United States Court of Appeals
For the First Circuit
No. 03-2081
FRANK BOLDUC ET AL.,
Plaintiffs, Appellants,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.
Stephen Hrones, with whom Hrones, Garrity & Hedges was on
brief, for appellants.
Anita Johnson, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, and George B.
Henderson, II, Assistant United States Attorney, were on brief, for
appellee.
March 23, 2005
SELYA, Circuit Judge. This case arises out of a series
of apparent blunders on the part of the Federal Bureau of
Investigation (FBI), leading to the wrongful conviction of two men
on bank robbery charges. After the truth came to light, the trial
court set aside the convictions. The men then sued the United
States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§
1346(b), 2671-2680. Following a bench trial, the district court
denied relief. See Bolduc v. United States, 265 F. Supp. 2d 153
(D. Mass. 2003). The court acknowledged the government's
jurisdictional challenges but opted to decide the case on the
merits. See id. at 154.
On appeal, we think it more orderly to treat the question
of jurisdiction as a threshold matter. Concluding, as we do, that
the FTCA does not support the assertion of federal subject matter
jurisdiction, we affirm the judgment on that alternative ground.
I. BACKGROUND
The chronicle of relevant events takes us back more than
sixteen years. We recount the facts as supportably found by the
district court. See id. at 155-69.
On June 28, 1988, two middle-aged white men attempted to
rob a branch of the First Wisconsin Bank situated at the Southgate
Mall in Greenfield, Wisconsin. The FBI mounted an investigation
into the Southgate incident. Agent Daniel Craft led the probe.
Because the thieves came away from Southgate empty-handed, Craft
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considered the crime a "nothing robbery" and delegated substantial
investigative responsibility to a rookie, Agent Derrel Craig.
On November 15, 1988, Craft and Craig rounded up four
Southgate eyewitnesses and showed them a photographic array. The
array did not include pictures of either the appellants or the men
who ultimately were determined to be the actual culprits.
Nevertheless, two of the four eyewitnesses selected the photographs
of Allan Daniel Wilwerding and Douglas Wayne Thompson as depictions
of the robbers, and another eyewitness fingered Wilwerding. The
agents recorded the results in separate memos, known in FBI
parlance as 302 reports. The two sets of reports attributed
different levels of certitude to the eyewitness identifications:
Craft's reports indicated that two of the eyewitnesses had
described Wilwerding and Thompson as "similar" to the robbers
whereas Craig's reports noted that those eyewitnesses had
identified the men as "identical" to the robbers. The reports
regarding the eyewitness who had identified only Wilwerding were
also inconsistent; again, Craft's report attributed a "similar"
identification to that eyewitness whereas Craig's report recorded
an "identical" match.
As lead investigator, Craft bore responsibility for
finalizing the 302 reports by reviewing them for errors and
initialing them. According to FBI policy, once Craft finalized the
302 reports, he was required to place them in the case file. The
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court below found that, in this instance, Craft ignored this policy
and excluded Craig's 302 reports from the case file because he
unilaterally decided that they inaccurately reported the strength
of the identifications. Id. at 157. The court also found it
doubtful that Craft's 302 reports were in the case file when the
FBI turned it over to the United States Attorney. Id. It is
undisputed that FBI agents have no discretion to withhold
particular 302 reports from a case file. See id.
On October 18, 1989, two middle-aged white men stuck up
the Oklahoma Avenue branch of the First Wisconsin Bank in Milwaukee
and absconded with $400,000. Agent Craft again took the lead in
the ensuing investigation. This time, however, his aide-de-camp
was Agent Margaret Cronin. The general description of the Oklahoma
Avenue perpetrators reminded Cronin, a Boston native, of an article
she had read in a Boston newspaper describing arrests in Lowell,
Massachusetts, following an armored car robbery in nearby
Chelmsford. Those arrested included two middle-aged white men, and
Cronin thought that she perceived some similarities.
In early 1990, on Cronin's initiative, the Milwaukee
office of the FBI included photographs of plaintiffs-appellants
Frank Bolduc and Francis Larkin (each of whom had been detained in
connection with the Chelmsford armored car robbery) in an array
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displayed to the Southgate and Oklahoma Avenue eyewitnesses.1 Some
witnesses identified Bolduc and/or Larkin as the culprits; others
were unable to make any positive identifications at that time.
