Petition for Writ of Certiorari — Stephen Linder, Petitioner v. United States
Supreme Court briefMar 2, 2020
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App. 1
In the
United States Court of Appeals
For the Seventh Circuit
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No. 15-1501
[SEAL]
STEPHEN LINDER,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14-cv-2714—Joe Billy McDade, Judge.
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ARGUED APRIL 1, 2019—DECIDED SEPTEMBER 9, 2019
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Before EASTERBROOK, SYKES, and BRENNAN, Circuit
Judges.
EASTERBROOK, Circuit Judge. While tracking down
a fugitive, Deputy Marshal Stephen Linder interrogated the fugitive’s father. Another deputy marshal
later stated that he had seen Linder punch the father
in the face. After an investigation by the Marshals
Service and the Inspector General of the Department
of Justice, Linder was indicted for federal felonies (witness tampering and using excessive force in violation
of the father’s civil rights). The Service put Linder on
App. 2
leave, and Darryl McPherson, the U.S. Marshal for the
Northern District of Illinois, instructed other deputies
not to communicate with Linder or his lawyers without
approval. Frustrated by this barrier to getting information from potential witnesses, Linder’s lawyers
asked the district court to dismiss the indictment as a
sanction. That was done, see 2013 U.S. Dist. LEXIS
29641 (N.D. Ill. Mar. 5, 2013), the United States did not
appeal, and Linder returned to work. He remains employed as a deputy marshal.
Linder then filed a Bivens action, see Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Marshal McPherson
and three other persons. Later he added a suit against
the United States under the Federal Tort Claims Act.
28 U.S.C. §§ 1346(b), 2401, 2671–80. The district court
dismissed all of Linder’s claims. Those under Bivens
have been abandoned on appeal, and we have changed
the caption to show that the litigation is now against
the United States alone. The statutory claim failed, the
district court held, because §2680(a) provides that the
Act does not apply to “[a]ny claim based upon an act or
omission of an employee of the Government, exercising
due care, in the execution of a statute or regulation,
whether or not such statute or regulation be valid, or
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.” The judge concluded that, when deciding
when federal employees must seek permission to
App. 3
talk with Linder or his lawyer before trial, Marshal
McPherson had exercised a discretionary function.
Linder’s suit accuses the United States of two
torts: malicious prosecution and intentional infliction
of emotional distress. His principal argument is that
the discretionary-function exemption of §2680(a) does
not apply to suits for malicious prosecution. He relies
on §2680(h), which says that “The provisions of this
chapter and section 1346(b) of this title shall not apply
to— . . .
Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with
contract rights: Provided, That, with regard to
acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and
section 1346(b) of this title shall apply to any
claim arising, on or after the date of the enactment of this proviso, out of assault, battery,
false imprisonment, false arrest, abuse of
process, or malicious prosecution. For the purpose of this subsection, “investigative or law
enforcement officer” means any officer of the
United States who is empowered by law to
execute searches, to seize evidence, or to make
arrests for violations of Federal law.
The first clause of §2680(h) takes malicious prosecution outside the scope of the FTCA, and the proviso
puts it right back in again if an “investigative or law
enforcement officer” is at fault. Marshal McPherson
App. 4
was a law enforcement officer, and it follows, Linder
contends, that his claim is covered by the Act whether
or not McPherson was exercising a discretionary function. This contention has the support of Nguyen v.
United States, 556 F.3d 1244 (11th Cir. 2009), which
holds that the proviso overrides the rest of §2680.
Nguyen observes that §2680(h) tells us that “[t]he
provisions of this chapter”—which is to say, 28 U.S.C.
§§ 2671–80—do not apply to malicious-prosecution
suits, except to the extent saved by the proviso. It follows, Nguyen concludes, that the exceptions elsewhere
in §2680, such as the discretionary-function exception,
do not apply to the suits saved by the proviso. But
that’s just not what the proviso says, and we have it on
the highest authority that we must apply this subsection to mean neither more nor less than what the language tells us. See Millbrook v. United States, 569 U.S.
50, 56 (2013).
The proviso says that “the provisions of this
chapter and section 1346(b) of this title shall apply to
any claim” (emphasis added) for malicious prosecution
arising out of a law enforcement officer’s acts. “[T]his
chapter” includes §2680(a), the discretionary-function
exemption. This means that discretionary acts by
law-enforcement personnel remain outside the FTCA
by virtue of §2680(a), even though the proviso allows
other malicious-prosecution suits. And so multiple
courts of appeals have held. See Medina v. United
States, 259 F.3d 220, 224–26 (4th Cir. 2001); Campos v.
United States, 888 F.3d 724, 737 (5th Cir. 2018); Gasho
v. United States, 39 F.3d 1420, 1434–35 (9th Cir. 1994);
App. 5
Gray v. Bell, 712 F.2d 490, 507–08 (D.C. Cir. 1983).
Nguyen stands alone, and we think that the other circuits have this right.
It isn’t possible to read §2680(h) as making all of
the Federal Tort Claims Act inapplicable to maliciousprosecution suits arising from law-enforcement activity. The proviso brings back what the opening clause
knocks out—and what it brings back is §1346(b) plus
all of Chapter 171, which includes §§ 2671 through
2680. Any other reading would make a hash of the statute. Section 1346(b) is the jurisdictional footing of the
suit; if it is really knocked out and not brought back
by the proviso, there would not be a basis for subjectmatter jurisdiction. If §2675 is knocked out and not
brought back by the proviso, the administrative-claim
requirement of the FTCA, see McNeil v. United States,
508 U.S. 106 (1993), would vanish. The statute of limitations that makes this administrative-claim requirement work, see 28 U.S.C. §2401(b); United States v.
Kawi Fun Wong, 135 S. Ct. 1625 (2015), would vanish.
None of these consequences—and there would be
more—could be imputed to §2680(h) with a straight
face. We therefore read the proviso to mean what it
says: When malicious-prosecution claims arise from
law-enforcement activity, the proviso applies the whole
of the FTCA, except for the part of §2680(h) that precedes the proviso.
This brings us to the question whether, as the district judge held, Marshal McPherson was exercising
a discretionary function within the scope of §2680(a).
The discretionary-function exemption under that
App. 6
subsection has two components: first, the assertedly
wrongful conduct must entail an element of judgment
or choice; second, that discretion must be based on considerations of public policy. See, e.g., United States v.
Gaubert, 499 U.S. 315, 322–23 (1991); Berkovitz v.
United States, 486 U.S. 531, 536–37 (1988); Reynolds v.
United States, 549 F.3d 1108, 1112 (7th Cir. 2008). The
district judge found that Marshal McPherson’s instruction satisfies both components. A U.S. Marshal
has discretion to decide how personnel under his command interact with suspended officers (including those
facing criminal charges); second, that discretion rests
on judgments about how best to operate the Marshals
Service so that it achieves its functions with a minimum of internal discord.
Marshal McPherson did not make things up on the
spur of the moment; he consulted and attempted to follow the rules (found in USMS Directive 2.2, covering
“Misconduct Investigations”, which refers in turn to
still other regulations and procedures) specifying how
to conduct internal investigations. Many of the steps
that Marshal McPherson took were performed under
the direction of the Marshals Service’s General Counsel, and §2.2.F.1.c requires these instructions to be
implemented. Section 2680(a) tells us that there is no
liability even if a regulation or directive is invalid, and
even if the discretion conferred under it has been
abused. When dismissing Linder’s indictment in 2013,
the district court suggested in some places that the
Directive is invalid and in others that the discretion it
confers had been abused by the General Counsel or the
App. 7
U.S. Marshal, but neither of these considerations permits tort liability given §2680(a).
Still, Linder asserts, no one has discretion to
violate the Constitution—and, when dismissing the indictment, the district court stated that the no-contactwithout-approval order violated the Confrontation
Clause of the Sixth Amendment. 2013 U.S. Dist. LEXIS
29641 at *175. This is problematic. Compulsory process is a trial right; the Constitution does not entitle a
criminal defendant to interview potential witnesses or
take their depositions before trial. See, e.g., Weatherford v. Bursey, 429 U.S. 545, 559–61 (1976); United
States v. Ruiz, 536 U.S. 622, 629 (2002). The district
judge believed that the no-contact-without-approval
order “intimidated” other Deputy U.S. Marshals, reducing the probability that they would be forthcoming at
trial, but that belief was never put to the test by holding a trial to see what evidence Linder could obtain.
The district court’s order dismissing the indictment
did not mention Weatherford or Ruiz. We do not decide
whether the district court’s order in 2013 was correct,
but it did not rest on a conclusion that the Marshals
Service had violated any statute or a discovery order
under Fed. R. Crim. P. 15 or 16.
What’s more, the theme that “no one has discretion to violate the Constitution” has nothing to do with
the Federal Tort Claims Act, which does not apply to
constitutional violations. It applies to torts, as defined
by state law—that is to say, “circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where
App. 8
the act or omission occurred” (28 U.S.C. §1346(b)(1);
emphasis added). The Constitution governs the conduct of public officials, not private ones.
