

28 U.S.C.A. § 2674................................................................................................. 14

28 U.S.C.A. § 2679................................................................................................... 9

28 U.S.C.A. § 2680........................................................................................... 15, 16

Constitutions Page(s)

U.S. Const., amend. V............................................................................................... 8

-vii-

Introductory Note Regarding References to the Record

Pursuant to Local Rule 28.2.2, references to the Electronic Record on

Appeal in this single record case are in the form “ROA.XXX.”

Jurisdictional Statement

This is an unconstitutional “taking” and Federal Torts Claims Act [“FTCA”]

case. Therefore, the district court had jurisdiction pursuant to 28 U.S.C. § 1346(b).

On April 27, 2015, the court below issued its Memorandum and Opinion granting

summary judgment in favor of the United States Government. ROA.218. On the

same day it entered Final Judgment. ROA.244. Plaintiff’s Notice of Appeal was

timely filed on April 28, 2015. ROA.245. Therefore, this Court has appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

Issues on Appeal

Whether the DEA’s “taking” of Patty’s truck without “just compensation” violates the Fifth Amendment? Whether the lower court erred by holding that the “discretionary function” exception bars liability under the FTCA?

Statement of the Case

Statement of the Facts

The facts leading to this appeal are simple, straight-forward, and

uncontested. They are laid out with specificity in Appellant Craig Patty’s

Amended Complaint, ROA.181-86, in Plaintiff’s Response to the United States

-1-

Motion of Summary Judgment, ROA.607-28, and in the lower court’s opinion

granting summary judgment, ROA.250-53. See also Patty v. United States, No.

CIV.A.H-13-3173, 2015 WL 1893584, at *1-2 (S.D. Tex. Apr. 27, 2015).

Therefore, the statement of facts will be brief.

The long and short of it is that, due to neglect by a federally deputized

Houston Police Department (“HPD”) officer working as part of a federal anti-drug

trafficking task force called “HIDTA,”2 the United States DEA commandeered a

private citizen’s truck – one of two that Patty’s fledgling business desperately

needed – without his consent or knowledge for an undercover “controlled-

delivery” operation against Mexican drug lords. ROA.641-47, 730, 751-52. For,

unbeknownst to Patty, one of his employees, and the driver of the truck in

question, was a “confidential source” (“CS”) for the DEA. The HPD Officer

working for the DEA readily admitted to all of the above as well as admitting he

took no steps to ask or verify who was the rightful owner of the truck. Id.; Id. at

ROA.710-12.

The Government was on notice that the CS driver who was “controlled” by

the deputized HPD Officer did not own the truck and, indeed, was lying to the

2 The High Intensity Drug Trafficking Area program is a federally-funded law enforcement measure designed to focus law enforcement efforts upon high volume drug trafficking regions in the U.S.

-2-

owner about its whereabouts and its use.3 More troubling, although the Officer

knew “if we’re going to use somebody else’s vehicle, we have to have

permission,” he was just unaware of the actual formal DEA policy or procedure

requiring the Government to obtain permission from the true owner of private

property before using it for Governmental purposes. ROA.719-20. “It is not

something that [we] normally, typically do[es] despite “hav[ing] to have

permission.” Id.

Moreover, because the agents involved in this specific operation were well

aware of the license plate number of the truck (ROA.768), the Officer conceded

the DEA could readily have obtained true ownership information and permission,

if they chose to do so. ROA.715-16. Neither he nor the DEA made any effort to

determine or contact the true owner. Id. at ROA.710-12. They did not because the

officers involved “didn’t see the necessity of it.” Id. at ROA.729. Yet, the officer

also readily admits the truck was used purposefully for governmental purposes and

government benefit and damaged as a result. ROA.730, 751-52.

In the end, the controlled-delivery went horribly wrong. The driver and the

truck were both ambushed and shot. The driver was killed. One law enforcement

3 “Patty's driver told [the HPD Officer] that ‘he had contract work that would put him in the vicinity of Rio Grande City, Texas,’ and that ‘he would tell the owner of the tractor-trailer that he was leasing[ ] that he had planned to spend Thanksgiving in Houston’ and ‘knew of an inexpensive repair shop in Houston where he could take the truck for routine maintenance and needed repairs.’” Patty, 2015 WL 1893584, at 1 (emphasis added).