Encouraged to some extent by these results, the FBI arranged to
have the appellants transported to Wisconsin and placed them in a
lineup. Several (but not all) of the eyewitnesses to the Southgate
and Oklahoma Avenue incidents identified them as the robbers. A
federal grand jury, sitting in Milwaukee, subsequently indicted the
appellants for the attempted armed robbery of Southgate and the
armed robbery of Oklahoma Avenue, see 18 U.S.C. § 2113, and for
related firearms offenses, see id. § 924(c)(1).
The trial went forward in February of 1991. The
prosecution relied entirely upon eyewitness identifications,
including the testimony of the same three witnesses who previously
had identified others (Wilwerding and Thompson) as "similar" or
"identical" to the Southgate bandits; this time, the trio made
positive identifications of Bolduc and/or Larkin. Neither the
prosecutor nor the witnesses themselves mentioned their earlier
(inconsistent) match-ups. The defense relied mainly upon alibi
testimony indicating that the appellants were in the Boston area
when the crimes were committed. The jury found the appellants
1
Larkin died while this suit was pending and the administrator
of his estate has been substituted as a party plaintiff in his
place and stead. See Fed. R. Civ. P. 25(a).
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guilty of all charges and, on May 24, 1991, the district court
sentenced both men to serve lengthy prison terms.2
Following the imposition of sentence, federal officials
returned Bolduc to a Massachusetts state penitentiary to resume
serving a life sentence for an earlier second-degree murder
conviction, which the parole board had reinstated upon Bolduc's
arrest for his putative involvement in the Chelmsford armored car
robbery. Upon learning of the federal convictions, however,
Massachusetts authorities decided to dismiss the charges pending
against Bolduc and Larkin with respect to the armored car caper.
In their view, the appellants' ages and the length of their federal
sentences contradicted the need to seek additional prison time.
Despite this decision, the Massachusetts parole board determined
that Bolduc's federal conviction furnished sufficient grounds to
support the revocation of his parole and, therefore, he remained in
state prison.
Notwithstanding the appellants' arrests and
incarceration, similar robberies continued to plague Midwestern
banks. More than six years after the appellants were sentenced,
2
The court sentenced Bolduc to 280 months for the attempted
robbery at Southgate (count 1), 60 months for a related firearms
charge (count 2), 280 months for the Oklahoma Avenue robbery (count
3), and 240 months for a related firearms charge (count 4). The
sentences on counts 1 and 3 were to run concurrently, followed by
the sentence for count 2 and, finally, the sentence for count 4.
The court sentenced Larkin to concurrent terms for counts 1 and 3
(each 90 months), followed by a consecutive 60-month term for count
2 and a further consecutive 240-month term for count 4.
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the FBI arrested William Kirkpatrick on suspicion of involvement in
several of the more recent robberies. Though incarcerated, Bolduc
caught wind of this turn of events and asked Kirkpatrick's attorney
for any available information about the Southgate and Oklahoma
Avenue robberies. The lawyer sent Bolduc a packet containing,
inter alia, Agent Craig's 302 reports anent the November 1988 photo
array. It was in that roundabout way that Bolduc first learned of
this exculpatory evidence. Larkin learned of the evidence at an
even later date.
In time, Kirkpatrick confessed that he and a partner had
undertaken both the Southgate and Oklahoma Avenue heists. The
appellants filed federal habeas petitions, see 28 U.S.C. § 2255,
which the government did not oppose. On June 11, 1999, a federal
district judge granted the petitions, vacated the appellants'
sentences, and issued certificates of innocence. Larkin was
released from federal custody and Bolduc, relying on the
certificate of innocence, successfully petitioned the Massachusetts
parole board for reinstatement of his parole.
II. TRAVEL OF THE CASE
Following their release, the appellants commenced a civil
action in the United States District Court for the District of
Massachusetts in an effort to recover money damages for the eight
years that they had languished in prison. Their complaint
presented claims under the FTCA against the United States for
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malicious prosecution, false imprisonment, abuse of process, and
negligent supervision, as well as a Bivens claim against Agent
Craft, see Bivens v. Six Unknown Named Agents of FBN, 403 U.S. 388,
389 (1971). The district court dismissed the malicious
prosecution, abuse of process, and false imprisonment counts for
failure to state claims upon which relief could be granted, see
Fed. R. Civ. P. 12(b)(6), and dismissed the Bivens claim for want
of in personam jurisdiction, see Fed. R. Civ. P. 12(b)(2). None of
these rulings have been contested on appeal and we abjure any
further discussion of them.3 Withal, the district court permitted
the negligent supervision claim to go forward and subsequently
allowed the appellants to add a straight negligence claim under the
FTCA. Both claims were premised on the allegation that the FBI's
withholding of the above-described 302 reports deprived the
appellants of the benefit of exculpatory evidence before and during
the criminal trial, and thus led to their wrongful convictions.