The limited coverage of the FTCA, and its inapplicability to constitutional torts, is why the Supreme
Court created the Bivens remedy against individual
federal employees. And when, in the wake of Bivens,
Congress adopted the Westfall Act to permit the Attorney General to substitute the United States as a
defendant in lieu of a federal employee, it prohibited
this step when the plaintiff ’s claim rests on the Constitution. 28 U.S.C. §2679(b)(2)(A). This leaves the FTCA
as a means to seek damages for common-law torts,
without regard to constitutional theories. And, now
that all claims against the individual defendants have
been abandoned, that’s what this suit is.
Still, Linder insists, just as no one has discretion
to violate the Constitution, no one has discretion to
commit a tort such as malicious prosecution or intentional infliction of emotional distress. That’s true, in
the sense that a tort is a civil wrong. No one should
commit a civil wrong. But unless §2680(a) is to be
drained of meaning, it must apply to discretionary acts
that are tortious. That’s the point of an exception: It
forecloses an award of damages that otherwise would
be justified by a tort. Nothing in subsection (a) suggests that some discretionary but tortious acts are
outside the FTCA while others aren’t. See Kiiskila v.
United States, 466 F.2d 626 (7th Cir. 1972).
App. 9
The upshot of §2680(a) is that, when some legal
doctrine creates discretion, the fact that the discretion
was misused and a tort ensued does not lead to liability
for the Treasury. No one can doubt that the investigation of (potential) crimes, and the management of a
federal workforce in which one employee is a (potential) criminal, are discretion-laden subjects. There is no
one right way to investigate an allegation of crime, no
one right way for federal employees to relate to their
colleagues who have been suspended pending the resolution of criminal charges. Our opinion in Reynolds
shows that criminal investigation and prosecution are
rife with legitimate discretion, and that how discretion
is exercised rests on potentially contestable visions of
wise policy. Other circuits agree with that view. See,
e.g., O’Ferrell v. United States, 253 F.3d 1257 (11th Cir.
2001).
To say that criminal investigation and prosecution
are suffused with discretion does not imply that every
possible step must be within the scope of §2680(a).
Reynolds makes this point in holding that although
many prosecutorial steps are discretionary, knowingly
providing false information (i.e., perjury) is not. A step
“sufficiently separable” from legitimate discretion can
be actionable, Reynolds concludes (549 F.3d at 1113),
even though bona fide discretion is not. Linder wants
us to use this exception to swallow the rule, with the
theme that no one has discretion to commit a tort. But
there is a blanket rule against perjury, in a way that
there is not a mechanical rule about how a federal
App. 10
workforce should be run while one employee is under
indictment.
When dismissing the indictment the district court
did not find the violation of a rule such as “don’t lie under oath.” Instead it found that management’s instructions to the workforce unduly undermined Linder’s
ability to gather evidence. Perhaps a different way of
limiting contact with other deputies would have been
proper. Perhaps a different judge would have denied
the motion to dismiss the indictment, observing that
the Marshals Service had not violated any discovery
order. Because Linder does not contend that the United
States violated any firm rule limiting the scope of discretion, the sort of “sufficiently separable” civil wrong
discussed in Reynolds has not been made out.
We have so far not mentioned Linder’s contention
that Special Agent Kevin Shirley, who led the criminal
investigation on behalf of the Inspector General and
the Civil Rights Division of the Department of Justice,
committed perjury in affidavits he submitted to the
district court in connection with Linder’s motion to
dismiss the indictment. We must assume that Linder
is correct in labeling some statements “perjury,”
though that characterization has not been tested;
Judge Kendall did not find, when dismissing the indictment, that Shirley had lied under oath. Perjury is
not a discretionary act, as we have explained, and is
not covered by §2680(a). But it is also not a tort when
it is harmless. Linder prevailed in his effort to have the
indictment dismissed. No harm, no tort. See, e.g.,
Saunders-El v. Rohde, 778 F.3d 556, 561 (7th Cir. 2015).
App. 11
(To the extent that Linder’s claim rests on any of
Shirley’s investigatory actions, our discussion of the
discretionary-function exemption applies to him and
need not be repeated.)
Congress might have chosen to provide financial
relief to all persons who are charged with crime but
never convicted. The Federal Tort Claims Act does not
do this, however, and Linder has not claimed that he
is entitled to relief under 28 U.S.C. §§ 2513 and 1495,
which apply to persons able to prove their innocence.
The judgment of the district court is therefore
AFFIRMED.
App. 12
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
[LOGO]
Everett McKinley Dirksen
United States Courthouse
Room 2722 –
219 S. Dearborn Street
Chicago, Illinois 60604
Office of the Clerk
Phone: (312) 435-5850
www.ca7.uscourts.gov
[SEAL]
FINAL JUDGMENT
September 9, 2019
Before:
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
STEPHEN LINDER,
Plaintiff – Appellant
No. 15-1501
v.
UNITED STATES OF AMERICA,
Defendant – Appellee
Originating Case Information:
District Court No: 1:14-cv-02714
Northern District of Illinois, Eastern Division
District Judge Joe Billy McDade
The judgment of the District Court is AFFIRMED,
with costs, in accordance with the decision of this court
entered on this date.
App. 13
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STEPHEN B. LINDER,
)
)
Plaintiff,
)
v.
)
)
DARRYL McPHERSON,
KEVIN SHIRLEY, AEJEAN )
CHA, MARK BLUMBERG, )
)
and the UNITED STATES
)
OF AMERICA
)
Defendants.
)
Case No. 14-cv-2714
ORDER & OPINION
(Filed Jan. 29, 2015)
This matter is before the Court on Defendants’
Darryl McPherson, Kevin, [sic] Shirley, Aejean Cha,
and Mark Blumberg (“the Individual Defendants”)
Motion to Dismiss (Doc. 13) and the United States’
Motion to Dismiss (Doc. 23). Plaintiff filed responses
in opposition (Docs. 19, 27), to which the respective Defendants filed replies (Docs. 24, 28). For the reasons
stated below, both motions are granted.
INTRODUCTION AND PROCEDURAL HISTORY
This case emerges from the United States’ failed
prosecution of Deputy United States Marshal Stephen
App. 14
B. Linder (“Plaintiff ” or “Linder”). A grand jury indicted Linder on January 2012 on charges of excessive
force and tampering with witnesses. The indictment
was based, in part, on allegations that Linder had used
excessive force against the father of a fugitive on July
8, 2010. On March 5, 2013, Judge Virginia Kendall of
the Northern District of Illinois dismissed the indictment against Linder on the ground that government
employees involved in the prosecution had violated his
Sixth Amendment right to compulsory process of witnesses and his Fifth Amendment right to due process.
Linder has brought this Complaint based on the actions taken by Defendants as part of this prosecution.
Linder alleges, among other things, that Marshal
McPherson conducted an improper preliminary investigation, improperly assisted in the subsequent investigation of the incident, and sent an improper email
which instructed United States Marshal Services
(“USMS”) employees to not speak with Linder or his
attorneys. Linder alleges that Shirley, Cha, and Blumberg intimidated and coerced witnesses into providing
false information about the incident, intimidated witnesses so that they would not cooperate with Linder
and his defense team, and that Shirley submitted affidavits in the criminal case that contained knowingly
false statements.
Plaintiff filed his first Complaint pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971) on April 15, 2014, alleging that the Individual Defendants violated his rights under the Fifth
and Sixth Amendments. (Doc. 1). On August 7, 2014,
App. 15
Plaintiff amended his Complaint to add claims against
the United States under the Federal Torts Claims Act
(FTCA) for malicious prosecution and intentional infliction of emotional distress. (Doc. 12). All Defendants
named in the First Amended Complaint have filed Motions to Dismiss for failure to state a claim upon which
relief can be granted. (Docs. 13, 23).
BACKGROUND1
Linder began his employment with the USMS in
April of 2003. Starting in 2007, he worked as part of
the Great Lakes Regional Task Force (“Task Force”), a
USMS-led conglomerate of law enforcement agencies
tasked with capturing violent fugitives in and around
Chicago.
1
Applying the legal standard set forth below, the facts are
taken from Plaintiff ’s Amended Complaint and all reasonable inferences are drawn in his favor. In their Motions to Dismiss, Defendants requested that the Court also consider a number of
documents that it argues Plaintiff incorporated into his Complaint by reference. This includes materials filed in Plaintiff ’s
criminal case, United States v. Linder, No. 1:12-CR-22 (N.D. Ill.),
Judge Kendall’s findings of fact in her order dismissing Plaintiff ’s
indictment, United States v. Linder, No. 12-cr-22, 2013 WL
812382 (N.D. Ill. Mar. 5 2013), and certain testimony from the
hearing Judge Kendall held on the motion to dismiss the indictment. The facts that Defendants wish to introduce are not material to the Court’s decision. Therefore, the Court does not consider
them. The only additional document that the Court will consider
is U.S. Marshal’s Policy Directive 2.2, which Plaintiff incorporates by reference into his Complaint and upon which both Plaintiff and the United States rely in their briefs. (See Docs. 23, 27).