-3-

officer shot another undercover law enforcement officer by mistake. Patty’s truck

was substantially damaged and taken out of service. Patty, 2015 WL 1893584, at

2.

To make matters worse, because of the nature of the damages, Patty’s

insurance company refused to repair the truck. Id. Patty was ultimately forced to

take an early withdrawal from his 401k to effectuate repairs. Id. He incurred

significant economic damages for the damages his truck sustained and the penalties

of early withdrawal. ROA.186. The financial crisis and stress from facing

financial ruin also directly affected Craig’s health. He began to suffer heart

palpitations. He was diagnosed with an anxiety disorder and depression and was

prescribed prescription medications to treat them. The stress dissolved his

marriage and resulted in divorce. ROA.771-77 and 778-79.4 This private citizen

who was simply trying to earn an honest living was taken advantage of and left

with the shattered remains of a life that was fundamentally altered both

emotionally and financially all because the DEA decided its law enforcement

mission was more important than protecting his rights. This is patently unjust and

unfair.

4 Notably, ROA.778-79, is the Government’s own expert witness report in this case. Even he admitted that Patty suffered anxiety and depression related to this incident.

-4-

Instead of an apology and recompense, the truck owner, Craig Patty,

received utter disdain from his Government. His administrative claim was denied.

ROA.181. And to add insult to injury, his case was summarily decided without

even a day in court.

Course of Proceedings and Disposition Below

As required by law, Plaintiff/Appellant Craig Patty originally sought justice

for damages he sustained during a DEA operation on a pro se basis by filing an

administrative claim under the FTCA. When that claim was denied by operation

of law, he retained counsel who filed this suit. After discovery, both sides sought

either total or limited summary judgment. The lower court held that Patty’s Fifth

Amendment “takings” claim had been waived, and then rendered summary

judgment on the FTCA claim based on her determination that the challenged

conduct fell within the ambit of the “discretionary functions” exception to that Act.

This appeal timely follows.

Because the facts are, with the exception of damages, completely

undisputed, this Court may reverse the court below, render judgment for Appellant

Patty with regard to one or both of the theories of liability, and remand to the

district court for a trial to determine damages.

-5-

Summary of the Argument

There are two different legal pathways to compensation in this case. The

first is the Fifth Amendment to the Constitution, which (a) prohibits a “taking”

without “due process” or “just compensation” and (b) clearly involves no

considerations of “sovereign immunity.” It was pled (ROA.188 at ¶ 29), and noted

in the summary judgment context. ROA.621. The court below acknowledged the

Fifth Amendment arguments, but then totally ignored this constitutional limitation

on the Government’s power, and, the separate basis for recovering “just

compensation” provided thereby. ROA.264. In so doing, it erred. This Court

should reverse that holding, and, in order to preserve the Seventh Amendment

rights of the Appellant Patty, should remand for a jury trial as to the amount of

money that would constitute “just compensation” in this case.

The second theory of recovery is the FTCA which purports to waive

sovereign immunity and render the United States liable “to the same extent as a

private citizen” subject, of course, to various statutory procedures, limitations, and

exceptions. Patty, who at that time was pro se, complied completely with the

presuit administrative claims requirements of the FTCA. The single issue before

this Court is whether the court below erred by holding, on these very unique facts,

that the actions or inactions of the deputized HPD officer constitute a

-6-

“discretionary function” of the United States Government, within the ambit of a

statutory exception to the FTCA’s waiver of sovereign immunity.

Scope of Review

This Court’s standard of review is, of course, de novo. Starnes v. United

States, 139 F.3d 540, 542 (5th Cir. 1998).