The parties engaged in extensive discovery. The
government challenged the existence of subject matter jurisdiction
for the first time in a motion served almost two months after the
deadline for filing dispositive motions had passed. Subject matter
jurisdiction is not waivable, and a party cannot confer subject
3
On October 21, 2002, the lower court granted the appellants'
motion to transfer the claim against Craft to the United States
District Court for the Eastern District of Wisconsin. The docket
of that court does not indicate that the appellants ever perfected
the transfer.
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matter jurisdiction upon a federal court by failing to assert that
defense in a timely manner. See Quinn v. City of Boston, 325 F.3d
18, 26 (1st Cir. 2003); Irving v. United States, 162 F.3d 154, 160
(1st Cir. 1998) (en banc). Still, the belated filing of a motion
to dismiss for want of subject matter jurisdiction can have
consequences in terms of a court's case-management decisions. So
it was here: the district court elected to withhold consideration
of the jurisdictional issue until after the trial.
The appellants' two remaining claims — negligence and
negligent supervision under the FTCA — were tried to the district
court for four days. The court then requested post-trial briefing.
The government's memorandum raised a litany of defenses, including
a renewed plea that the court lacked subject matter jurisdiction.
On July 2, 2003, the district court filed a lengthy
rescript in which it ordered judgment in favor of the United States
on the ground that the appellants had not proved that the FBI's
failure to provide the exculpatory 302 reports had harmed them.
See Bolduc, 265 F. Supp. 2d at 154, 171. The court's rationale is
complicated, see id. at 154, 169-71, and the appellants bitterly
dispute it. We need not set foot on that battlefield: federal
courts are courts of limited jurisdiction and, in the circumstances
of this case, we consider ourselves bound to address the
jurisdictional issue first, regardless of the government's failure
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to raise it in a more timely fashion.4 See Irving, 162 F.3d at 160
(admonishing that the federal courts "have an affirmative
obligation to examine jurisdictional concerns on their own
initiative" even if the parties have neglected them); Berner v.
Delahanty, 129 F.3d 20, 23 (1st Cir. 1997) (noting "that a court
should first confirm the existence of rudiments such as
jurisdiction . . . before tackling the merits of a controverted
case"). As matters turn out, resolution of that issue terminates
this appeal.
III. SUBJECT MATTER JURISDICTION
Consistent with the foregoing, we turn directly to the
jurisdictional issue. We begin with first principles: it is
apodictic that "[a]s a sovereign nation, the United States is
immune from liability except to the extent that it consents to
suit." Dynamic Image Techs., Inc. v. United States, 221 F.3d 34,
39 (1st Cir. 2000). The FTCA evinces a waiver of sovereign
immunity with respect to certain categories of torts committed by
4
We recognize that, in some circumstances, a court may avoid
a jurisdictional quandary if a tidier resolution on the merits will
dispose of the case in favor of the party challenging jurisdiction.
See, e.g., United States v. Stoller, 78 F.3d 710, 715 (1st Cir.
1996). That is a narrow exception, however, especially in view of
a federal court's "special obligation to 'satisfy itself not only
of its own jurisdiction, but also that of the lower courts in a
cause under review.'" Bender v. Williamsport Area Sch. Dist., 475
U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244
(1934)); accord Steel Co. v. Citizens for a Better Env't, 523 U.S.
83, 94 (1998). In this case, we deem it prudent to hew to the
general rule rather than the long-odds exception to it.
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federal employees in the scope of their employment. See 28 U.S.C.
§ 1346(b)(1). It simultaneously grants the federal district courts
jurisdiction over such claims. See id.; see also FDIC v. Meyer,
510 U.S. 471, 475-77 (1994). Thus, we must determine whether this
waiver of sovereign immunity extends to the appellants' claims of
negligence and negligent supervision, so that those claims fall
within the jurisdictional grant of section 1346(b)(1). See Meyer,
510 U.S. at 477.
That grant extends to claims
against the United States, for money damages,
accruing on and after January 1, 1945, for
injury or loss of property, or personal injury
or death caused by the negligent or wrongful
act or omission of any employee of the
Government while acting within the scope of
his office or employment, under circumstances
where 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.
