Sutton v. U.S.

• Decision Date: 25 June 1987
• Docket Number: No. 85-2235,85-2235
• Citation: 819 F.2d 1289
• Parties: Michael J. SUTTON and John Wiley Mitchell, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1289

819 F.2d 1289

Michael J. SUTTON and John Wiley Mitchell, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 85-2235.

United States Court of Appeals, Fifth Circuit.

June 25, 1987.

Michael J. Sutton, pro se.

John Wiley Mitchell, pro se.

Linda K. Cipriani, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., C.J. (Neil) Calnan, James R. Gough, Asst. U.S. Attys., Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, REAVLEY, and JONES, Circuit Judges

JOHN R. BROWN, Circuit Judge:

Today, we consider the interplay between two sections of the Federal Tort Claims Act: the "discretionary function exception" of 28 U.S.C. Sec. 2680(a), and the "law enforcement proviso" of Sec. 2680(h). The court below incorrectly interpreted the relationship between the two when it dismissed the plaintiffs' somewhat tenuous claims of malicious prosecution because they had failed to surmount the hurdle of the discretionary function exception. Because the trial court lacked the precise facts on which to base its decision, we reverse and remand.

An Evil Deed, a Forged Deed

In 1975, Frank Van Breeman executed a real estate deed in favor of plaintiff John Mitchell in the presence of plaintiff Michael Sutton. ¹ In 1976, Van Breeman contended that his signature was a forgery and filed a mail fraud complaint with the United States Postal Service. Curtis Woodard, a Postal Service investigator, was assigned to the case.

Sutton and Mitchell contend that, in the course of his investigation, Woodard systematically suppressed evidence favorable to them and manipulated the remaining evidence so as to convince various state and federal prosecutors to pursue indictments against them for criminal fraud. Four separate indictments of Sutton and Mitchell were handed down by a Harris County Grand Jury; all four indictments were subsequently dismissed. Woodard also presented the case to three Assistant United States Attorneys, each of whom declined to institute proceedings against Sutton and Mitchell. ²

Sutton and Mitchell eventually filed suit against the United States under the terms of the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680. They claimed that they were injured by the actions of Inspector Woodard in conducting his investigation. Their complaint alleges that they had been the victims of malicious prosecution, false arrest, and abuse of process. They sought to proceed under 28 U.S.C. Sec. 2680(h), which waives the sovereign immunity of the United States for acts or omissions of its law enforcement officers which give rise to claims of assault, battery, false imprisonment, abuse of process, or malicious prosecution. ³

The government moved to dismiss the complaint on the grounds that the court lacked subject matter jurisdiction. ⁴ It contended that Investigator Woodard's acts fell within the discretionary function exception to the FTCA, 28 U.S.C. Sec. 2680(a), which provides that the sovereign immunity of the United States is not waived for any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency." ⁵ The government further argued that because the law enforcement proviso of Sec. 2680(h) does not stand alone, it is insufficient to render the claims in this case actionable.

The District Court agreed with the government and dismissed the case. In doing so, it relied heavily upon Gray v. Bell, 712 F.2d 490 (D.C.Cir.1983), a case in which the District of Columbia Circuit held that actions under the "law enforcement proviso" must surmount the hurdle of the discretionary function exception before they present a jurisdictional claim ⁶ under the FTCA. Sutton and Mitchell appeal, contending that the District Court erred in its interpretation of the interplay between the two statutory provisions.

Plowing the Ground:

An Initial Look at the Statutory Language

The FTCA is a general waiver of the sovereign immunity of the United States Government to suit in the federal courts. It was designed "to afford easy and simple access to the federal courts for persons injured by the activities of government" without the need to resort to private bills for the purpose of obtaining compensation. Collins v. United States, 783 F.2d 1225, 1233 (5th Cir.1986) (Brown, J., concurring). This design for simplicity, however, is rendered more intricate by the numerous exceptions and provisos to the waiver that are found in Sec. 2680.