Argument and Authorities

I. THE GOVERNMENT’S CONDUCT CONSTITUTED AN UNCONSTITUTIONAL “TAKING.”

America is unquestionably a beneficiary of much that is good from the

English Common Law. However, the pernicious notion that the “King cannot be

sued”, a/k/a the legal doctrine of “sovereign immunity,” is an exception to this

legacy. Many legislatures, including Congress, have created exceptions or waivers

to this fundamentally unfair legal anachronism. With regard to the federal

government itself, the waiver is contained in the FTCA. Craig Patty asserted his

pro se administrative claims in accordance with the FTCA, and, in section II, infra,

we explain how the district court’s construction of this “exception” to the “rule” of

waiver essentially ignores congressional intent and swallows the FTCA waiver in

the process. But, before wading into those waters, we address the Fifth

Amendment issue in this case.

A. The Government’s Temporary “Taking” of Patty’s Truck Is

Compensable. The Fifth Amendment provides that “private property” may not be

-7-

“taken for public use, without just compensation.” U.S.Const., amend. V. The

Supreme Court has decided almost 500 cases involving this constitutional

limitation on the national government’s power and this Court has, of course,

decided many more. The cases usually involve one of two questions: (a) what

constitutes a “taking” and (b) what is “just compensation.”

The most recent decision from the Supreme Court is Chief Justice Roberts’

June 22, 2015, opinion in Horne v. Dep't of Agric., 135 S. Ct. 2419 (2015) which

squarely held that a “taking” includes, not only appropriation of real property, but

also the government’s “physical appropriation” of personal property, which the

High Court brands as a “per se taking, without regard to other factors.” Id. at 2427

(emphasis added).5 The scholarly opinion shows that the Takings Clause has roots

as far back as the Magna Carta, and that, in this country, it was undoubtedly

included in the Constitution because of the abusive practices of the military during

the Revolutionary War of commandeering “horses and carriages” for military use.

Id. at 2426.

With regard to the putative distinction between real and personal property,

the Chief Judge’s opinion summed it up as follows:

5 In spite of the fact that the Fifth Amendment limitation was contained in Patty’s pleadings and mentioned in his summary judgment response, the lower court held that the issue had been “waived” for failing to include more fulsome briefing. The existence and significance of this subsequent Supreme Court authority directly on point militates against the waiver finding.

-8-

Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.

Id. at 2426 (Emphasis added). The Government’s “taking” of Craig Patty’s truck

for its own purposes is clearly violative of the Fifth Amendment. It is a separately

cognizable theory of liability, and is specifically excluded from the ambit of the

FTCA. 28 U.S.C.A. § 2679 (Act “does not extend or apply to a civil action . . .

which is brought for a violation of the Constitution of the United States).

One might question whether the Government’s “public use” of Patty’s truck

was only temporary or “partial” and whether that would make a difference. After

all, regardless of the fact that Patty had to cash in some of his retirement funds (and

had to pay the additional penalties for early withdrawal) to repair the truck, he did,

eventually, still get it back and put it back into service in his business. Would this

make a difference? Again Horne is dispositive: “But when there has been a

physical appropriation, ‘we do not ask ... whether it deprives the owner of all

economically valuable use’ of the item taken. Tahoe–Sierra Preservation Council,

535 U.S. 302, 323 (2002); see also id. at 322 (‘When the government physically

takes possession of an interest in property for some public purpose, it has a

categorical duty to compensate the former owner, regardless of whether the interest

-9-

that is taken constitutes an entire parcel or merely a part thereof.’” Horne, supra,

135 S. Ct. at 2429.

Horne is hardly new law in this regard. Three years prior, in Arkansas

Game & Fish Comm'n v. United States, 133 S. Ct. 511, 515, 184 L. Ed. 2d 417

(2012), the Supreme Court held that “this Court's decisions confirm, if government

action would qualify as a taking when permanently continued, temporary actions

of the same character may also qualify as a taking.” Id. That decision, too, had

been presaged by an earlier opinion. Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982).

B. The Government Owes Patty “Just Compensation” in an Amount

to be Determined by a Jury. In most cases, the determination of “just

compensation” is relatively straight-forward:

“The Court has repeatedly held that just compensation normally is to be measured by ‘the market value of the property at the time of the taking.’” United States v. 50 Acres of Land, 469 U.S. 24, 29, 105 S.Ct. 451, 83 L.Ed.2d 376 (1984) (quoting Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78 L.Ed. 1236 (1934)).