28 U.S.C. § 1346(b)(1). A further explication of the last clause
is to be found in 28 U.S.C. § 2674, which provides that the United
States only "shall be liable . . . in the same manner and to the
same extent as a private individual under like circumstances." A
bundle of exceptions, mostly in the nature of exclusions and carve-
outs, circumscribes the FTCA's waiver of sovereign immunity. See
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28 U.S.C. § 2680(a)-(n); see also Dynamic Image Techs., 221 F.3d at
39.5
We add a caveat. As with all waivers of sovereign
immunity, the FTCA must be "construed strictly in favor of the
federal government, and must not be enlarged beyond such boundaries
as its language plainly requires." United States v. Horn, 29 F.3d
754, 762 (1st Cir. 1994). With this principle firmly in mind, we
undertake our jurisdictional analysis.
As said, the appellants prosecuted two FTCA claims: one
for negligence (based on Agent Craft's alleged failure to include
the above-described 302s in the case file turned over to federal
prosecutors and ultimately to the defense) and one for negligent
supervision (based on the alleged failure of Craft’s superiors to
5
Only two of these exceptions are relevant to this case. They
state in pertinent part that the provisions of the FTCA shall not
apply to:
(a) Any claim based upon an act or omission of an
employee of the Government . . . 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 . . . .
* * *
(h) Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse
of process, libel, slander, misrepresentation, deceit, or
interference with contract rights [subject to certain
provisos] . . . .
28 U.S.C. § 2680(a), (h).
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oversee him more closely). We consider the jurisdictional bona
fides of each claim separately.
A. The Negligence Claim.
The "law of the place" provides the substantive rules to
be used in deciding FTCA actions. 28 U.S.C. § 1346(b)(1). The
phrase "law of the place" refers to the law of the state in which
the allegedly tortious acts or omissions occurred. See Meyer, 510
U.S. at 478; Castro v. United States, 775 F.2d 399, 405 (1st Cir.
1985) (per curiam). Federal constitutional or statutory law cannot
function as the source of FTCA liability. See Meyer, 510 U.S. at
478 (holding that "the United States simply has not rendered itself
liable under § 1346(b) for constitutional tort claims"); Sea Air
Shuttle Corp. v. United States, 112 F.3d 532, 536-37 (1st Cir.
1997) (explaining that there can be no FTCA jurisdiction where the
challenged government conduct has no parallel in the private sector
and the asserted liability arises from a federal statutory or
regulatory obligation with no comparable common law principle under
which private persons would be held liable); Zabala Clemente v.
United States, 567 F.2d 1140, 1149 (1st Cir. 1978) (establishing
that "even where specific behavior of federal employees is required
by federal statute, liability to the beneficiaries of that statute
may not be founded on the Federal Tort Claims Act if state law
recognizes no comparable private liability"). It follows that the
appellants cannot premise jurisdiction on the rule of Brady v.
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Maryland, 373 U.S. 83 (1963),6 but, rather, must look to Wisconsin
law and must identify in that body of jurisprudence a basis for
holding a private person liable in tort for acts and omissions
comparable to those committed (or, at least, allegedly committed)
by Agent Craft. See Davric Me. Corp. v. U.S. Postal Serv., 238
F.3d 58, 64 (1st Cir. 2001).
To maintain a cause of action for negligence in
Wisconsin, a plaintiff must show "(1) [a] duty of care on the part
of the defendant; (2) a breach of that duty; (3) a causal
connection between the conduct and the injury; and (4) an actual
loss or damage as a result of the injury." Rockweit v. Senecal,
541 N.W.2d 742, 747 (Wis. 1995). Building on this fairly
conventional formulation, the appellants argue that Agent Craft's
failure to ensure the turnover of exculpatory evidence constituted
a breach of a duty cognizable under Wisconsin tort law.
To satisfy the duty prong, the appellants rely in part on
the duty of state government (and, particularly, state prosecutors)
to disclose exculpatory evidence. See, e.g., Appellants' Reply Br.
at 5-6 (citing Wis. Stat. § 971.23(1)). This effort is
unconvincing. By the FTCA's plain terms, a waiver of sovereign
immunity attaches only where "a private person[] would be held
liable." 28 U.S.C. § 1346(b)(1) (emphasis supplied). The
6
Broadly stated, Brady imposes a constitutional duty on
prosecutors to turn over exculpatory evidence to a defendant in a
criminal case. See Brady, 373 U.S. at 87.