App. 16
On July 8, 2010, Linder and other Task Force
members were in Cicero, Illinois, searching for a fugitive who was wanted for murder. As part of the investigation, Linder questioned Santiago Solis, the
fugitive’s father, in the back seat of a passenger van.
Secret Service Agent Eric Petkovic and Deputy U.S.
Marshal Harry Sims were both seated in the front of
the van while Linder questioned Solis. Two days later,
Sims reported to another Deputy Marshal, Deputy
Stenson, that he had seen Linder strike Solis. Sims
prepared a report charging that Linder had used excessive force during his interview of Solis, and submitted it to Deputy U.S. Marshal Ken Robinson. Sims later
told Stenson that he had “jumped the gun” by filing the
report that Linder used excessive force, and that he
had not filed an accurate and complete report.
After receiving Sims’ report, Robinson referred it
to U.S. Marshal Daryl McPherson and Chief Deputy
Marshal John O’Malley. O’Malley referred the report
to the USMS Office of Inspection, and McPherson then
became personally involved in investigating Sims’ allegations. First, he summoned Linder to his office and
questioned him. During this questioning, neither
McPherson nor any of the other USMS employees that
were present advised Linder of any rights he might
have. Later, McPherson directed two Deputy U.S. Marshals – Paul Banos and Rick Walenda – to interview
Solis, the alleged victim. Banos and Walenda interviewed Solis in Cicero on July 13, 2010. They reported
to McPherson that Solis did not say anything about an
alleged assault until the third time he was asked about
App. 17
it, and then said that a Cicero police officer had hit
him. They also reported that Solis did not have any injuries to his face, and provided McPherson with pictures of his face. McPherson sent Banos and Walenda
back to Cicero to take more pictures of Solis. McPherson reassigned Linder from the Task Force to the
USMS District Office on July 15, 2010.
The USMS referred the complaint that Linder had
used excessive force to the Department of Justice’s
Office of the Inspector General. On July 26, 2010, the
OIG announced that it would conduct an official investigation into the complaint. Defendant Special Agent
Kevin Shirley conducted the investigation. The Complaint alleges that McPherson assisted Shirley in conducting the investigation in a number of ways, and
that the two regularly communicated by email or telephone during an 18-month investigation. As part of his
investigation, Shirley first enlisted McPherson’s help
to “ambush” Linder and interrogate him in an effort to
get him to confess. At Shirley’s request, McPherson
told Linder that he needed to meet with him. Once
Linder arrived to meet with McPherson, McPherson
brought him to meet with Shirley and quickly left.
Shirley later enlisted McPherson’s help in having
him confiscate Linder’s phone and also in helping him
set up meetings with USMS witnesses he wished to interview. Specifically, Shirley notified McPherson of the
employees he wished to interview. McPherson then notified the employees that they would be interviewed by
Shirley and other OIG agents. Shirley allegedly preferred that interviews be set up this way, because
App. 18
USMS witnesses were less likely to decline a voluntary
interview with the OIG after their boss notified them
about it.
Shirley, along with Assistant U.S. Attorneys Cha
and Blumberg, interviewed dozens of witnesses.
Linder alleges that Shirley, Cha, and Blumberg attempted to get witnesses to testify favorably for the
government and discourage them from testifying in
favor of Linder. He also alleges that they intimidated
and harassed witnesses into changing their stories.
A number of witnesses complained about the manner in which Shirley, Cha, and Blumberg treated them.
For example, Ed Farrell, who oversaw the Task Force,
reported that the three conducted their interview with
him in a confrontational manner, accused him of lying,
alleged that he had engaged in wrongdoing, and made
misrepresentations about the availability of immunity.
Lieutenant Ted Stajura testified that Shirley threatened to bring him before the grand jury on bogus
charges. Cook County Sheriff ’s Department Chief of
Police DeWayne Holbrook complained that Shirley engaged in a pattern of intimidation during his interviews. Berwyn Police Detective John Hadjioannou
testified that Shirley intimidated him during his first
interview, and AUSA Blumberg accused him of being a
liar and threatened him with consequences in a second
interview.
The United States secured an indictment against
Linder on January 12, 2012. Following the indictment,
McPherson sent an email to all USMS staff in the
App. 19
Northern District of Illinois that instructed them on
“specific rules that must be adhered to by USMS employees during the pendency of federal criminal proceedings against a DUSM from our district.” (Doc. 12
at ¶ 36). Specifically, the email instructed USMS to restrict personal contact and socialization with Linder
and instructed them to not discuss the case with
Linder’s attorneys without prior approval from USMS
management. McPherson reviewed and approved a
second email which was sent on February 2, 2012. This
email supplemented the original guidance and warned
USMS staff that failure to comply with the original
guidance would “be dealt with through the U.S. Marshals Service’s official discipline process and Employee
Relations.” (Id. at ¶ 37). Linder was put on indefinite
suspension without pay on March 13, 2012.
Linder moved to dismiss the indictment on April
20, 2012, after his defense team unsuccessfully attempted to interview nine potential witnesses. Prior to
a hearing on the motion to dismiss the indictment held
on September 18, 2012, Shirley prepared affidavits for
a number of USMS employees after meeting with them
to discuss their willingness to meet with Linder’s defense team. The affidavits, which were filed in the criminal proceeding, each contained a statement that the
employee did not have information that could be helpful to the defense. Linder alleges that with respect to
two employees – Deputy Paul Zitsch and Banos – these
statements were knowingly false.
During the hearing, a number of witnesses testified that they refused to speak with Linder’s defense
App. 20
team because of the emails sent by McPherson, which
they characterized as defining a U.S. Marshal policy
that they not speak with the defense team, and the tactics of Shirley, Cha, and Blumberg. Judge Kendall dismissed the indictment on March 5, 2013.
LEGAL STANDARD
In ruling on a motion to dismiss for failure to state
a claim pursuant to Federal Rule of Civil Procedure
12(b)(6), “the court must treat all well-pleaded allegations as true and draw all inferences in favor of the
non-moving party.” In re marchFIRST Inc., 589 F.3d
901, 904 (7th Cir. 2009). The complaint must contain “a
short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
To survive a motion to dismiss, a plaintiff ’s complaint must contain sufficient detail to give notice of
the claim, and the allegations must “plausibly suggest
that the plaintiff has a right to relief, raising that possibility above a ‘speculative level.’ ” EEOC v. Concentra
Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). The plausibility standard requires enough
facts “to present a story that holds together,” but does
not require a determination of probability. Swanson v.
Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
Though detailed factual allegations are not needed, a
“formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp., 550 U.S. at 555.
App. 21
DISCUSSION
Linder’s four-count Complaint can be divided into
two sections. In Counts I and II, Linder states constitutional torts against the Individual Defendants. In
Counts III and IV, Linder states common law torts
against the United States pursuant to the FTCA. As
explained in more detail below, Counts I and II are dismissed for the same reason: Linder has failed to allege
constitutional injury and the Individual Defendants
would be entitled to qualified immunity. Similarly,
Counts III and IV are also dismissed for the same reason: the claims are based upon discretionary actions
engaged in by McPherson and Shirley, all of which are
exempt from FTCA liability.
I.
Counts I and II – Bivens Claims Against the
Individual Defendants
Plaintiff ’s first two claims are Bivens claims
against McPherson, Shirley, Cha, and Blumberg for
alleged violations of his Fifth and Sixth Amendment
rights. Defendants have moved to dismiss these
Counts under two theories. First, they argue that no
Bivens remedy exists for these sorts of alleged constitutional violations, and that it would be inappropriate
in these circumstances to create a new one. Second,
they argue that Plaintiff ’s Bivens claims, should they
be appropriate, are barred by qualified immunity. The
Court assumes without deciding that Bivens provides
a cause of action in these circumstances, but concludes
App. 22
that the Individual Defendants are entitled to qualified immunity.
A. Whether a Bivens Cause of Action Exists
The parties have expended a substantial amount
of ink arguing over the appropriateness of a Bivens
remedy in this circumstance. In Bivens, the Supreme
Court recognized an implied private right of action for
damages against federal officers alleged to have violated a person’s Fourth Amendment rights. 403 U.S. at
397. As the Individual Defendants point out, Bivens
remedies are disfavored. See Correctional Srvs. Corp. v.
Malesko, 534 U.S. 61, 70 (2001) (observing that the
Supreme Court has extended the Bivens holding only
twice in 30 years, and otherwise “consistently rejected
invitations to extend Bivens”). This is because the theory under which Bivens was decided has fallen out of
favor with federal courts. See Robinson v. Sherrod, 631
F.3d 839, 842 (7th Cir. 2011) (explaining that “the concept that for every right conferred by federal law the
federal courts can create a remedy above and beyond
the remedies created by the Constitution, statutes, or
regulations” is no longer in favor).
The Supreme Court, in Wilkie v. Robbins, synthesized its case law on implied private rights of action for
damages for constitutional violations. See 551 U.S. 537,
550 (2007). It explained that “any freestanding damages remedy for a claimed constitutional violation has
to represent a judgment about the best way to implement a constitutional guarantee,” and provided two
App. 23
steps for courts to consider before creating new Bivens
remedies. Id. First, courts must consider whether “any
alternative, existing process for protecting the interest
amounts to a convincing reason for the Judicial Branch
to refrain from providing a new and freestanding remedy in damages.” Id. Second, “courts must make the
kind of remedial determination that is appropriate for
a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.” Id.