Horne, 135 S. Ct. at 2432. Sadly, this case is not so straightforward. In his FTCA

administrative claim and in his pleadings in this case, Patty alleged damages in two

distinct categories: (a) economic damages of $133,532.10, which include the cost

of repairs to the truck, the value of the loss of use of that truck for a defined period

of time, and other economic losses associated with the Government’s use of his

-10-

truck, and (b) non-economic damages of $1,350,000, which might be branded as

either “consequential damages” or “personal injury” damages attendant to the

taking. ROA.186 at ¶¶ 22, 23.6 Are either/both part of “just compensation”?

Justice Breyer’s dissent in Horne, and the authorities he cites, provide some

guidance. He starts with the well-established principle that “under the Clause, a

property owner ‘is entitled to be put in as good a position pecuniarily as if his

property had not been taken,’ which is to say that ‘[h]e must be made whole but is

not entitled to more.’ Olson v. United States, 292 U.S. 246, 255, 54 S.Ct. 704, 78

L.Ed. 1236 (1934).” Horne, 135 S. Ct. at 2434 (Breyer, J. dissenting). Under

Olson and its progeny, Patty is clearly entitled to recover his “pecuniary” or

economic damages, and, to that extent, be “made whole.” For example, in Kimball

Laundry Co. v. United States, 338 U.S. 1 (1949) the Supreme Court affirmed an

award of all economic damages that flowed from the government’s temporary

taking of a laundry business.

But what about the very significant non-economic damages? Justice

Frankfurter’s opinion in Kimball Laundry recognized that “[t]he value of property

springs from subjective needs and attitudes; its value to the owner may therefore

differ widely from its value to the taker,” but ultimately held that the “value

compensable under the Fifth Amendment, therefore, is only that value which is

6 These damages are described in Plaintiff’s expert report. ROA.771-77.

-11-

capable of transfer from owner to owner.” 338 U.S. at 5-6. One might argue that

this objective, economic standard of “just compensation” would seem to preclude

an award of subjective, non-economic damages specific to Craig Patty, even if they

are “foreseeable.”

However, later case law acknowledges that the question of “just

compensation” under the Fifth Amendment can also involve careful considerations

of the non-economic benefits of private property ownership. See e.g., Lucas v. S.

Carolina Coastal Council, 505 U.S. 1003, 1019n.8 (1992).7

Moreover, a later opinion from the Supreme Court squarely establishes that

there is a Seventh Amendment right to jury trial in a constitutional takings case and

that “the disputed questions [of] whether the government had denied a

constitutional right in acting outside the bounds of its authority, and, if so, the

extent of any resulting damages” are “questions for the jury.” City of Monterey

v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 722 (1999)(emphasis added).

As that case explained, an unconstitutional taking is, in essence, tortious in nature.

7 “Though our prior takings cases evince an abiding concern for the productive use of, and economic investment in, land, there are plainly a number of noneconomic interests in land whose impairment will invite exceedingly close scrutiny under the Takings Clause.” Id. citing Loretto, 458 U.S. at 436 (interest in excluding strangers from one’s land). In Loretto, the High Court acknowledged that, temporary takings were invariably situations in which the damages constituting “just compensation” included “consequential damages.”

-12-

Because of this, traditional notions of foreseeability8 should govern the

determination of what constitutes appropriate “just compensation” and the Seventh

Amendment compels a conclusion that the decision should be made by a jury.

The DEA’s temporary but physical “appropriation” of Patty’s truck without

his consent for the ostensible “public purpose” of hauling illegal drugs for

purposes of a controlled-delivery during a law enforcement operation was clearly

an unconstitutional taking within the ambit of the Fifth Amendment. The lower

court erred in completely rejecting this viable, pleaded, and briefed theory of

recovery. Because the facts are undisputed, this Court can reverse and render with

regard to liability, and remand for a jury trial regarding the nature and extent of

“just compensation” that is appropriate under these circumstances.