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appellants have not pointed to any instance in which Wisconsin has
imposed private liability on a prosecutor or other state agent for
a failure to disclose exculpatory evidence. That is a fatal flaw,
for the federal government does not yield its immunity with respect
to obligations that are peculiar to governments or official-
capacity state actors and which have no private counterpart in
state law. See Franco de Jerez v. Burgos, 947 F.2d 527, 528 (1st
Cir. 1991) (speaking in terms of the negligence of government
employees as such is insufficient to satisfy the FTCA's "private
person" requirement); DiMella v. Gray Lines of Boston, Inc., 836
F.2d 718, 720 (1st Cir. 1988) (stating that "[w]hatever liability
[a state] may have chosen to assume for itself as a matter of
governmental policy has no bearing on the liability of . . .
private persons, the standard the federal government has
accepted"). Because Wisconsin's recognition of a governmental duty
to disclose exculpatory evidence does not ground private liability
under that state's law, it cannot serve as a hook on which to hang
federal jurisdiction here.
This conclusion does not end our inquiry. We nonetheless
must inquire whether there is any way in which Wisconsin might
impose tort liability upon a private party under circumstances
sufficiently similar to those present in this case, that is, a
person who comes into possession of exculpatory evidence as part of
an official investigation and carelessly fails to disclose that
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evidence to prosecutors (and, ultimately, to the accused). This
means, in effect, that we must look for "some relationship between
the governmental employee[s] and plaintiff to which state law would
attach a duty of care in purely private circumstances." Sea Air
Shuttle, 112 F.3d at 537 (citation and internal quotation marks
omitted).
In formulating its test for negligence, Wisconsin has
adopted a broad definition of the element of duty. See A. E. Inv.
Corp. v. Link Builders, Inc., 214 N.W.2d 764, 766 (Wis. 1974)
(explaining that Wisconsin has embraced a rationale that recognizes
a duty wherever harm is foreseeable). As a result of this choice,
Wisconsin courts, rather than examining the relationship between
the parties to determine the existence vel non of a duty, focus on
the foreseeability of harm in order to ascertain whether a duty
arises. This means that "[t]he duty of any person is the
obligation of due care to refrain from any act which will cause
foreseeable harm to others even though the nature of that harm and
the identity of the harmed person or harmed interest is unknown at
the time of the act." Id.
This formulation casts a wide net. Indeed, the Wisconsin
Supreme Court — the most authoritative arbiter of Wisconsin law —
has ruminated that "[i]n Wisconsin, everyone has a duty of care to
the whole world." Miller v. Wal-Mart Stores, Inc., 580 N.W.2d 233,
238 (Wis. 1998). In these general terms, then, a private person
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might be said to owe a duty to a person suspected of crime — the
duty being to exercise due care in the handling of exculpatory
evidence so as to prevent the foreseeable harm of wrongful
conviction. Cf. Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432,
439 (Wis. 1994) ("Wisconsin law considers conduct to be negligent
if it involves a foreseeable risk of harm to anyone.").
Even if we assume the existence of such a duty, that
assumption does not take the appellants as far as they need to go.
Under the FTCA, the relevant inquiry is not whether state law might
assign a duty to a private person in the same or similar
circumstances, but, rather, whether state law would impose
liability on a private person in the same or similar circumstances.
See 28 U.S.C. §§ 1346(b)(1), 2674. The stating of a claim for
negligence (the failure to exercise due care by one having a
general duty to do so in the face of foreseeable harm) does not
automatically mean that liability would attach under Wisconsin law.
The contrary is true: "[i]n Wisconsin, the doctrine of public
policy, not the doctrine of duty, limits the scope of a defendant's
liability." Bowen, 517 N.W.2d at 439; see also Rockweit, 541
N.W.2d at 750 (stating that "the determination to deny liability is
essentially one of public policy rather than of duty or
causation"); Schuster v. Altenberg, 424 N.W.2d 159, 164 (Wis. 1988)
("[O]nce it is determined that a negligent act has been committed
and that the act is a substantial factor in causing the harm, the
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question of duty is irrelevant and a finding of nonliability can be
made only in terms of public policy."). Because the measure for
determining the federal government's consent to suit under the FTCA
is a private person's potential liability under state law, we turn
to Wisconsin's doctrine of public policy.