There is currently no Bivens remedy recognized
for constitutional violations such as those alleged by
Plaintiff, and it is unclear to the Court whether a
Bivens action is appropriate in these circumstances.2
Although Bivens actions are disfavored, the Court is
not convinced that the Seventh Circuit would not authorize such a claim in this context.
The Court first considers whether there is an alternative remedial scheme available to Plaintiff. See
Wilkie, 551 U.S. at 50. The Individual Defendants argue that Plaintiff had an adequate remedy in that he
2
Plaintiff argues that this is not a new context for Bivens,
and points to the fact that the Seventh Circuit has previously allowed Bivens claims based on Brady violations to go forward. (See
Doc. 19 at 9 (discussing Manning v. Miller, 355 F.3d 1028, 1031
n.1 (7th Cir. 2004)). However, the Supreme Court has instructed
that Bivens remedies should be considered in a context-specific
way, even if the alleged violations implicate the same constitutional provision. See FDIC v. Meyer, 510 U.S. 471, 484, 484 n.9
(1994). Therefore, the fact that the Seventh Circuit has previously
recognized a Bivens remedy for Brady violations does not decide
the question of whether one is available in this context.
App. 24
was able to adequately defend himself against criminal
charges and “walked, scot-free.” (Doc. 13 at 10-11). In
support of this position, Defendants rely upon Wilkie,
where the Supreme Court concluded that a landowner
did not have a private right of action against the Bureau of Land Development for retaliating against him
when he exercised his ownership rights over land. 551
U.S. at 549-62. In Wilkie, the Supreme Court identified
four separate groups of difficulties that the plaintiff
faced, one of which was “charges brought against him.”
Id. at 551. It concluded that with respect to those
harms, the plaintiff “had some procedure to defend and
make good on his position.” Id. at 552. Defendants argue that like the plaintiff in Wilkie, the criminal justice
system “in fact afforded [Linder] with a remarkably
comprehensive and effective means of protecting his
rights,” along with “an extraordinary remedy” – the
dismissal of the indictment. (Doc. 13 at 11).
Defendants’ suggestion would leave Plaintiff
without the prospect of a compensatory remedy, the
availability of which has proved to be important in determining whether an alternative remedy is adequate.
In Wilkie, the Supreme Court did not limit its discussion of the plaintiff ’s available remedies to his ability
to defend himself. Rather, it also referred to procedures
to “defend and make good on his position,” which included a possible “state-law action for malicious prosecution,” a remedy that is undoubtedly compensatory.
551 U.S. at 552. Similarly, in Engel v. Buchan, the
Seventh Circuit recently held that a Bivens action
based upon an FBI agent’s Brady violation exists, in
App. 25
part because there was no other compensatory remedy
available. 710 F.3d 698, 705-08 (7th Cir. 2013). The defendant in that case suggested a number of potential
remedial schemes that might provide roughly similar
incentives as money damages to the defendants, including habeas corpus. Id. at 705-06. The court concluded that habeas corpus is not a proper remedial
alternative to a Bivens action because it “is limited to
securing prospective relief from unlawful incarceration,” and does not provide a compensatory remedy. See
id.
The Individual Defendants attempt to cabin Engel
by arguing that its holding should only apply to individuals who have been convicted and incarcerated but
should not apply to individuals who enjoyed the benefits of the criminal justice system’s procedural protections. (See Doc. 13 at 14, n.3). They argue that “Linder’s
situation is thus more like that of the plaintiff in
Wilkie, whom the Supreme Court indicated would not
be entitled to a Bivens remedy based on the government’s unsuccessful prosecution of criminal charges.”
(Id.). This is not a stable distinction for two primary
reasons. First, as discussed above, the Supreme Court
concluded that the plaintiff in Wilkie chose not to
pursue compensatory remedies that might have been
available. Second, it does not make sense to claim that
a federal common law remedy should not be created
because one particular plaintiff asserting a claim was
not incarcerated, as there very well could be future
plaintiffs bringing nearly identical claims who were
incarcerated and later released. The Individual
App. 26
Defendants’ argument says nothing about them. The
fact that Plaintiff was not convicted or incarcerated,
therefore, should not be a relevant consideration on
this point.3
The Individual Defendants have not asserted
other remedial schemes that might provide Plaintiff
with a remedy. Therefore, the Wilkie analysis requires
that the Court proceed to the second step. Under
Wilkie step two, a court must “weigh[ ] reasons for and
against the creation of a new cause of action, the way
common law judges have always done.” 551 U.S. at 554.
The Court thinks it is best to save the task of considering these various prudential and structural factors for
another day, and proceed under the assumption that a
Bivens action is available without deciding whether
one is.
B. Qualified Immunity
When the conduct of government officials “does
not violate clearly established statutory or constitutional rights of which a reasonable person would have
known,” the officials are shielded from liability by the
doctrine of qualified immunity. Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). Even though qualified immunity is an affirmative defense, Plaintiff bears the
burden of defeating it. See Mannoia v. Farrow, 476 F.3d
453, 457 (7th Cir. 2007).
3
It is relevant, however, to Defendants’ qualified immunity,
which will be discussed further below.
App. 27
Whether the Individual Defendants are entitled
to qualified immunity involves two questions: first,
whether their conduct violated a constitutional right,
and second, whether that right was clearly established
at the time it was violated. Alexander v. McKinney, 692
F.3d 553, 555 (7th Cir. 2012). “A negative answer to
either question entitles the official to the defense.” Id.
at 556.
The Court concludes that the Individual Defendants are entitled to qualified immunity because
Plaintiff ’s alleged injuries are not sufficient to establish that the Individual Defendants violated his constitutional rights.
1. Plaintiff ’s Sixth Amendment
Against McPherson
Claim
Plaintiff cannot succeed on his Sixth Amendment
claim against McPherson because he was not convicted
at trial. In fact, Plaintiff did not even proceed to trial,
as Judge Kendall dismissed the indictment before one
began.
In support of his argument that the Individual
Defendants violated his right to compulsory process of
witnesses, Plaintiff relies upon Newell v. Hanks, 283
F.3d 827 (7th Cir. 2002). Newell is a habeas corpus case,
in which a convicted defendant challenged the propriety of his conviction after trial. Id. at 829. The petitioner claimed the government violated his Sixth
Amendment right to compulsory process, because the
prosecutor offered to dismiss pending cocaine charges
App. 28
against a defense witness if he did not testify. Id.at
837-38. Indeed, each of the other cases upon which
Plaintiff relies for his Sixth Amendment claim involve
criminal defendants who were tried in front of and convicted by a jury. See United States v. Heller, 830 F.2d
150 (11th Cir. 1987); United States v. Hammond, 598
F.2d 1008 (5th Cir. 1979); United States v. Morrison,
535 F.2d 223 (3d Cir. 1976); Gregory v. United States,
369 F.2d 185, 188-89 (D.C. Cir. 1966) (explaining that
a criminal trial is “a quest for truth” and finding that
limiting defense counsel’s access to witnesses poses
problems because it denies defendants a fair trial).
Each of these cases speaks to circumstances in
which the government interfered with defendants’
Sixth Amendment right to compulsory process of witnesses or Fifth Amendment right to due process by limiting the manner in which defendants could obtain
evidence for use at trial. Therefore, these cases, like
cases addressing the question of suggestive line-ups,
must be considered in the context of the effect that
they have on a trial. See Hensley v. Carey, 818 F.2d 646,
649 (7th Cir. 1987). In Hensley, the Seventh Circuit explained that a plaintiff who was identified in an unduly
suggestive lineup did not have an actionable claim under § 1983 because the right to be free of an unduly
suggestive lineup is a corollary to his right to a fair
trial and he was never tried. Id. Similarly, the Sixth
Amendment right to the compulsory process of witnesses is tied directly to a defendant’s ability to tell his
story as part of a fair trial. See Newell, 283 F.3d at 837;
Gregory, 369 F.2d at 188.
App. 29
For this reason, Linder cannot state a claim that
McPherson violated his Sixth Amendment right to the
compulsory process of witnesses, and his Bivens claim
based on the Sixth Amendment must be dismissed. See
Hensley, 818 F.2d at 649; Alexander, 692 F.3d at 555.
2. Plaintiff ’s Fifth Amendment Claims
Against the Individual Defendants
Linder’s Fifth Amendment claims must also be
dismissed because he fails to state a cognizable constitutional injury. Specifically, he fails to allege that the
Individual Defendants impaired his liberty.