8 An example of a court’s use of foreseeability as a barometer of the nature and extent of a constitutional taking and damages resulting therefrom is the Federal Circuit’s recent opinion on remand from the Supreme Court, which had reversed the circuit court’s prior holding that a temporary flooding was not a “taking.” Arkansas Game & Fish Comm’n v. United States, 736 F.3d 1364, 1372 (Fed. Cir. 2013). On remand, the court wrote that “for a taking to occur, it is not necessary that the government intend to invade the property owner's rights, as long as the invasion that occurred was ‘the foreseeable or predictable result’ of the government’s actions.” Id. citing Moden v. United States, 404 F.3d 1335, 1343 (Fed.Cir. 2005).

-13-

II. THE DISTRICT COURT’S DETERMINATION THAT THE HPD OFFICER’S ACTIONS AND INACTIONS CONSTITUTE A “DISCRETIONARY FUNCTION” OF THE UNITED STATES GOVERNMENT WAS ERRONEOUS.

Congress waived sovereign immunity in the FTCA. The 1946 waiver is

clear: “The United States shall be liable . . . in the same manner and to the same

extent as a private individual under like circumstances. 28 U.S.C.A. § 2674. See

Richards v. United States, 369 U.S. 1, 6 (1962)(The FTCA “was designed

primarily to remove the sovereign immunity of the United States from suits in

tort.”) Liability under the FTCA extends to all common law torts, including both

negligence and conversion. See e.g., Levin v. United States, 133 S. Ct. 1224, 1231

(2013).

There is no dispute about the fact that any “private individual” who simply

takes, without permission, another person’s truck without their knowledge or

consent would be “liable” for all damages proximately resulting therefrom. There

is also no dispute in this case that the Government took Patty’s truck for its own

purposes and did not have his consent to do so. ROA.710-12, 730, 751-52.

But there is an exception to the rule of waiver. In a different section of the

FTCA Congress provides that the Act shall not extend to any claim “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

-14-

Government, whether or not the discretion involved be abused.” 28 U.S.C.A. §

2680.

In the court below, Patty contended that the actions/inactions of a deputized

HPD Officer cannot possibly constitute a “discretionary function” of the United

States Government, and, indeed, that this Officer had actually violated

governmental policies. The district court held otherwise.

There is nothing in the statutory language of the FTCA to help determine

what is or is not within the ambit of the “discretionary function” exception.

Therefore, careful consideration must be given to the case law. The lead case is

undoubtedly United States v. Gaubert, 499 U.S. 315 (1991). Unfortunately, it

speaks in broad terms, and the Supreme Court has not specifically decided any

cases on point in the 24 years since it was handed down. Nonetheless, Gaubert is

the starting point. The court there states the basic principles at issue: “Because the

purpose of the exception is to ‘prevent judicial ‘second-guessing’ of legislative and

administrative decisions grounded in social, economic, and political policy through

the medium of an action in tort,’ when properly construed, the exception ‘protects

only governmental actions and decisions based on considerations of public

policy.’” Id. at 323 (citations omitted). An argument was made in that case that

the discretionary function exception could only extend to decisions made at an

executive or policy-making level. The Supreme Court rejected it: “Discretionary

-15-

conduct is not confined to the policy or planning level. ‘[I]t is the nature of the

conduct, rather than the status of the actor, that governs whether the discretionary

function exception applies in a given case.’” Id. at 325. Nonetheless, as this Court

has subsequently held, for the “discretionary function” exception to apply, there

must be (a) an element of choice or “discretion” that is (b) subject to a legitimate

policy analysis. In re FEMA Trailer Formaldehyde Products Liab. Litig.

(Louisiana Plaintiffs), 713 F.3d 807, 810 (5th Cir. 2013).

Because of the Fifth Amendment, there simply can be no “policy analysis”

of a government policy that permits federal law enforcement agencies to use

private citizen’s vehicles without their knowledge, consent, or, in cases like this

one, without providing “just compensation.” The only constitutionally permissible

policy in these circumstances, as stated in June 2015, by Chief Justice Roberts, is

that “[t]he Government has a categorical duty to pay just compensation when it

takes your car.” Horne, supra, 135 S. Ct. at 2426 (emphasis added).

