Stephen Linder v. Darryl McPherson, 937 F.3d 1087

Background

Deputy U.S. Marshal Stephen Linder was investigated after an alleged physical confrontation with a suspect’s father; he was indicted on federal criminal charges but the indictment was later dismissed as a sanction by the district court and Linder returned to duty.
While Linder was on leave, U.S. Marshal Darryl McPherson directed deputies not to speak with Linder or his lawyers without approval; that no-contact instruction prompted defense counsel to move to dismiss the indictment.
Linder sued under Bivens against individual officials and later brought FTCA claims against the United States for malicious prosecution and intentional infliction of emotional distress (IIED); Bivens claims were abandoned on appeal, leaving only FTCA claims.
The district court dismissed the FTCA claims, concluding §2680(a)’s discretionary-function exemption barred suit because McPherson’s personnel/investigative decisions involved judgment and policy considerations.
On appeal the central disputes were (1) whether the §2680(h) proviso restoring FTCA coverage for certain law‑enforcement torts overrides §2680(a)’s discretionary-function exception, and (2) whether McPherson’s conduct (and related investigative acts) were discretionary or otherwise actionable (including alleged perjury by an agent).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §2680(h)’s proviso restores FTCA coverage for malicious‑prosecution claims so that the discretionary‑function exception (§2680(a)) does not apply	Proviso reinserts FTCA for law‑enforcement malicious prosecution claims and therefore displaces §2680(a)	Proviso brings back the whole FTCA chapter (including §2680(a)), so discretionary‑function still applies	Court: Proviso does not override §2680(a); discretionary‑function exception still applies (rejects Nguyen)
Whether McPherson’s no‑contact directive was a discretionary act within §2680(a)	Order unlawfully interfered with Linder’s ability to gather evidence and reflected non‑discretionary wrongdoing	Marshal followed internal directives, consulted counsel, and exercised policy judgment about managing personnel and investigations	Court: McPherson’s instructions were discretionary and grounded in policy judgments; §2680(a) bars liability
Whether alleged perjury by DOJ/IG agent is non‑discretionary and creates an FTCA tort claim (malicious prosecution)	Perjury is non‑discretionary and thus not covered by §2680(a); it supports FTCA relief	Much investigative conduct is discretionary; even if perjury occurred, Linder suffered no cognizable tort harm (harmless)	Court: Perjury would be non‑discretionary but here produced no compensable harm (no tort); FTCA claim fails
Whether Linder’s IIED and related tort claims survive after application of FTCA exemptions	Linder contends common‑law torts (malicious prosecution, IIED) are covered under the proviso	FTCA limits recovery to state‑law torts but exempts discretionary acts and does not supplant constitutional remedies	Court: IIED/malicious‑prosecution claims are barred by §2680(a) where conduct was discretionary; FTCA does not cover constitutional claims; judgment affirmed

Key Cases Cited

Millbrook v. United States, 569 U.S. 50 (2013) (statutory interpretation of §2680(h) and scope of FTCA exceptions)
United States v. Gaubert, 499 U.S. 315 (1991) (two‑part discretionary‑function test and policy‑based discretion)
Berkovitz v. United States, 486 U.S. 531 (1988) (discretionary‑function doctrine framework)
Reynolds v. United States, 549 F.3d 1108 (7th Cir. 2008) (discusses separable non‑discretionary wrongful acts versus discretionary prosecutorial/investigative acts)
Nguyen v. United States, 556 F.3d 1244 (11th Cir. 2009) (contrary holding that proviso overrides other §2680 exceptions)
Medina v. United States, 259 F.3d 220 (4th Cir. 2001) (proviso does not negate discretionary‑function exception)
Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994) (FTCA discretionary‑function analysis in law‑enforcement context)
Gray v. Bell, 712 F.2d 490 (D.C. Cir. 1983) (treatment of law enforcement torts under FTCA)
Weatherford v. Bursey, 429 U.S. 545 (1977) (limits on pretrial interview/deposition rights of criminal defendants)
United States v. Ruiz, 536 U.S. 622 (2002) (scope of constitutional trial‑process rights such as compulsory process)
Saunders‑El v. Rohde, 778 F.3d 556 (7th Cir. 2015) (harmlessness doctrine for alleged perjury in investigative materials)