Plaintiff attempts to frame these allegations as a
claim for evidence fabrication. Recently, the Seventh
Circuit has recognized that plaintiffs can bring due
process claims pursuant to § 1983 based on allegations
of evidence fabrication. See Whitlock v. Brueggemann,
682 F.3d 567, 580 (7th Cir. 2012); Fields v. Wharrie, 740
F.3d 1107, 1113 (7th Cir. 2014). As the Seventh Circuit
explained in Alexander v. McKinney, a person’s due
process rights may be violated when improper actions
taken by government employees result in a person’s
conviction or pre-trial detention. See 692 F.3d 553, 557
(7th Cir. 2012). In Alexander, the Court concluded that
the plaintiff could not state a due process claim because he was only detained in connection to his arrest.
See id. The plaintiffs in Whitlock and Fields, however,
were both incarcerated or detained for substantial periods of time. See 682 F.3d at 571, 582 (explaining that
plaintiffs, who were held in prison for 21 and 17 years,
App. 30
were harmed because fabricated evidence was instrumental in their convictions); 740 F.3d at 1109 (noting
that plaintiff was convicted of two murders and imprisoned for seventeen years). In this case, Plaintiff was
never convicted, nor was he detained for a substantial
period of time. Therefore, the Individual Defendants
did not violate his right to due process because he was
not deprived of his liberty. See Alexander, 692 F.3d at
557.
Plaintiff has seized on to dicta in Whitlock and
Fields to suggest that he can state a due process violation so long as he can demonstrate that he was deprived of his “liberty in some way,” which he argues
includes the harm caused by indictment and the harm
created when he was placed on leave without pay. See
682 F.3d at 580; 740 F.3d at 1112. This argument is
based upon misapplication of Seventh Circuit precedent. As Judge Dow explained in Bianchi v. McQueen,
12-cv-00364, 2014 WL 700628, *9-11 (N.D. Ill. Feb. 24,
2014), Whitlock and Fields must be understood in the
context of the Seventh Circuit’s prior decisions regarding alleged evidence fabrication. Prior to Whitlock,
Judge Dow explained, “it seemed to be settled law . . .
that allegations of evidence fabrication do not state a
cognizable due process injury.” Id. at *9. Rather, a
claim based on evidence fabrication was “in essence,
one for malicious prosecution, rather than a due process violation.” Id. (quoting Brooks v. City of Chicago,
564 F.3d 830, 833 (7th Cir. 2009)). Judge Dow explained that after Whitlock, any claim based on evidence fabrication that results in post-arrest detention
App. 31
can be brought as a due process violation. However,
claims based on evidence fabrication that do not result
in post-arrest detention or conviction cannot be
brought as due process claims and instead must be
brought as malicious prosecution claims. See id. at *11.
The dicta upon which Plaintiff relies in Fields
comes from Julian v. Hanna, 732 F.3d 842, 847 (7th Cir.
2013). In Julian, the Seventh Circuit concluded that
Indiana’s false arrest and false imprisonment laws
provided a plaintiff with an inadequate remedy for malicious prosecution and therefore allowed the plaintiff
to bring the claim pursuant to § 1983. Id. It concluded
that damages for malicious prosecution start with a
person’s arrest and continue until pending charges
are dismissed. Id. As Judge Dow explained, Julian is
among those cases in which a malicious prosecution
claim can be brought based upon that harm but a
stand-alone due process claim could not be brought in
the absence of a conviction or the deprivation of liberty.
Bianchi, 2014 WL 700628 at *11.
The Court agrees with and adopts Judge Dow’s
analysis. In each case that Plaintiff cites for the proposition that he can proceed with a due process claim in
the absence of a conviction, the plaintiffs were either
convicted or subjected to pre-trial detention that deprived them of their liberty. See Saunders v. City of
Chicago, 12-cv-958, 2014 WL 3535723, *1 (N.D. Ill. July
11, 2014) (allowing plaintiffs to proceed on due process
claim where plaintiffs spent more than sixteen years
in prison); Armour v. Country Club Hills, 11-c-5029,
2014 WL 63850, *2 (N.D. Ill. Jan 8, 2014) (allowing
App. 32
plaintiff who spent fourteen months in pretrial detention to proceed on due process claim); Bamberg v. City
of Evanston, 13-c-7650, 2014 WL 3953927, *2 (N.D. Ill.
Aug. 13, 2014) (plaintiff bringing due process claim
held in pre-trial detention for twenty-six months following arrest). Meanwhile, in another case, Judge
Lefkow refused to allow a plaintiff ’s due process claim
to go forward even though that plaintiff was convicted
of a misdemeanor, because the plaintiff was never detained. See Miles v. McNamara, 13-cv-2395, 2014 WL
948884, *6 (N.D. Ill. Mar. 11, 2014). Judge Lefkow,
adopting the approach taken by Judge Dow in Bianchi,
restricted the constitutionally cognizable injury to incarceration. Id. Therefore, she concluded that “it cannot be said that [the plaintiff ] was deprived of his
liberty in the same way as the plaintiffs in Whitlock
and Fields who were all incarcerated for at least 17
years,” because the plaintiff was only detained in connection with his arrest but not in connection to his subsequent conviction. Id.
Supposing that Plaintiff has pled a deprivation of
liberty sufficient to state a due process claim would not
help Plaintiff. Plaintiff argues that he had a liberty interest in his employment as a United States Marshal,
which was harmed when he was placed on leave without pay. (Doc. 19 at 16-18). He primarily relies upon an
Eighth Circuit substantive due process case, Moran v.
Clarke, 296 F.3d 638 (8th Cir. 2002), as well as a number of cases from the Northern District of Illinois,
which hold that suspension without pay can constitute
a deprivation of a liberty interest in violation of
App. 33
procedural due process. See, e.g., Niebur v. Town of
Cicero, 212 F. Supp. 2d 790, 811 (N.D. Ill. 2002). Each
of these cases challenges the basis on which an employer took an adverse employment action or the
method through which an employer took an adverse
employment action. For example, in Niebur, the trial
court observed that “suspension is manifestly a change
of status,” for which due process is required. Id. And,
in Moran, the plaintiff alleged that his employer “conspired to and did violate his right to substantive due
process under the Fourteenth Amendment” by manufacturing facts that led to adverse employment actions.
296 F.3d at 642. In Moran, the plaintiff ’s substantive
due process claim related to the manner in which his
employer took the adverse employment action.
Namely, after he was acquitted of criminal charges, the
police department held an administrative hearing and
on the basis of allegedly false evidence, suspended and
demoted him. Id.
Here, unlike the plaintiffs in Niebur and Moran,
Linder does not challenge the propriety of the adverse
employment action taken against him. Instead, he concedes that the adverse employment action was appropriate given the nature of the criminal charges brought
against him. (See Doc. 19 at 19 (arguing that “it was
reasonably foreseeable that [Linder] would be suspended without pay” because a federal statute authorizes the suspension of federal employees, without
notice, when “there is reasonable cause to believe [the]
employee has committed a crime for which [a] sentence
of imprisonment may be imposed.”)). Because Plaintiff
App. 34
is not challenging the propriety of the adverse employment action taken against him, both Niebur and
Moran are inapposite.
Let’s suppose, however, that Plaintiff was challenging the propriety of the adverse employment action. If that was the case, two things are clear. First, a
Bivens action would not be appropriate. See Richards
v. Kiernan, 461 F.3d 880, 885 (7th Cir. 2006) (observing
that there “is no question but that the [Civil Service
Reform Act] provides the exclusive remedy for an alleged constitutional violation . . . arising out of federal
employment.”). Second, this Court would not have jurisdiction over a claim brought pursuant to the Civil
Service Reform Act. See Ayrault v. Pena, 60 F.3d 346,
348 (7th Cir. 1995) (observing that the only court with
jurisdiction over CSRA claims is the Federal Circuit).
In conclusion, Plaintiff ’s Bivens claims must be
dismissed. Supposing that a Bivens remedy is available, Plaintiff has failed to establish that the Individual
Defendants’ conduct violated his constitution [sic]
rights. For that reason, all of the Individual Defendants are entitled to qualified immunity. See Alexander, 692 F.3d at 355.
II.
Counts III and IV – FTCA Claims Against
the United States
Plaintiff has also sued the United States under the
FTCA for malicious prosecution and intentional infliction of emotion distress. These claims are based upon
the actions undertaken by U.S. Marshal McPherson
App. 35
and Special Investigator Shirley both before Plaintiff ’s
indictment and after Plaintiff ’s indictment.
Collectively, the actions by Shirley and McPherson
– McPherson instructing his employees to investigate,
questioning Plaintiff, aiding Shirley, and emailing instructions to his employees that they not speak with
Plaintiff ’s attorneys without prior approval, and
Shirley aggressively interrogating and threatening
witnesses and drafting affidavits with false statements
– provide the predicate facts upon which Plaintiff rests
his claims of malicious prosecution and intentional infliction of emotional distress. As explained below, the
discretionary function exception to the United States’
waiver of sovereign immunity in the FTCA applies to
all of this behavior. Therefore, Plaintiff ’s FTCA claims
must be dismissed.
A. The Discretionary Function Analysis
The FTCA waives the United States’ sovereign
immunity for damages “caused by the negligent or
wrongful act or omission” of federal employees acting
within the scope of their employment where the
United States, “if a private person,” would have been
liable to the plaintiff under state law. 28 U.S.C. § 1346(b).
