April 1, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 14-cv-2714 - Joe
Billy McDade, Judge.
Easterbrook, Sykes, and Brennan, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
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.
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.
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.
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.
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).
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.
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
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.
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 ...