Case Information
*1 Before E ASTERBROOK , S YKES , and B RENNAN , Circuit Judges .
E ASTERBROOK , Circuit Judge . While tracking down a fugi- tive, Deputy Marshal Stephen Linder interrogated the fugi- tive’s father. Another deputy marshal later stated that he had seen Linder punch the father in the face. After an inves- tigation 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 vio- lation of the father’s civil rights). The Service put Linder on *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 ge^ing information from poten- tial witnesses, Linder’s lawyers asked the district court to dismiss the indictment as a sanction. That was done, see 2013 U.S. Dist. L EXIS 29641 (N.D. Ill. Mar. 5, 2013), the United States did not appeal, and Linder returned to work. He re- mains employed as a deputy marshal.
Linder then filed a Bivens action, see Bivens v. Six Un- known Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), against Marshal McPherson and three other per- sons. 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 omis- sion 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 exer- cise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agen- cy 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 permis- sion 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: mali- cious prosecution and intentional infliction of emotional dis- tress. 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, ba^ery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slan- der, misrepresentation, deceit, or interference with contract rights: Provided , That, with regard to acts or omissions of investi- gative or law enforcement officers of the United States Govern- ment, the provisions of this chapter and section 1346(b) of this ti- tle shall apply to any claim arising, on or after the date of the en- actment of this proviso, out of assault, ba^ery, false imprison- ment, 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 empow- ered by law to execute searches, to seize evidence, or to make ar- rests for violations of Federal law.
The first clause of §2680(h) takes malicious prosecution out-
side 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 cov-
ered by the Act whether or not McPherson was exercising a
discretionary function. This contention has the support of
Nguyen v. United States
,
Nguyen observes that §2680(h) tells us that “[t]he provi- sions 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- *4 cludes, 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” (empha-
sis added) for malicious prosecution arising out of a law en-
forcement officer’s acts. “[T]his chapter” includes §2680(a),
the discretionary-function exemption. This means that
discre-
tionary
acts by law-enforcement personnel remain outside
the FTCA by virtue of §2680(a), even though the proviso al-
lows 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
,
It isn’t possible to read §2680(h) as making all of the Fed-
eral 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 in-
cludes §§ 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-
ma^er jurisdiction. If §2675 is knocked out and not brought
*5
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 ad-
ministrative-claim requirement work, see 28 U.S.C. §2401(b);
United States v. Kawi Fun Wong
,
This brings us to the question whether, as the district
judge held, Marshal McPherson was exercising a discretion-
ary function within the scope of §2680(a). The discretionary-
function exemption under that subsection has two compo-
nents: 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);
BerkoviI v.
United States
, 486 U.S. 531, 536–37 (1988);
Reynolds v. United
States
,
Marshal McPherson did not make things up on the spur of the moment; he consulted and a^empted to follow the rules (found in USMS Directive 2.2, covering “Misconduct *6 Investigations”, which refers in turn to still other regulations and procedures) specifying how to conduct internal investi- gations. Many of the steps that Marshal McPherson took were performed under the direction of the Marshals Ser- vice’s General Counsel, and §2.2.F.1.c requires these instruc- tions 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 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 dis-
trict court stated that the no-contact-without-approval order
violated the Confrontation Clause of the Sixth Amendment.
2013 U.S. Dist. L EXIS 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
,
What’s more, the theme that “no one has discretion to vi- olate the Constitution” has nothing to do with the Federal Tort Claims Act, which does not apply to constitutional vio- lations. It applies to torts, as defined by state law—that is to say, “circumstances where the United States, if a private per- son , would be liable to the claimant in accordance with the law of the place where the act or omission occurred” (28 U.S.C. §1346(b)(1); emphasis added). The Constitution gov- erns 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 A^orney General to substitute the United States as a defendant in lieu of a federal employee, it prohib- ited this step when the plaintiff’s claim rests on the Constitu- tion. 28 U.S.C. §2679(b)(2)(A). This leaves the FTCA as a means to seek damages for common-law torts, without re- gard 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 vio-
late 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 discre-
tionary 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
*8
while others aren’t. See
Kiiskila v. United States
,
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 sub-
jects. 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 reso-
lution of criminal charges. Our opinion in
Reynolds
shows
that criminal investigation and prosecution are rife with le-
gitimate discretion, and that how discretion is exercised rests
on potentially contestable visions of wise policy. Other cir-
cuits agree with that view. See, e.g.,
O’Ferrell v. United State
s,
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 le- gitimate 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 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 work- force unduly undermined Linder’s ability to gather evi- dence. 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 investiga- tion on behalf of the Inspector General and the Civil Rights Division of the Department of Justice, commi^ed perjury in affidavits he submi^ed to the district court in connection with Linder’s motion to dismiss the indictment. We must as- sume that Linder is correct in labeling some statements “per- jury,” 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 discretion- ary 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). (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 .