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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
_______________________________________________________________
APPELLANTS 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. Attorneys Office
1000 Louisiana St., Suite 2300
Houston, TX 77002
Counsel for Defendant-Appellee
/s/ Arnold Anderson Vickery
Arnold Anderson Vickery
Counsel for Plaintiff-Appellant

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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
incredible 1 policy implications of the decision below, counsel respectfully submit
that oral argument would be beneficial in this case.

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 citizens fundamental rights.
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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 GOVERNMENTS CONDUCT CONSTITUTED AN


UNCONSTITUTIONAL TAKING............................................................ 7
A.

The Governments Temporary Taking of Pattys Truck


Is Compensable. ................................................................................... 7

B.

The Government Owes Patty Just Compensation in an


Amount to be Determined by a Jury................................................... 10

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II.

THE DISTRICT COURTS DETERMINATION THAT THE HPD


OFFICERS ACTIONS AND INACTIONS CONSTITUTE A
DISCRETIONARY FUNCTION OF THE UNITED STATES
GOVERNMENT WAS ERRONEOUS. ...................................................... 14

CONCLUSION....................................................................................................... 18
Certificate of Service. ............................................................................................. 19
Certificate of Compliance. ...................................................................................... 20

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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 Commn 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
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Richards v. United States,


369 U.S. 1 (1962). ........................................................................................ 14
Starnes v. United States,
139 F.3d 540 (5th Cir. 1998). ......................................................................... 7
TahoeSierra 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

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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. Plaintiffs 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 DEAs taking of Pattys 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 Pattys

Amended Complaint, ROA.181-86, in Plaintiffs Response to the United States

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Motion of Summary Judgment, ROA.607-28, and in the lower courts 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 citizens truck one of two that Pattys fledgling business desperately
needed without his consent or knowledge for an undercover controlleddelivery 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

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.
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owner about its whereabouts and its use. 3 More troubling, although the Officer
knew if were going to use somebody elses 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 didnt 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).
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officer shot another undercover law enforcement officer by mistake. Pattys 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, Pattys
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 Craigs 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.

Notably, ROA.778-79, is the Governments own expert witness report in this


case. Even he admitted that Patty suffered anxiety and depression related to this
incident.
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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 Pattys 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.

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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 Governments 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

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


statutory exception to the FTCAs waiver of sovereign immunity.
Scope of Review
This Courts 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
GOVERNMENTS
CONDUCT
UNCONSTITUTIONAL TAKING.

CONSTITUTED

AN

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 courts 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 Governments Temporary Taking of Pattys Truck Is

Compensable. The Fifth Amendment provides that private property may not be
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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 governments 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 governments 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 Judges opinion summed it up as follows:

In spite of the fact that the Fifth Amendment limitation was contained in Pattys
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.
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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 Governments taking of Craig Pattys 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 Governments public use of Pattys 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. TahoeSierra 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

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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 Governments use of his
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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 Breyers 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 governments temporary
taking of a laundry business.
But what about the very significant non-economic damages?

Justice

Frankfurters 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

These damages are described in Plaintiffs expert report. ROA.771-77.


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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.

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 ones land). In Loretto, the High Court acknowledged that,
temporary takings were invariably situations in which the damages constituting
just compensation included consequential damages.
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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 DEAs temporary but physical appropriation of Pattys 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.

An example of a courts use of foreseeability as a barometer of the nature and


extent of a constitutional taking and damages resulting therefrom is the Federal
Circuits recent opinion on remand from the Supreme Court, which had reversed
the circuit courts prior holding that a temporary flooding was not a taking.
Arkansas Game & Fish Commn 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
governments actions. Id. citing Moden v. United States, 404 F.3d 1335, 1343
(Fed.Cir. 2005).
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II.

THE DISTRICT COURTS DETERMINATION THAT THE HPD


OFFICERS 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 persons 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 Pattys 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

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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

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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 citizens 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 Governments 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

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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 were going to use somebody elses
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 citizens property without due process or just compensation. Such a
policy would, as a matter of law, be constitutionally impermissible. The district

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court noted that there was no formal policy, regulation or statute that required
[the HPD officer] to obtain Pattys 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 Pattys 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.
//
//
//
//
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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, Appellants 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. Attorneys Office
1000 Louisiana St., Suite 2300
Houston, Texas 77002
Counsel for Defendant-Appellee
/s/ Arnold Anderson Vickery
Arnold Anderson Vickery

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Certificate of Compliance
As required by FED. R. APP. P. 32(a)(7)(c), I certify that Appellants 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

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