Under Gaubert the Government’s “discretionary function” defense under 28

USC § 2680(a) must be judged by a two-step analysis: (1) there must be an

element of discretionary judgment or choice; that (2) is based on considerations of

public policy. Gaubert, 499 U.S. at 325. The first component is derived from

Berkovitz by Berkovitz v. United States, 486 U.S. 531 (1988) in which the Supreme

Court observed that “the discretionary function exception will not apply when a

-16-

federal statute, regulation, or policy specifically prescribes a course of action for

an employee to follow.” Id. at 536 (Emphasis added). The record in this case

shows that the DEA did have a policy that “if we’re going to use somebody else’s

vehicle, we have to have permission” ROA.720. The officer who made the

decision knew this policy existed. He just chose not to follow it because he did not

see the “necessity” of doing so.

Because of this policy, the first component of the Gaubert test cannot be

satisfied and the discretionary function exception does not, and should not, bar

recovery in this case. The court below acknowledged this testimony, but chose to

weigh and believe other testimony to the contrary. With respect, this is

impermissible in a summary judgment context.

The same is true with regard to the second element of Gaubert. As this

Court recently held, “the second part of the inquiry asks ‘not whether the decision

maker ‘in fact engaged in a policy analysis when reaching his decision but instead

whether his decision was susceptible to policy analysis.’” In re FEMA Trailer

Formaldehyde Products Liab. Litig. (Louisiana Plaintiffs), 713 F.3d 807, 810 (5th

Cir. 2013). Because of the limitations of the Fifth Amendment, there can be no

“policy analysis” of a governmental policy that allows or permits the taking of a

private citizen’s property without “due process” or “just compensation.” Such a

policy would, as a matter of law, be constitutionally impermissible. The district

-17-

court noted that there was no “formal policy, regulation or statute” that required

[the HPD officer] to obtain Patty’s consent prior to using his truck. But there is

such a policy. It is deputized in the Fifth Amendment itself and in the direction

given to the HPD officer who decided he did not have to follow what he knew

existed. And nobody, law enforcement officer or not, has the discretion to violate

the Constitution.

Conclusion

The policy of our government is stated unequivocally in the Constitution

itself. The Government has no “discretion” to simply commandeer “private

property” without either “due process” or “just compensation.” Or, as stated more

poignantly by Chief Justice Roberts, “[t]he Government has a categorical duty to

pay just compensation when it takes your car.” Horne, 135 S. Ct. at 2426

emphasis added). The DEA did not take Craig Patty’s car. It took his truck.

Therefore, whether the claim is analyzed as a direct claim under the Fifth

Amendment, or a statutory claim under the FTCA, the summary judgment in this

case is erroneous, patently unjust, and unfair, and the decision of the court below

should be reversed, rendered as to liability, and remanded for a trial to determine

damages.

// // // //

-18-

Respectfully submitted,

THE VICKERY LAW FIRM /s/ Arnold Anderson Vickery Arnold Anderson Vickery Texas Bar No. 20571800 Email: andy@justiceseekers.com Fred H. Shepherd Texas Bar No. 24033056 Email: fred@justiceseekers.com 10000 Memorial Dr., Suite 750 Houston, TX 77024-3485 Telephone: 713-526-1100 Facsimile: 713-523-5939 Counsel for Appellants

Certificate of Service I certify that on the 7th day of August, 2015, Appellant’s Brief was electronically filed with the Clerk using the CM/ECF system, which automatically sent email notifications of such filing to the following attorneys of record:

Steve I. Frank, Esq. Fred T. Hinrichs, Esq. U.S. Attorney’s Office 1000 Louisiana St., Suite 2300 Houston, Texas 77002 Counsel for Defendant-Appellee

/s/ Arnold Anderson Vickery Arnold Anderson Vickery

-19-

Certificate of Compliance As required by FED. R. APP. P. 32(a)(7)(c), I certify that Appellant’s brief has been prepared in proportionally spaced typeface in Times New Roman 14 using Microsoft Word 2010 and the total word count is 4,204. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry.

/s/ Arnold Anderson Vickery Arnold Anderson Vickery

-20-