This case involves two of those intricate provisions. The first, the discretionary function exception, Sec. 2680(a), retains sovereign immunity against

[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the government, whether or not the discretion involved be abused.

The second is the law enforcement proviso, a 1974 amendment to Sec. 2680(h) constituting a limited waiver of sovereign immunity, which added to the original language that

with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter [that waive sovereign immunity] ... shall apply to any claim arising out of assault, battery, false arrest, abuse of process, or malicious prosecution.

The underlying question in this appeal is whether any of the actions enumerated in the proviso of Sec. 2680(h), may be maintained if the conduct complained of occurs while the officer is performing acts that are within the broad discretionary function exception of Sec. 2680(a). We believe the legislative history and the language of the statute demonstrate that Sec. 2680(a) and Sec. 2680(h) are not mutually exclusive, however, because this case was decided on inadequate factual allegations which prevent us from evaluating the appellants' cause of action in light of the differing statutory policies, we remand this case to the District Court for further proceedings.

Planting the Seeds:

The Task of Statutory Construction

Our duty is to construe a statute consistent with the intent of Congress as expressed in the plain meaning of its language. "There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." United States v. American Trucking Associations, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345, 1350-51 (1940). We begin, as we must, with an analysis of the text of the statute itself. ⁷ Specific words within a statute, however, may not be read in isolation of the remainder of that section or the entire statutory scheme.

The FTCA was enacted for the purpose of waiving "the Government's immunity from actions for injuries to person and property occasioned by the tortious conduct of its agents acting within their scope of business." Dalehite v. United States, 346 U.S. 15, 27-28, 73 S.Ct. 956, 964, 97 L.Ed. 1427, 1436 (1953). Its passage grew out of "a feeling that the Government should assume the obligation to pay damages for the misfeasance of employees in carrying out its work." Id. at 24, 73 S.Ct. at 962, 97 L.Ed. at 1435. Satisfying that obligation, however, is not unqualified and there are certain categories of governmental activity to which the waiver of immunity does not apply.

Among those categories to which the waiver does not apply are claims arising from "discretionary functions" of the government. 28 U.S.C. Sec. 2680(a). Thus, the government is not liable for any claim arising from the exercise "of discretion in the performance of governmental functions or duty 'whether or not the discretion involved be abused.' " Dalehite, 346 U.S. at 33, 73 S.Ct. at 966, 97 L.Ed. at 1439, quoting 28 U.S.C. Sec. 2680(a); see also United States v. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). We have held that a governmental decision that "entails balancing considerations of social, economic, or political policy" is discretionary within the meaning of Sec. 2680(a). Collins, 783 F.2d at 1229. Indeed, we held that law enforcement decisions by U.S. Attorneys on when, where, and how to investigate, and whether to prosecute, fall within the ambit of the discretionary function exception. Smith v. United States, 375 F.2d 243, 247-48 (5th Cir.1967), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967).

On the other hand, we have not hesitated to conclude that such action does not fall within the discretionary function of Sec. 2680(a) when governmental agents exceed the scope of their authority as designated by statute or the Constitution. For example, we recently held that violation of agency regulations represents conduct outside the discretionary function exception, and thus, outside sovereign immunity. Collins, 783 F.2d at 1230-31. See also Bergmann v. United States, 689 F.2d 789, 792 (8th Cir.1982) ("discretionary function exception inapplicable to allegations that government employees ignored or failed to comply with regulations or policies designed to guide their actions"); Staton v. United States, 685 F.2d 117 (4th Cir.1982) (holding that park ranger's shooting of a hunting dog was not a discretionary function despite federal regulation providing for such activity because ranger's discretion to shoot was eliminated by supervisor's order that all wild dogs should be captured, not killed). A government agent who departs from the duties of an investigator and embarks on an intentional abuse within the meaning of Sec. 2680(h) similarly exceeds the scope of his authority and acts outside his discretion. One may hypothesize, the classic Bivens -style tort, in which a federal law enforcement officer uses excessive force, contrary to the Constitution or agency guidelines, which simply does not involve the...