However, this waiver of sovereign immunity is not
absolute, as Congress has excepted certain claims from
the FTCA. This includes “[a]ny 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 Government
App. 36
. . . ” 28 U.S.C. § 2680(a). This subsection, known as the
discretionary function exception, protects the United
States from liability when an activity is properly “classified as an exercise of discretion,” even if the government employee abuses his discretion. Collins v. United
States, 564 F.3d 833, 839 (7th Cir. 2009).
The exception “marks the boundary between Congress’ willingness to impose tort liability upon the
United States and its desire to protect certain governmental activities from exposure to suit by private individuals.” United States v. Varig Airlines, 467 U.S. 797,
808 (1984). Its purpose is to “prevent judicial secondguessing of legislative and administrative decisions
grounded in social, economic, and political policy
through the medium of an action in tort.” United States
v. Gaubert, 499 U.S. 315, 322-23 (1991).
For behavior to qualify for the discretionary function exception, it must meet two criteria. First, the conduct must involve “an element of judgment or choice.”
Berkovitz v. United States, 486 U.S. 531, 536 (1988).
Conduct that is specifically proscribed by “federal statute, regulation, or policy” is not conduct that involves
an element of judgment or choice because “the employee has no rightful option but to adhere to the directive.” Id. Second, the conduct must be “susceptible
to policy analysis.” Gaubert, 499 U.S. at 325. If certain
action is discretionary, a Plaintiff “must allege facts
which would support a finding that the challenged actions are not the kind of conduct that can be said to be
grounded in . . . policy.” Id. at 324-25.
App. 37
The United States argues that the FTCA’s discretionary function exception bars Plaintiff ’s claims under one of two theories. First, it argues that Plaintiff ’s
injury is not “distinct from the harm caused by the
ultimate prosecution itself,” and the decision to prosecute is “uniformly found . . . to be immune under the
discretionary function exception.” (Doc. 23 at 7 (citing
Gray v. Bell, 712 F.2d 490, 515 (D.C. Cir. 1983)). Second,
the United States argues that each of Shirley and
McPherson’s alleged acts are quintessentially discretionary and susceptible to policy analysis. (Doc. 23 at
8-13). Plaintiff responds by arguing first that the discretionary function exception does not apply to his malicious prosecution claim, and second that Shirley and
McPherson’s alleged acts are not discretionary because
they either violated the Constitution, were unlawful,
or were proscribed by regulation or agency directive.
(Doc. 27 at 5-10).
1. Law Enforcement Proviso
The Court first addresses Plaintiff ’s argument
that the discretionary function exception does not apply to his malicious prosecution claim. Relying upon an
Eleventh Circuit case, Nguyen v. United States, 556
F.3d 1244, 1251-56 (11th Cir. 2009), Plaintiff argues
that the discretionary function exception categorically
does not apply to certain intentional torts committed
by law enforcement officers, including malicious prosecution.
App. 38
This is a matter of statutory construction. Just as
28 U.S.C. § 2680(a) excepts from the FTCA’s coverage
the discretionary actions of government employees,
28 U.S.C. § 2680(h) excepts a number of intentional
torts, including malicious prosecution. See 12 [sic]
U.S.C. § 2680(h). However, in 1974, Congress amended
§ 2680(h) with what is now known as the law enforcement proviso. Nguyen, 556 F.3d at 1251. The law enforcement proviso provides, in part, that, “with regard
to acts or omissions of investigative or law enforcement
officers . . . the provisions of this chapter and section
1346(b) of this title shall apply to any claim arising . . .
out of . . . malicious prosecution.” 28 U.S.C. § 2680(h).
Plaintiff argues that § 2680(a) and § 2680(h) are
in irreconcilable conflict: while § 2680(a) exempts from
the FTCA’s waiver of sovereign immunity “any claim”
based on a federal employee’s exercise of discretion
or failure to exercise discretion, § 2680(h) purports to
waive sovereign immunity for “any claim” for malicious
prosecution based upon the conduct of law enforcement officers. (Doc. 27 at 6). But what about claims for
malicious prosecution based upon the conduct of law
enforcement officers who are acting within their discretion? The Seventh Circuit has not directly addressed this question.
In Nguyen, the Eleventh Circuit resolved this apparent conflict by concluding that one of the sections
must yield to the other. See 556 F.3d at 1252. It applied
two canons of construction to conclude that § 2680(h)
trumps § 2680(a): first, it reasoned that specific statutory provisions trump general statutory provisions and
App. 39
noted that § 2680(h), which applies to six specific intentional torts, is more specific than § 2680(a)’s general exception. Id. at 1253. Second, it reasoned that
younger statutory provisions trump older provisions,
and noted that the discretionary function exception is
nearly thirty years older than the law enforcement
proviso. See id.
Other circuit courts reviewing the question have
not been so severe, and instead have accommodated
both sections rather than rendering one subsection
inoperative in order to give meaning to the other. See,
e.g., Medina v. United States, 259 F.3d 220, 225 (4th Cir.
2001); Gasho v. United States, 39 F.3d 1420, 1433 (9th
Cir. 1994); Pooler v. United States, 787 F.2d 868, 872-73
(3d Cir. 1986), abrogated on other grounds by Millbrook
v. United States, 133 S. Ct. 1441 (2013); Gray v. Bell,
712 F.2d 490, 507 (D.C. Cir. 1983); Caban v. United
States, 671 F.2d 1230, 1234-35 (2d Cir. 1982). The D.C.
Circuit, for example, held that the law enforcement
proviso does not waive immunity for discretionary acts.
It found “no serious incongruity between the immunity
afforded under section 2680(a) and the waiver of immunity under the proviso to section 2680(h).” Gray,
712 F.2d at 507. It resolved the apparent dispute by
finding that the sections “are neither inconsistent nor
mutually exclusive” because the “intentional torts
listed under the proviso . . . may be committed without
any exercise of a discretionary function.” Id. The
Fourth Circuit agreed with the rationale in Gray, and
concluded that “actions underlying intentional tort allegations described in § 2680(h), if authorized and
App. 40
implemented consistent with federal law and the Constitution of the United States, may be considered discretionary functions.” Medina, 259 F.3d at 226.
Although the Seventh Circuit has not directly addressed this issue, its opinion in Reynolds v. United
States, 549 F.3d 1108 (7th Cir. 2008) implicitly embraces
the majority position. In Reynolds, a security guard
sued the United States, alleging that its investigators
“had initiated a malicious prosecution by submitting
knowingly false information to the . . . prosecutor.” Id.
at 1110. Before analyzing whether the conduct was an
actionable intentional tort pursuant to § 2680(h)’s law
enforcement proviso, the Reynolds court first considered whether the investigators’ actions were discretionary. See id. at 1112-13, 1114. Ultimately, it held
that the complained of behavior was actionable because it was not discretionary and fell within the law
enforcement proviso. See id.
Under Plaintiff ’s reading of the FTCA, the sequence of the Seventh Circuit’s analysis in Reynolds
would be backward: whether the investigators’ conduct
fell within the law enforcement proviso (it did) should
have answered whether the discretionary function exception applied (it categorically did not). Yet that is
not how the court approached the issue. The court addressed the discretionary function exception argument
before addressing the question of the law enforcement
proviso, and it addressed it independently of the law
enforcement proviso by applying the Supreme Court’s
Gaubert factors. See id. at 1113.
App. 41
The Seventh Circuit’s approach makes a great
deal of sense. By reading § 2680(a) independently from
§ 2680(h), courts have construed § 2680 “so that effect
is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley
v. United States, 556 U.S. 303, 313 (2009). Section 2680
provides for thirteen separate categories of exceptions
to the Government’s waiver of sovereign immunity. See
28 U.S.C. §§ 2680(a)-(n). There is ample room for overlap between the provisions. For example, as recognized
above, it is possible for a law enforcement officer to engage in discretionary conduct that meets the elements
of malicious prosecution. Prior to the addition of the
law enforcement proviso, such conduct would have
been independently excepted from the reach of the
FTCA under at least two of § 2680’s subsections –
§ 2680(a) and § 2680(h). With the addition of the law
enforcement proviso, such behavior is no longer excepted from the FTCA’s waiver of sovereign immunity
under § 2680(h). But reading § 2680(h) to have no effect on § 2680(a) renders neither subsection void or
superfluous.
The Court concludes, along with the majority of
courts of appeal and the implied approval of the Seventh Circuit, that the law enforcement proviso does not
trump the discretionary function exception. Therefore,
both Plaintiff ’s malicious prosecution claim and intentional infliction of emotional distress claim must overcome the hurdle posed by the discretionary function
exception in order to proceed.
App. 42
2. Constitutional Rights
Plaintiff next argues that he can overcome the
hurdle posed by the discretionary function exception
because he has alleged that both McPherson and
Shirley engaged in activity that violated his constitutional rights. In his Complaint, Plaintiff alleges that
McPherson’s actions violated his Sixth Amendment
right to compulsory process of witnesses and his Fifth
Amendment right to due process of law, (Doc. 12 at
¶ 56), and that Shirley’s actions violated his Fifth
Amendment right to due process of law. (Id. at ¶ 60).
