Stephen Linder v. Darryl McPherson

Citation: Not availableDocket: 15-1501

Court: Court of Appeals for the Seventh Circuit; September 9, 2019; Federal Appellate Court

Original Court Document: View Document

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Stephen Linder, a Deputy Marshal, was indicted for witness tampering and excessive force after an incident involving the father of a fugitive he was pursuing. Following an internal investigation, he was placed on leave, and communication restrictions were imposed on his colleagues regarding him. Linder's lawyers sought to have the indictment dismissed due to these restrictions, which the district court granted, leading to Linder's return to work without appeal from the United States.

Subsequently, Linder filed a Bivens action against U.S. Marshal Darryl McPherson and others, later adding a claim against the United States under the Federal Tort Claims Act (FTCA). The district court dismissed all claims, with Linder abandoning his Bivens claims on appeal. The dismissal was based on the discretionary-function exemption of §2680(a) of the FTCA, which states that the Act does not apply to claims arising from the discretionary actions of government employees. Linder's allegations included malicious prosecution and intentional infliction of emotional distress, arguing that the discretionary-function exemption should not apply to malicious prosecution claims. However, the court highlighted that the exemption does not apply to law enforcement officers' actions when the claims arise after the enactment of a specific proviso in §2680(h), which includes malicious prosecution caused by investigative or law enforcement officers.

Marshal McPherson, as a law enforcement officer, is claimed by Linder to have his malicious prosecution suit covered under the Federal Tort Claims Act (FTCA), regardless of whether he was exercising a discretionary function. This argument is supported by Nguyen v. United States, which interprets the proviso in §2680(h) as allowing malicious prosecution claims against law enforcement, except for those claims falling under other exemptions in §2680, such as the discretionary-function exception. However, it is argued that reading the proviso as completely negating the applicability of the FTCA to malicious prosecution suits is incorrect. The language of the proviso explicitly states it applies to any claim for malicious prosecution stemming from law enforcement actions, meaning that the discretionary-function exemption in §2680(a) still applies to such claims. Multiple appellate courts have upheld this interpretation, indicating that only the jurisdictional framework provided by §1346(b) and the administrative claim process in §2675 are not overridden by the proviso.

The discussion then shifts to whether McPherson was exercising a discretionary function as defined under §2680(a), which requires that the conduct in question involve judgment or choice and be based on public policy considerations. The district judge concluded that McPherson's actions met these criteria, noting that he had discretion in managing personnel interactions within the Marshals Service, particularly regarding suspended officers. This discretion is based on operational judgments aimed at minimizing internal conflict within the agency.

Marshal McPherson adhered to the established rules for conducting internal investigations as outlined in USMS Directive 2.2, which includes various regulations and procedures. His actions were guided by the Marshals Service’s General Counsel, and compliance with these directives is mandated by §2.2.F.1.c. Under §2680(a), the government bears no liability for actions taken under these regulations, even if they are deemed invalid or abused. In dismissing Linder’s indictment in 2013, the district court suggested potential invalidity of the directive and abuse of discretion but noted that these factors do not establish tort liability per §2680(a). Linder contends that constitutional violations cannot be excused by discretion, referencing the district court's claim that a no-contact order violated the Sixth Amendment's Confrontation Clause. However, the court acknowledged that the right to compulsory process does not extend to pre-trial witness interviews or depositions, as established in Weatherford v. Bursey and United States v. Ruiz. The district court's dismissal did not invoke these precedents nor did it find a breach of any statute or discovery order. The distinction between torts and constitutional violations is emphasized, as the Federal Tort Claims Act (FTCA) pertains only to state-defined torts, not constitutional claims. The Bivens remedy was established for constitutional violations against federal employees, while the Westfall Act restricts substitution of the United States as a defendant when constitutional claims are involved. As Linder has abandoned claims against individual defendants, the suit focuses solely on common-law torts, which remain subject to §2680(a). Although Linder argues that no one has discretion to commit torts like malicious prosecution, §2680(a) must apply to discretionary acts, as exceptions to tort liability are intended to limit damages that would otherwise be warranted.

Under §2680(a), the misuse of discretion in legal doctrines does not render the Treasury liable for torts resulting from such misuse. Investigating potential crimes and managing a federal workforce with an employee under investigation involves significant discretion, with no singular correct approach to these matters. The case of Reynolds illustrates that criminal investigations are inherently discretionary, supported by other circuit rulings like O’Ferrell v. United States. While many prosecutorial actions are discretionary, certain actions, such as perjury, are not protected under §2680(a). The district court found that the management's instructions during Linder's investigation did not constitute a violation of strict rules like lying under oath; rather, they impacted Linder's evidence-gathering ability. Linder's argument that Special Agent Kevin Shirley committed perjury has not been substantiated in the court's dismissal of the indictment, which did not deem his statements as false. Perjury is not discretionary and, while it is not a tort if harmless, Linder succeeded in having his indictment dismissed, indicating no harm occurred. The court noted that Linder did not seek relief under statutes for those proving innocence. Consequently, the district court's judgment is affirmed.