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blindly insensitive to the concerns of the Sabow family.2 All three investigations one conducted by the NIS and two conducted by the Office of the Judge Advocate General ("JAG") concluded that Colonel Sabow committed suicide.3

Soon after the first investigation began, Colonel Sabow's brother John David Sabow ("Dr. Sabow") arrived to assist his sister-in-law. A board-certified neurosurgeon in South Dakota, Dr. Sabow soon began to believe that his brother had not committed suicide, but rather may have been the victim of foul play. Dr. Sabow pressed military authorities, including General Adams, for answers to questions about the facts and circumstances surrounding his brother's death.*

Dissatisfied with the responses he was receiving, Dr. Sabow threatened to "go public" with his concerns. This was immediately brought to the attention of General Adams, who attempted to diffuse the situation by proposing a meeting with the family and responsible investigative officials. The meeting, General Adams promised, would "clear the air" about the investigation.

The Complaint alleged, inter alia, that the crime scene was not secured, important evidence was moved and manipulated before pictures of the scene were taken, no effort was made to securely handle critical evidence including the shotgun found at the scene (on which, curiously, no prints of Colonel Sabow were ever found) — and that Mrs. Sabow was subjected to a withering investigative interview without benefit of any support or assistance. In addition, the body of Colonel Sabow was left in the sun for more than seven hours.

The NIS completed its report on the death of Colonel Sabow on August 27, 1991. On January 23, 1991, the Commander's Office of the Marine Corps Air Bases Western Area instructed JAG to begin its own investigation into Colonel Sabow's death. That investigation was completed on February 7, 1991. On December 10, 1991, a second JAG investigation was initiated, and on December 13, 1991 that investigation was closed.

*He questioned, for example, the presence of large amounts of blood in Colonel Sabow's lungs a fact physically incompatible, according to his medical training, with a single self-inflicted wound to the face severing the brain stem.

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Unbeknownst to the Sabow family. General Adams actually planned to convince them that “going public" would only mean the release of terribly damaging information about Colonel Sabow's alleged activities prior to his death. The meeting took place on March 9, 1991 in General Adams' office at MCAS-El Toro. Lasting nearly five hours, during which time neither Mrs. Sabow nor Dr. Sabow were offered a recess or refreshments, General Adams allegedly went on a verbal tirade. Ignoring that Colonel Sabow had not even been formally accused, let alone convicted, of any criminal offense, General Adams is alleged to have continually referred to him as a "crook" and a "felon."

Sometime after the meeting, General Adams learned that Dr. Sabow had apparently made an inquiry at MCAS-Yuma, Arizona about Adams' own medical records. In response, General Adams allegedly ordered military officials under his command to advise him how he could "go after" Dr. Sabow's medical license. The Sabows allege that the General planned to draft a letter to South Dakota medical licensing authorities making the strongest complaint that could be mustered against Dr. Sabow, confront him, and threaten to send it unless Dr. Sabow ceased all questioning of the investigation into Coloncl Sabow's death and left the El Toro arca. Although the letter was never sent, General Adams allegedly allowed a copy of it to "fall into Dr. Sabow's hands."

In June 1994, Sarah Sabow, Dr. Sabow and other members of the family brought this action under the FTCA seeking damages under the tort theories of negligent infliction of emotional distress, intentional infliction of emotional distress, negligent handling of human remains, and personal injury. The district court dismissed the Sabows' action in its entirety for lack of subject matter jurisdiction and for failure to state a claim. For the reasons set forth below, we affirm the dismissal of those claims generally based on the conduct of the investigation into the death of Colonel Sabow, but reverse as to those that have as their nexus the actions of General

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Adams, including his statements at the March 9 meeting and his actions and statements directed toward Dr. Sabow.