He also argues that both created false evidence, in violation of his Fifth Amendment rights. (Doc. 27 at 9).
Seventh Circuit precedent cited by neither party
squarely forecloses such an argument.
A number of circuits addressing the discretionary
function exception have explained that it is inapplicable when a government actor allegedly engages in activity that violates the Constitution. For example,
the First Circuit held that the discretionary function
exception does not shield the United States from liability when its agents “participated in framing [plaintiffs] and . . . withheld exculpatory evidence to cover up
their malefactions” because the conduct was “a clear
violation of due process.” Limone v. United States, 579
F.3d 79, 102 (1st Cir. 2009). Other circuits, including
the Fourth, Eighth, and Ninth have agreed. See Medina, 259 F.3d at 225 (explaining that “federal officials
do not possess discretion to violate constitutional
rights”); Raz v. United States, 343 F.3d 945, 948 (8th
Cir. 2003) (concluding that conduct engaged in by the
App. 43
FBI fell outside of the discretionary function exception because the plaintiff alleged the conduct violated
his rights under the First and Fourteenth Amendment [sic]); Galvin v. Hay, 374 F.3d 739, 757-58 (9th
Cir. 2004) (holding that discretionary function exception did not apply to police officers who dispersed members from a prayer service because the activity violated
the constitution).
The United States argues that for constitutional
violations to apply, the Constitution “must clearly preclude the specific conduct at issue” because “only clear
and specific directives or prohibitions . . . will avoid the
discretionary function.” (Doc. 28 at 5 (citing Berkovitz,
486 U.S. at 544)). This argument appears to be an attempt to align the discretionary function exception
with the doctrine of qualified immunity. See Harlow,
457 U.S. at 818 (limiting individual employees’ liability
for constitutional torts to conduct that violates “clearly
established” constitutional rights); Castro v. United
States, 560 F.3d 381, 395 (5th Cir. 2009) (Smith, J. dissenting), rev’d on reh’g en banc, 608 F.3d 266 (5th Cir.
2010) (arguing that it is nonsensical to treat FTCA
claims “more liberally than we treat Bivens actions
against individual federal officers” who enjoy qualified
immunity).
Courts holding that federal employees do not have
the discretion to violate the Constitution have not been
clear on this point. In a number of cases where courts
have explained that government actors do not have
the discretion to violate the Constitution, they also
held that the complained of conduct violated clearly
App. 44
established constitutional rights. See, e.g., Limone, 579
F.3d at 102 (concluding that behavior fell outside of
the discretionary function [exception] because it was
unconstitutional and citing to an earlier decision
which concluded the individual actors were not entitled to qualified immunity); Rich v. United States, 158
F. Supp. 2d 619, 627 (D. Md. 2001) (concluding that
police officers searching for a subject of an arrest warrant in a third-party’s home violated the Fourth
Amendment, that they did not enjoy qualified immunity because the law was clearly established, and that
the search was not discretionary). However, this is not
a consistent trend. See Galvin, 374 F.3d 757-58 (holding that officers enjoyed qualified immunity for constitutional torts emerging from dispersal of a prayer
service because their error “was not unreasonable
given the law as clearly established” at the time, but
also holding that the discretionary function exception
did not apply because the activity violated the Constitution).
In spite of this recent trend of courts holding
that it is outside of the discretion of federal employees
to engage in behavior that violates the Constitution,
the only Seventh Circuit case the Court has located
squarely held just the opposite. In Kiiskila v. United
States, a commanding officer at a military reservation
excluded from the reservation a civilian employee in a
manner that violated the First Amendment. 466 F.2d
626, 627 (7th Cir. 1972) (per curiam). The Court made
short work of the civilian employee’s claim for damages
under the FTCA, concluding that she could not
App. 45
recover because “her exclusion . . . was based upon [the
commanding officer’s] exercise of discretion,” which
“excepted her claim” from the reach of the FTCA even
though it was “constitutionally repugnant.” Id. at 62728. This Court is bound by the unequivocal holding of
Kiiskila. The fact that Plaintiff alleges both McPherson
and Shirley violated his constitutional rights does not
put their conduct outside of the purview of the discretionary function exception.
B. Applying the Discretionary Function
Exception
Having disposed of these arguments, the Court
now applies the discretionary function exception to
the facts as alleged by Plaintiff.4 As explained above,
4
The Court notes the United States’ primary argument is
that it cannot be liable under the FTCA when the harm alleged
by a plaintiff is indistinguishable from the government’s decision
to initiate prosecution. It is undisputed that the decision whether
to prosecute a person is discretionary. See Gray v. Bell, 712 F.2d
490, 513 (D.C. Cir. 1983). Courts have held that when “a robust
act of discretion” intervenes in between the acts of an “alleged
government wrongdoer” and a plaintiff ’s injury, the discretionary
function exception protects the government from liability. See
Gen. Dynamics Corp. v. United States, 139 F.3d 1280, 1285 (9th
Cir. 1998). The Seventh Circuit addressed the applicability of this
principle in Reynolds, 549 F.3d at 1113. There, it concluded that
the discretionary function exception protects government wrongdoing that cannot be meaningfully considered separately from the
totality of a prosecution. But when activity is separable from the
discretionary decision to prosecute, the discretionary decision to
initiate prosecution does not shield that wrongdoing. See id. In
this case, Plaintiff has not alleged that either McPherson or
Shirley corrupted the initiation of the prosecution by lying under
oath. However, Plaintiff ’s claim for intentional infliction of
App. 46
behavior qualifies for the discretionary function if it involves an element of judgment or choice, is not specifically proscribed by federal statute, regulation, or
policy, and is susceptible to policy analysis.
1. Pre-Indictment Activities
Plaintiff first argues that McPherson and Shirley
manufactured evidence that was used to indict him.
As the Seventh Circuit held in Reynolds, investigators
lack the discretion to “fuel [a] prosecution with knowingly false information.” 549 F.3d at 1113. However,
Plaintiff does not allege that prior to the indictment
McPherson and Shirley “created evidence that they
knew to be false.” See Petty v. City of Chicago, 754 F.3d
416, 423 (7th Cir. 2014). Instead, Plaintiff argues
that McPherson created false evidence by taking “the
extraordinary step of directing [his employees] to go
interview [Plaintiff ’s alleged victim] about the allegations” and then sent his employees back to take
additional pictures of the victim after receiving a report that the victim did not have any injuries to his
face and receiving a picture of the victim’s face.” (Doc.
12 at ¶ 24). Plaintiff also alleges that Shirley, together
with AUSA’s [sic] Cha and Blumberg, created false
evidence when he “routinely intimidated and harassed
emotional distress is not necessarily dependent upon the initiation of prosecution, and certain complained of actions occurred after the initiation of prosecution. Because they are separable from
the discretionary decision to initiate prosecution, the Court considers them independently, under the test enunciated in Gaubert
and applied in Reynolds. See id.
App. 47
witnesses and threatened prosecution in an effort to
coerce witnesses to testify favorably.” (Id. at ¶ 34).
As the Seventh Circuit recently held in Petty,
these sorts of allegations, although packaged by Plaintiff as allegations of evidence fabrication, are not allegations of evidence fabrication. Rather, at very best
for Plaintiff, they are allegations of coerced testimony.
See id. at 422; Fields, 740 F.3d at 1110 (“Coerced testimony is testimony that a witness is forced by improper
means to give; the testimony may be true or false.
Fabricated testimony is testimony that is made up; it
is invariably false.”). Investigators may fabricate evidence by creating evidence “that she knows to be false,”
but that is a different proposition from “getting ‘a reluctant evidence to say what may be true.’ ” Petty, 754
F.3d at 422 (quoting Fields, 740 F.3d at 1112). In Petty,
the plaintiff alleged that police officers “coerced [a witness] into giving false evidence by threatening him
with jail time . . . holding him against his will in a
locked room without food or water for over 14 hours,
badgering him, and pressuring him to identify [the
plaintiff ] as one of the assailants.” Id. at 423. The
Seventh Circuit recognized that this is “different than
alleging that [the police officers] created evidence that
they knew to be false.” Id.
In this case, Plaintiff has not pled that either
McPherson or Shirley created knowingly false evidence prior to the indictment. When McPherson’s
agents interviewed Plaintiff ’s alleged victim, they
asked him about the alleged assault on three separate
occasions before he said anything about it, and the
App. 48
alleged victim said a “Cicero police officer had hit him.”
(Doc. 12 at ¶ 24) Upon receiving this report, Marshal
McPherson did not direct his agents to create evidence
that Plaintiff had hit the alleged victim. Instead, the
Complaint alleges that he directed them to collect further evidence by “tak[ing] more pictures of him.” (Id.).
When Shirley interviewed witnesses, Plaintiff alleges
that he attempted to “coerce witnesses to testify favorably for the government and dissuade them from
testifying in favor of Deputy Linder,” and that he successfully convinced “witnesses to change their story.”
