Stephen Linder v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1501
STEPHEN LINDER,
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14-cv-2714 — Joe Billy McDade, Judge.
____________________
ARGUED APRIL 1, 2019 — DECIDED SEPTEMBER 9, 2019
____________________
Before EASTERBROOK, SYKES, and BRENNAN, Circuit Judges.
EASTERBROOK, 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

-- 1 of 10 --

2 No. 15-1501
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. LEXIS 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.

-- 2 of 10 --

No. 15-1501 3
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, 556 F.3d 1244 (11th Cir. 2009), which
holds that the proviso overrides the rest of §2680.
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-

-- 3 of 10 --

4 No. 15-1501
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, 712 F.2d 490, 507–
08 (D.C. Cir. 1983). Nguyen stands alone, and we think that
the other circuits have this right.
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

-- 4 of 10 --

No. 15-1501 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, 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 mali-
cious-prosecution claims arise from law-enforcement activi-
ty, the proviso applies the whole of the FTCA, except for the
part of §2680(h) that precedes the proviso.
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, 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.
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

-- 5 of 10 --

6 No. 15-1501
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. LEXIS 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, 429 U.S. 545, 559–61 (1976); United States v. Ruiz, 536
U.S. 622, 629 (2002). The district judge believed that the no-
contact-without-approval order “intimidated” other Deputy
U.S. Marshals, reducing the probability that they would be
forthcoming at trial, but that belief was never put to the test
by holding a trial to see what evidence Linder could obtain.
The district court’s order dismissing the indictment did not
mention Weatherford or Ruiz. We do not decide whether the
district court’s order in 2013 was correct, but it did not rest
on a conclusion that the Marshals Service had violated any
statute or a discovery order under Fed. R. Crim. P. 15 or 16.

-- 6 of 10 --

No. 15-1501 7
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

-- 7 of 10 --

8 No. 15-1501
while others aren’t. See Kiiskila v. United States, 466 F.2d 626
(7th Cir. 1972).
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 States,
253 F.3d 1257 (11th Cir. 2001).
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.

-- 8 of 10 --

No. 15-1501 9
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.)

-- 9 of 10 --

10 No. 15-1501
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.

-- 10 of 10 --