II. STANDARDS OF REVIEW

A dismissal for failure to state a claim is reviewed de novo. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995). Review is limited to the contents of the complaint. Argabright v. United States, 35 F.3d 472, 474 (9th Cir. 1994). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. National Wildlife Federation v. Espy, 45 F.3d 1337, 1340 (9th Cir. 1995). A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his or her claim which would entitle plaintiff to relief. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995).

The existence of subject matter jurisdiction is a question of law reviewed de novo. Valdez v. United States, 56 F.3d 1177, 1179 (9th Cir. 1995). The district court's factual findings on all jurisdictional issues must be accepted unless clearly erroncous. Nike, Inc. v. Comercial Iberica de Exlusivas, 20 F.3d 987, 990 (9th Cir. 1994).

III. DISCUSSION

The district court dismissed each of the Sabows' claims on one of two grounds. The court dismissed most of the Sabows' claims for lack of subject matter jurisdiction pursuant to the discretionary function and intentional torts exceptions to the FTCA. See 28 U.S.C. § 2680(b) (discretionary function exception); 28 U.S.C. § 2680(h) (intentional torts exception). As to those claims to which the court determined no FTCA exception applied, the court held that the Sabows had failed to state a claim under California tort law and issed those claims pursuant to § 1346(b) of the FTCA... 28 U.S.C. § 1346(b) (requiring that FTCA claim comprise a cause of

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action “in accordance with the law of the place where the act or omission occurred”). We turn to an examination of whether the Sabows established subject matter jurisdiction and an actionable cause under California tort law as to each of the four claims alleged in their complaint.

A. NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS

1. The NIS and JAG Investigations

Does The FTCA's Discretionary Function Exception Strip The District Court of Subject Matter Jurisdiction Over The Sabows' Negligent Infliction Claim?

Statutory Framework and Legal Standards

[1] The FTCA is a waiver of sovereign immunity, limited in part by the discretionary function exception. The discretionary function exception covers any FTCA claims "based upon the exercise or performance or failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employce of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). Where the discretionary function exception to the FTCA applies, no federal subject matter jurisdiction exists. In re Glacier Bay, 71 F.3d 1447, 1450 (9th Cir. 1995). While plaintiff bears the initial burden of proving subject matter jurisdiction under the FTCA, "... the United States bears the ultimate burden of proving the applicability of the discretionary function exception .. Prescott v. United States, 973 F.2d 696, 702 (9th Cir. 1992).

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Whether the Sabows' complaint states a claim for negligent infliction of emotional distress is not at issue on appeal, and thus is not discussed below.

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We use a two-step analysis to determine whether challenged conduct falls under the discretionary function exception. First, we ask whether the challenged actions involve “an element of judgment or choice." United States v. Gaubert, 499 U.S. 315, 322 (1991) (quotation omitted). This “discretionary act" requirement is not satisfied if “a federal statute, regulation, or policy specifically prescribes à course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive." Berkovitz v. United States, 486 U.S. 531, 536 (1988). If the challenged actions involve an element of choice or judgment, we then must determine "whether that judgment is of the kind that the discretionary function exception was designed to shield." Gaubert, 499 U.S. at 322-23. More specifically, "if the judgment involves considerations of social, economic, or political policy, the exception applies." In re Glacier Bay, 71 F.3d at 1450. Both the discretionary act prong and the policy judgment prong of the discretionary function exception must be satisfied before the exception will apply.

Analysis

Were The Investigative Acts Of The NIS And JAG Discretionary Acts?

The Sabows argue that the NIS and JAG officers investigating Colonel Sabow's death were required to follow specific investigative regulations and directives detailed in both the NIS investigative manual and the JAG investigative manual. Accordingly, the Sabows conclude that the discretionary act prong is not satisfied as to any action (or inaction) that did not conform to procedures set out in the NIS or JAG investigative manuals. The government argues that because the NIS and JAG manuals only provide general guidelines for investigative activity while leaving significant discretion to the field agents to conduct an investigation, the discretionary act prong is satisfied. We review the relevant provisions of the NIS and

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