The question of whether public policy precludes tort
liability is "a question of law solely for judicial decision."
Morgan v. Pa. Gen. Ins. Co., 275 N.W.2d 660, 667 (Wis. 1979). The
Wisconsin Supreme Court has enumerated six factors relevant to this
determination. See Miller, 580 N.W.2d at 240. We need not call
the roll, however, as that court has decided a case directly on
point dealing with a private person in markedly similar
circumstances. We look to that decision for guidance.
In Bromund v. Holt, 129 N.W.2d 149 (Wis. 1964), the
plaintiff brought an action in negligence against a doctor, in his
private capacity, for careless performance of an autopsy
commissioned by law enforcement officers in the course of their
investigation into the death of the plaintiff's wife. Id. at 150-
51. The plaintiff asserted that the doctor's negligent performance
of the autopsy and subsequent proffer of a flawed cause-of-death
opinion led directly to the plaintiff's arrest, prosecution, and
resulting damages. See id. at 150. The court framed the question
presented by the plaintiff's suit as whether, assuming that
negligence and causation were present, the plaintiff's interest in
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"freedom from unjustifiable criminal litigation" is the "type of
interest [that] is protected against unintentional invasion." Id.
at 151.
The court then undertook a public policy analysis to
determine whether imposing liability on the doctor would be
appropriate. It began by noting that "[t]he law, for reasons of
policy, closely circumscribes the types of causes of action which
may arise against those who participate in law enforcement activity
or in the functioning of the judicial system." Id. at 152. It
went on to observe that, in civil litigation, such defendants often
have a relationship to the judicial process that affords them
immunity from private liability. See id. (citing the protections
afforded to, inter alios, prosecutors and witnesses). It next
determined that, even when a defendant's relationship to the
judicial process does not afford a specific immunity, "he is still
not held liable to the person who has been subjected to
unjustifiable prosecution in the absence of malice." Id. at 153.
The court's reasoning is instructive. In its view, law
enforcement and the safeguarding of society from crime would suffer
if government agents (and outsiders hired to assist in law
enforcement activities) were subject to private liability for
damages arising from simple negligence in the performance of their
duties. See id. at 153-54. The Bromund court held that:
even if a person employed by the public to
assist in law enforcement . . . does not enjoy
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immunity, . . . the same considerations of
public policy which require proof of malice as
an element of an action for malicious
prosecution or defamation under these
circumstances must exclude liability founded
upon mere negligence. In our opinion, the
interest in freedom from unjustifiable
criminal litigation is, as a matter of policy,
not protected from unintentional tort.
Id. at 154.
This holding has particular pertinence for present
purposes. Assuming arguendo that the appellants could demonstrate
negligence, causation, and actual harm — a matter on which we take
no view — Wisconsin law nonetheless would preclude the imposition
of private liability on a private person in circumstances similar
to those of Agent Craft.7 Under Bromund, malice is a prerequisite
for imposing private tort liability upon a private individual
working with law enforcement when the performance of his duties has
resulted in an unjustifiable criminal prosecution and/or
conviction. See id. at 153-54. Because the appellants have failed
to offer a scintilla of proof of malice, they have failed to
establish a basis under the law of the place for imposing liability
upon a private person in like circumstances. Consequently, we hold
7
A party can, of course, maintain actions for malicious
prosecution or abuse of process under Wisconsin law. The
appellants asserted such claims here. The district court dismissed
the malicious prosecution claim for failure to plead the necessary
element of malice and the abuse of process claim for failure to
assert that the withholding of the 302s was willful or done with an
ulterior purpose. Bolduc v. United States, No. 01-CV-11376, 2002
WL 1760882, at *3-*4 (D. Mass. July 30, 2002). The appellants have
not challenged either of those rulings on appeal.
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that the FTCA does not waive the federal government's sovereign
immunity vis-à-vis the appellants' negligence claim. It follows
inexorably that there is no federal subject matter jurisdiction
over that component of the case.
B. The Negligent Supervision Claim.
This leaves the negligent supervision claim. Wisconsin
recognizes the tort of negligent supervision. Miller, 580 N.W.2d
at 241. Under Wisconsin law, a breach of the general duty to
supervise is actionable if two causation components exist: first,
the wrongful act of an employee must have been a cause-in-fact of
the plaintiff's injury; second, the employer's negligence must have
been a cause-in-fact of the employee's wrongful act. Id. at 239.
