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Linder v. United States

United States Court of Appeals, Seventh Circuit

September 9, 2019

Stephen Linder, Plaintiff-Appellant,
United States of America, Defendant-Appellee.

          Argued April 1, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14-cv-2714 - Joe Billy McDade, Judge.

          Before Easterbrook, Sykes, and Brennan, Circuit Judges.


         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 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 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 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 con- eludes, 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); 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 malicious-prosecution 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 subject-matter 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 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 ...

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