Kenneth Mynatt v. United States, 45 F.4th 889

Kenneth Mynatt, an IRS employee, alleges co-workers conspired to retaliate after he blew the whistle and criticized a union leader.
Federal investigators (DOL OLMS and TIGTA) initiated probes; DOJ declined to prosecute, finding no provable crimes.
Federal agents then allegedly presented forged documents and false testimony to Tennessee prosecutors; SA Scott Kemp testified before a state grand jury, producing a two-count indictment; charges were later dismissed.
Mynatt sued the United States under the FTCA for malicious prosecution and civil conspiracy; district court dismissed for lack of subject-matter jurisdiction under the discretionary-function exception.
The Sixth Circuit reviewed de novo, accepting complaint facts as true, and held the discretionary-function exception did not bar jurisdiction as to allegations that federal agents knowingly used false testimony and altered documents to secure an indictment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the FTCA discretionary-function exception bars claims based on federal employees presenting false testimony/forged documents to prosecutors/grand jury	Perjury and presentation of forged evidence are not grounded in policy and thus not protected by the exception	The conduct is part of prosecutorial/investigative discretion and therefore protected	Exception does not apply to knowingly false testimony/forged documents; such conduct is not the kind the exception was designed to shield
Proper framing of challenged conduct: investigation decisions vs presenting false evidence	Focus must be on the specific act—presentation of false testimony/altered documents (non-protected)	Broader framing: investigation and recommendations to prosecutors are discretionary and protected	Court agreed with Mynatt that the operative conduct is presentation of false evidence, not the general investigative decisions
Whether statutes/regulations rendered the conduct non-discretionary	Various criminal, constitutional, and tort authorities prohibit perjury and false evidence, making the acts non-discretionary	District court treated conduct as discretionary; government emphasized prosecutorial overlap	Sixth Circuit assumed (without deciding) conduct could be discretionary but held even if discretionary, presenting false evidence is not policy-protected; some plaintiff arguments forfeited below

Berkovitz by Berkovitz v. United States, 486 U.S. 531 (two-part test for discretionary-function exception)
United States v. Gaubert, 499 U.S. 315 (exception covers only decisions susceptible to policy analysis)
United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797 (exception focuses on nature of conduct, not actor status)
Millbrook v. United States, 569 U.S. 50 (FTCA waiver context for intentional-tort proviso and scope)
FDIC v. Meyer, 510 U.S. 471 (sovereign immunity barred absent waiver)
Dolan v. U.S. Postal Serv., 546 U.S. 481 (construe FTCA exceptions by their words and reason)
Kosak v. United States, 465 U.S. 848 (identify circumstances within exception’s words and reason)
Reynolds v. United States, 549 F.3d 1108 (perjury that fuels a prosecution is not protected by discretionary-function exception)
Gray v. Bell, 712 F.2d 490 (distinguishable D.C. Circuit decision about investigatory conduct intertwined with prosecutorial discretion)
Kohl v. United States, 699 F.3d 935 (distinguishing policy-grounded conduct from ordinary torts)
Milligan v. United States, 670 F.3d 686 (require precise framing of challenged conduct in discretionary-function analysis)