For these purposes, it is not necessary that the employee's
wrongful act, in and of itself, constitute an actionable tort. Id.
Hence, our conclusion that the United States cannot be held
vicariously liable for Agent Craft's negligence in the handling of
exculpatory evidence, see supra Part III(A), does not negate the
possibility that the United States might be held directly liable
for negligent supervision.
We need not hazard a public policy analysis to determine
whether a private employer in like circumstances would face
liability for negligent supervision under Wisconsin law. Even if
the appellants could successfully urge the affirmative of that
proposition — a matter on which we do not opine — the discretionary
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function exception to the FTCA, 28 U.S.C. § 2680(a), would divest
the federal courts of jurisdiction over this claim. We explain
briefly.
The FTCA insulates the United States from "[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." Id. This proviso balances
"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.
Varig Airlines, 467 U.S. 797, 808 (1984). When a claim falls
within the contours of section 2680(a), it must be dismissed for
lack of subject matter jurisdiction. See Kelly v. United States,
924 F.2d 355, 360 (1st Cir. 1991).
To determine whether the discretionary function proviso
applies, an inquiring court must first identify the government
conduct giving rise to the claim in question. Muniz-Rivera v.
United States, 326 F.3d 8, 15 (1st Cir. 2003). In assaying that
conduct, the court must examine its nature (as opposed to the
status of the government actor), Berkovitz v. United States, 486
U.S. 531, 536 (1988), engaging in a binary analysis to ascertain
whether Congress sought to shelter that kind of conduct from tort
liability, Muniz-Rivera, 326 F.3d at 15.
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The first part of that analysis asks whether the conduct
itself is discretionary, that is, "a matter of choice for the
acting employee." Berkovitz, 486 U.S. at 536. This definition
excludes actions prescribed by federal statute, regulation, or
policy. Id. If the court concludes that the conduct is not a
product of discretion, the analysis ends and the discretionary
function proviso drops out of the case. See Kelly, 924 F.2d at 360
(noting that a court will proceed to the second furcula of the
discretionary function test only if it concludes that the relevant
conduct is discretionary). If, however, the court concludes that
the conduct is a product of discretion, it then must determine
whether the exercise of that discretion is susceptible to policy-
related judgments. See Berkovitz, 486 U.S. at 537.
Decisions are thought to be susceptible to policy-related
judgments if they involve an "unrestrained balancing of
incommensurable values," including a differential allocation of
resources among various political objectives. See Shansky v.
United States, 164 F.3d 688, 695 (1st Cir. 1999). On this issue,
it is the plaintiff who must carry the devoir of persuasion. See
id. at 692 (explaining that the law presumes that the exercise of
discretion implicates policy and that it is the plaintiff's burden
to demonstrate that the decision is not susceptible to policy-
related judgments). Only if the conduct is both discretionary and
policy-driven will section 2680(a) strip the court of subject
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matter jurisdiction. See Muniz-Rivera, 326 F.3d at 15; Attallah v.
United States, 955 F.2d 776, 783 (1st Cir. 1992).
Against this backdrop, the appellants argue that the FBI
had an obligation under federal law to disclose exculpatory
evidence to them and, therefore, that the conduct relevant to their
claim was not discretionary. This argument confuses the
ministerial duty of FBI agents to place all 302 reports in the case
file with the responsibility of FBI supervisors to oversee the work
of the agents under their command. It is the latter activity that
gives rise to the negligent supervision claim. On this issue, it
is irrelevant whether Agent Craft had discretion to determine
whether particular 302 reports should be left out of the case file.
See Attallah, 955 F.2d at 783 (explaining that the judicial inquiry
must focus "on the permissible range of action available to the
government employee allegedly at fault").
Having identified the relevant activity — the FBI's
oversight of Agent Craft's handling of the 302s — we next must
consider whether that activity is discretionary and susceptible to
policy-related judgments. The appellants assign fault at a general
level to the quality of the supervision. At trial, they adduced
evidence that Agent Craft sometimes initialed 302 reports and other
documents without reviewing them thoroughly (even though his
supervisors had advised him to be more fastidious in performing
that task) and that one supervisor had written a performance
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appraisal suggesting that Craft had room for improvement in this
area. The appellants have not shown, however, that Craft's
supervisors were constrained by any law, regulation, or policy to
respond in a particular way upon learning that an agent was not
proficient at a particular task. By the same token, they have not
adverted to any federal statute, regulation, or policy that
dictates a specific regime of oversight that FBI hierarchs must
practice to ensure that agents handle exculpatory evidence
properly. Where no specific action is required within a category
of conduct and the government actors in question have latitude to
make decisions and choose among alternative courses of action, the
conduct is discretionary. See Irving, 162 F.3d at 163-64. In this
instance, there is ample room for choice in the agency's
supervision of its work force.