(Id. at ¶ 34). This sort of allegation falls on the coercion
side of the line rather than the fabrication side of the
line, as Plaintiff has alleged coercive interrogation
techniques rather than the creation of evidence that is
known to be absolutely false. See Petty, 754 F.3d at 423.
a. Discretionary Nature of Shirley’s PreIndictment Activities
The United States argues that it was in Shirley’s
discretion to conduct his investigation in the manner
that he did. It cites to the Code of Federal Regulations,
which authorizes the Inspector General to conduct
investigations “relating to criminal wrongdoing . . . of
Department [of Justice] employees . . . as are, in the
judgment of the Inspector General, necessary or desirable;” access “all records . . . or other material
available to the Department and its components that
relate to” the investigations; obtain “information from
Federal government agencies by means other than
subpoena and advise the head of such agency whenever
App. 49
information is unreasonably refused or not provided;”
and obtain affidavits “whenever necessary in the performance of the function of the OIG.” 28 C.F.R.
§ 0.29h(a), (d), (g), (k). It asserts that the law affords
OIG Special agents [sic] such as Shirley discretion,
rather than a precise and optionless directive, as to
how they can set up interviews, cooperate with U.S.
Marshals, obtain evidence, and interrogate witnesses.
Plaintiff does not dispute this characterization,
but instead chooses to argue that the OIG lacks the
discretion to manufacture knowingly false information. As demonstrated above, Plaintiff has not
properly pled such facts. Therefore, the Court concludes that Shirley acted within his discretion in determining how to conduct his investigation. See
Reynolds, 549 F.3d at 1113 (observing that “challenges
to the quality of an investigation . . . are generally
barred by the discretionary-function exception.);
O’Ferrell v. United States, 253 F.3d 1257, 1267 (11th
Cir. 2001) (explaining that “[j]ust how law enforcement
agents are to conduct interrogations would appear to
be a paradigmatic example of a discretionary function,”
even when agents engage in “an indefensibly gross
abuse of their discretion” because it “involves elements
of judgment and choice.”).
b. The Discretionary Nature of McPherson’s Pre-Indictment Activities
The United States similarly argues that McPherson acted within his discretion when he directed his
App. 50
staff to question the alleged victim and when he interviewed Plaintiff after receiving the report of the incident. Plaintiff alleges that this activity violated the
Marshals Service’s Policy Directive 2.2 on Misconduct
Investigations. Policy Directive 2.2 provided McPherson with a clear obligation to “immediately report all
misconduct allegations” to the U.S. Marshals Service’s
Office of Inspection. It also refers to certain rights that
employees have during a misconduct investigation.
Plaintiff argues that the portion of the Policy Directive requiring that McPherson immediately report
alleged misconduct to the Office of Inspection effectively prohibited McPherson from doing anything
other than report the misconduct complaint. The Complaint also alleges that no one advised Plaintiff of his
rights when he was informally interviewed. (Doc. 12 at
¶ 23).
Plaintiff ’s argument is untenable. The Complaint
admits that Chief Deputy Marshal O’Malley complied
with [the] directive by immediately forwarding the report to the USMS Office of Inspection. (See Id. at ¶ 21).
A directive requiring that McPherson report misconduct allegations to the Office of Inspection would only
provide a “precise and optionless” directive to not engage in any sort of preliminary investigation if it expressly limited McPherson’s actions. See Berkovitz,
486 U.S. at 554 (explaining that the discretionary function does not apply when an agency failed to “act in
accord with a specific mandatory directive.”). However,
there is no such express limitation in the directive,
only an instruction with which the Marshals Service
App. 51
admittedly complied. Absent specific directives instructing otherwise, McPherson’s extracurricular activity, by definition, was discretionary.
Second, any rights that Plaintiff might have during a misconduct investigation did not apply when
McPherson interviewed him because there was no
misconduct investigation at the time of the interview.
The Complaint admits that the OIG did not open an
investigation until, at the earliest, July 26, 2010. (See
Doc. 12 at ¶ 26). McPherson interviewed Plaintiff two
weeks before that, on July 12, 2010. (See Id. at ¶ 22).
Therefore, McPherson’s pre-indictment activities, like
Shirley’s, were discretionary.
2. Post-Indictment Activities
This leaves McPherson and Shirley’s activities
post-indictment: McPherson’s emails and the affidavits that Shirley drafted. The United States argues
that McPherson’s email to staff was discretionary because he sent it in his official capacity as a presidentially-appointed United States Marshall [sic] in an
effort to provide his employees with guidance as to
what they should or should not have been doing and
maintain efficient operations of the Marshal Service.
(Doc. 23 at 12). The Court agrees with the United
States that sending such an email is a task associated
with “day-to-day management,” which “regularly requires judgment as to which of a range of permissible
courses is the wisest.” Gaubert, 499 U.S. at 325.
App. 52
Shirley’s affidavits require a bit more analysis.
Plaintiff maintains that Shirley knowingly manufactured evidence by drafting affidavits with knowingly
false statements that were ultimately signed by witnesses and submitted to the district court prior to its
hearing on the motion to dismiss the indictment. See
Reynolds, 549 F.3d at 1113. The United States responds by arguing that Reynolds is inapposite because
the witnesses signing the affidavits, and not Shirley,
would be responsible for any falsity they contained.
The United States’ attempt to distinguish Shirley’s
behavior from the behavior in Reynolds is not convincing, as Shirley would be unable to fully disclaim responsibility for false statements that he knowingly
included in affidavits he drafted. Cf. Resolution Trust
Corp. v. Bright, 6 F.3d 336, 341 (5th Cir. 1993) (explaining that attorneys violate disciplinary rules by asking
witnesses “to swear to facts which are knowingly
false”). However, this does not take Shirley’s actions
outside of the discretionary function exception. The
only allegedly knowingly false statements that Shirley
included were statements that USMS employees “did
not have any information that would be helpful to the
defense.” (Doc. 12 at ¶ 41). In the affidavits, Shirley
characterized what the swearing witnesses either
knew or did not know as either helpful or unhelpful
to Plaintiff ’s criminal defense. Such a decision is discretionary. Cf. Moore v. Valder, 65 F.3d 189, 217, 217
(D.C. Cir. 1995) (holding that determining “whether
information is ‘exculpatory’ and ‘material’ and therefore must be disclosed pursuant to a Brady request”
App. 53
requires the exercise of professional judgment and is
“quintessentially discretionary”). For these reasons,
the Court concludes that both McPherson and
Shirley’s post-indictment activities were discretionary.
3. Susceptibility to Policy Analysis
The Court has concluded that both McPherson
and Shirley exercised discretion when they engaged
in each activity upon which Plaintiff bases his FTCA
claims. Next, the Court must consider whether
McPherson and Shirley’s acts were “grounded in policy.” Gaubert, 499 U.S. at 324. Courts are to presume
that the acts are grounded in policy, and Plaintiff must
overcome the presumption by alleging facts that “support a finding that the challenged actions are not the
kind of conduct that can be said to be grounded in . . .
policy.” Id. at 324-25. Plaintiff has done nothing to rebut this presumption. In his response to the United
States’ Motion to Dismiss, Plaintiff did not argue that
McPherson and Shirley’s activities were not grounded
in policy. (See Doc. 27 at 10). The Court concludes that
both McPherson and Shirley’s activities were susceptible to policy analysis. Both conducted an investigation
into an employee’s wrong-doing, and investigations
“clearly require investigative officers to consider relevant political and social circumstances in making decisions about the nature and scope of a criminal
investigation.” Sabow v. United States, 93 F.3d 1445,
1453 (9th Cir. 1996). And McPherson sent one email
and authorized a second as part of his responsibilities
involving day-to-day management of the U.S. Marshals
App. 54
Service. See Gaubert, 499 U.S. at 331-31 (explaining
that “day-to-day management” is susceptible to policy
analysis). Because both McPherson and Shirley made
these discretionary decisions in the course of implementing their job responsibilities, and because the
decisions were directly related to their job responsibilities, the Court concludes that the decisions were
susceptible to policy analysis. See Collins, 564 F.3d at
840.
Therefore, the Court concludes that each of the
challenged actions taken by McPherson and by Shirley
were actions exempted from the FTCA by 28 U.S.C.
§ 2680(a). For that reason, Plaintiff ’s FTCA claims
must be dismissed.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’
Motions to Dismiss (Docs. 13, 23) are GRANTED.
CASE TERMINATED.
Entered this 29th day of January, 2015.
s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
App. 55
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
November 1, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 15-1501
Appeal from the United
States District Court for
the Northern District of
Illinois, Eastern Division.
STEPHEN LINDER,
Plaintiff-Appellant,
v.
UNITED STATES
OF AMERICA,
Defendant-Appellee.
No. 14-cv-2714
Joe Billy McDade, Judge.
Order
Plaintiff-appellant filed a petition for rehearing
and rehearing en banc on October 17, 2019. No judge
in regular active service has requested a vote on the
petition for rehearing en banc,* and all of the judges
on the panel have voted to deny rehearing. The petition
for rehearing is therefore DENIED.
* Judge Flaum did not participate in the consideration of
this petition.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.