Mynatt v. United States, 21-5932

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: GRIFFIN, Circuit Judge.
• Citation: 45 F.4th 889
• Parties: Kenneth J. MYNATT, Plaintiff-Appellant, v. UNITED STATES of America; Office of Labor Management Standards, U.S. Department of Labor; Treasury Inspector General for Tax Administration, Defendants-Appellees.
• Docket Number: 21-5932
• Decision Date: 12 August 2022

45 F.4th 889

Kenneth J. MYNATT, Plaintiff-Appellant,
v.
UNITED STATES of America; Office of Labor Management Standards, U.S. Department of Labor; Treasury Inspector General for Tax Administration, Defendants-Appellees.

No. 21-5932

United States Court of Appeals, Sixth Circuit.

Argued: June 8, 2022
Decided and Filed: August 12, 2022

ARGUED: Daniel A. Horwitz, HORWITZ LAW, PLLC, Nashville, Tennessee, for Appellant. Sean R. Janda, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON BRIEF: Daniel A. Horwitz, Lindsay E. Smith, HORWITZ LAW, PLLC, Nashville, Tennessee, for Appellant. Sean R. Janda, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Before: BOGGS, COLE, and GRIFFIN, Circuit Judges.

GRIFFIN, Circuit Judge.

The Federal Tort Claims Act broadly waives sovereign immunity for tort claims against the United States, but also claws back that immunity in several instances by stating exceptions. We are called today to answer whether a federal employee's use of false testimony and forged documents to secure an indictment from a state grand jury falls within one of those exceptions, the so-called discretionary-function exception. See 28 U.S.C. §§ 1346(b)(1), 2680(a). If so, the government would be entitled to sovereign immunity and a district court would not have subject-matter jurisdiction over such a claim. But because we hold that it does not, the district court erred in dismissing plaintiff's complaint for lack of subject-matter jurisdiction. We therefore reverse and remand for further proceedings consistent with this opinion.

I.

The complaint asserts the following operative facts, which we must take as true at this procedural posture. Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co. , 491 F.3d 320, 330 (6th Cir. 2007).

Plaintiff Kenneth Mynatt is an Internal Revenue Service employee. Over a decade ago, he "blew the whistle to a member of the United States Congress about a wasteful IRS manager conference" and gave an interview to the Washington Post in which he was critical of his union president's leadership and more specifically, her "perceived abuse of power."

These two unrelated events did not sit well with other government employees and union members. Mynatt asserts that various federal employees formed a plan to retaliate against him—framing Mynatt for stealing funds from the union. The conspiracy's first step was for two separate employees to report his alleged theft to two federal entities, the Department of Labor's Office of Labor Management Standards and the Treasury Inspector General for Tax Administration. These reports triggered internal investigations, and government agents ultimately "urged the filing and prosecution of federal felony charges" against him. But the Department of Justice

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"determined the alleged crimes did not occur," and that the investigations "were political in nature," and declined to prosecute.

The co-conspirators then turned to Tennessee's criminal justice system, lobbying district attorneys from Tennessee's 20th Judicial District to pick up the cudgel. Government agents presented "false testimony and forged documents" to prosecutors, doing so despite admitting that "they were being pressured by their respective management structures to have [Mynatt] indicted" and "the charges were political in nature and not based on provable facts." The plan culminated with one special agent, Scott Kemp, testifying before a state grand jury "using false testimony and altered documents," which resulted in a two-count grand-jury indictment of Mynatt. During the resulting criminal proceedings, government agents tried to "pressure [Mynatt] into pleading guilty to lesser unfounded misdemeanor charges" and "offer[ed] to drop all criminal charges if he resigned his employment with the Federal government." The District Attorney ultimately dismissed the charges.

Plaintiff then filed several lawsuits against the United States, his union, and their employees. See generally Mynatt v. Nat'l Treasury Emps. Union Chapter 39 , No. 3:17-CV-01454, 2019 WL 7454711 (M.D. Tenn. June 10, 2019) ; Mynatt v. Nat'l Treasury Emps. Union, Chapter 39 , No. M2020-01285-COA-R3-CV, 2021 WL 4438752 (Tenn. Ct. App. Sept. 28, 2021). In this litigation, Mynatt claims that the United States¹ is liable for malicious prosecution and civil conspiracy under Tennessee law via the Federal Tort Claims Act (FTCA). The government moved to dismiss the complaint for lack of jurisdiction and for failure to state a claim. The district court granted the motion, holding the FTCA did not authorize subject-matter jurisdiction over plaintiff's claims.² Plaintiff appeals.

II.

"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Enacted in 1946, the FTCA "was designed primarily to remove the sovereign immunity of the United States from suits in tort." Millbrook v. United States , 569 U.S. 50, 52, 133 S.Ct. 1441, 185 L.Ed.2d 531 (2013) (citation omitted). It waives sovereign immunity for claims of "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the [United States] while

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acting within the scope of his office or employment." 28 U.S.C. § 1346(b)(1). The waiver grants exclusive jurisdiction to the district courts to hear such claims, provided, however, that "the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Id.

The FTCA contains several exceptions to this broad waiver of sovereign immunity. Because the Act is a grant of jurisdiction, a court lacks subject-matter jurisdiction to adjudicate claims falling within exceptions to that grant. Milligan v. United States , 670 F.3d 686, 692 (6th Cir. 2012). Although courts generally must strictly construe a waiver of sovereign immunity "in favor of the sovereign, ... this principle is unhelpful in the FTCA context, where unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute, which waives the Government's immunity from suit in sweeping language." Dolan v. U.S. Postal Serv. , 546 U.S. 481, 491–92, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006) (internal quotation marks and citations omitted). Instead, "the proper objective of a court attempting to construe one of the subsections of 28 U.S.C. § 2680 is to identify those circumstances which are within the words and reason of the exception—no less and no more." Kosak v. United States , 465 U.S. 848, 853 n.9, 104 S.Ct. 1519, 79 L.Ed.2d 860 (1984) (internal quotation marks omitted).

We address today § 2680(a), commonly known as the discretionary-function exception. See, e.g. , Rosebush v. United States , 119 F.3d 438, 441 (6th Cir. 1997). It generally retains sovereign immunity for claims relating to the discretionary aspects of a federal employee's conduct.³ In dismissing plaintiff's complaint, the district court found that plaintiff's allegations of governmental misconduct fell within this exception. We review this conclusion de novo. Larry E. Parrish. P.C. v. Bennett , 989 F.3d 452, 455 (6th Cir. 2021).

III.

The discretionary-function exception "marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). This exception focuses on "the nature of the conduct, rather than the status of the actor." Id. at 813, 104 S.Ct. 2755. Section 2680(a) thus removes

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from the FTCA's sovereign-immunity waiver

[a]ny claim based upon an act or omission 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 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 Supreme Court has established a two-part test for courts to evaluate this exception's application. We "must first consider whether the action is a matter of choice for the acting employee." Berkovitz by Berkovitz v. United States , 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). And even if so, the exception only applies if that choice in judgment "is of the kind that the discretionary function exception was designed to shield." United States v. Gaubert , 499 U.S. 315, 322–23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (citation omitted). In other words, the government is entitled to sovereign immunity only if the complained-of actions are both discretionary and of the type the exception was designed to protect. If the actions are either non-discretionary or discretionary but unprotected, the government is not entitled to sovereign immunity.

We turn to the application of this test next, taking the two parts in turn.

A.

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