If more were needed — and we doubt that it is — this
court has recognized, in the context of supervision, that in the
absence of a statutory or regulatory regime that sets out
particulars as to how an agency must fulfill its mandate, the
development and management of a supervisory model is a matter of
agency discretion. Attallah illustrates the point. There, we held
that supervisory decisions of the Customs Service concerning the
oversight of customs agents were discretionary in nature. See
Attallah, 955 F.2d at 784-85.
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The appellants argue that, notwithstanding this
precedent, the supervisory decision here is beyond the domain of
discretion. They assert that even if a claim for negligent
supervision would generally be barred, the bar should not apply
here because it is unlawful for a member of the prosecution team to
withhold exculpatory evidence and it cannot be within an official's
discretion to permit unlawful behavior. To bolster this construct,
they cite Tonelli v. United States, 60 F.3d 492 (8th Cir. 1995),
for the proposition that "[f]ailure to act after notice of illegal
action does not represent a choice based on plausible policy
considerations." Id. at 496.
Tonelli is easily distinguishable. The court there
recognized that "[i]ssues of employee supervision . . . generally
involve the permissible exercise of policy judgment and fall within
the discretionary function exception," id., but left open the
possibility that an employer who had notice of ongoing illegal
activity would not be entitled to claim that a failure to act was
within the scope of discretion, see id. It therefore determined
that summary judgment would be inappropriate because a factual
dispute persisted over whether the employer had notice of the
illegal actions of its employees. Id. In this case, unlike in
Tonelli, we have the benefit of a full trial record, and we find
nothing to support the premise that FBI supervisors in the
Milwaukee office had notice of any illegal employee activity. As
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a result, we need not decide whether that situation would be
subject to the conclusions that we otherwise reach.
That ends this aspect of the matter. In Attallah, we
commented that supervision over customs agents "certainly involves
a degree of discretion . . . of the kind that Congress sought to
protect through the discretionary function exception." 955 F.2d at
784. We think that comment is fully applicable here. Accordingly,
we hold that the FBI's supervision of Craft's job performance was
discretionary in nature.
We come, then, to the question of whether this
discretionary conduct was grounded in policy. On that issue, the
government benefits from the presumption that a supervisor's
discretionary acts are grounded in policy. See United States v.
Gaubert, 499 U.S. 315, 324 (1991); Muniz-Rivera, 326 F.3d at 17.
It is the plaintiff's burden to rebut this presumption and
demonstrate that particular discretionary conduct is not
susceptible to policy-related judgments. See Shansky, 164 F.3d at
692. In this instance, the appellants have wholly failed to carry
that burden. We conclude, therefore, that the FBI's supervisory
decisions were a matter of agency discretion and involved policy
judgments of a kind that the discretionary function proviso was
intended to shield. See Attallah, 955 F.2d at 784.
To say more on this point would be to paint the lily.
Based on the foregoing, we hold that the discretionary function
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proviso, 28 U.S.C. § 2680(a), divests the federal courts of
jurisdiction over the appellants' claim of negligent supervision.8
IV. CONCLUSION
This is a sad case. It shows that even the nation's
premier law enforcement agency sometimes bungles. But Congress has
never enacted a wholesale waiver of the federal government's
sovereign immunity from suit, so it is unsurprising that the FTCA
does not cover every error by a federal agent. Neither of the two
claims at issue here — one for negligence and the other for
negligent supervision — comes within the carapace of the carefully
limited waiver of federal sovereign immunity that the FTCA denotes.
We need go no further. We hold that the district court
lacked subject matter jurisdiction to hear the appellants' claims.
On this ground, we affirm the entry of judgment in favor of the
United States.
Affirmed.
8
For consistency's sake, we affirm the entry of judgment in
favor of the United States with respect to this claim on an
available jurisdictional ground. We note, however, that we have
scoured the record and have found no support for the contention
that any negligence on the part of FBI supervisors was a cause-in-
fact of Agent Craft's failure to place the 302s in the case file.
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