KUI MYLES V. USA, No. 20-55910 (9th Cir. 2022)
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Plaintiff works as an Immigration and Customs Enforcement (“ICE”) agent. In 2013, she reported to ICE that she was experiencing workplace harassment, and she alleged that Department of Homeland Security (“DHS”) agents responded by inventing baseless criminal wage theft charges against her. The district court dismissed Plaintiff’s complaint. With respect to Plaintiff’s malicious prosecution claim, the district court dismissed based on its holding that it lacked subject matter jurisdiction over the claim under the Federal Tort Claims Act’s (“FTCA”) discretionary function exception.
The Ninth Circuit reversed the district court’s dismissal—under a discretionary function immunity ruling under the FTCA. The panel held that the district court erred in dismissing Plaintiff’s malicious prosecution claim because the discretionary function exception under the FTCA did not apply to law enforcement investigations when a federal employee’s tactics during the investigation had no legitimate policy rationale.
In the FTCA, the federal government waived its sovereign immunity with respect to certain tort claims arising out of wrongdoing committed by federal employees acting within the scope of their employment. Sovereign immunity waiver is subject to several exceptions, including the discretionary function exception, wherein the federal government has retained sovereign immunity for claims that are “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” federal government. The panel rejected the government’s argument that Plaintiff had not carried her burden under Twombly and Iqbal’s pleading standards, as she had failed to sufficiently allege malice or lack of probable cause on the part of DHS officials.
Court Description: Federal Tort Claims Act The panel reversed the district court’s dismissal—under a discretionary function immunity ruling under the Federal Tort Claims Act (“FTCA”)—of a federal employee plaintiff’s malicious prosecution claim against the United States and individual officials. Plaintiff works as an Immigration and Customs Enforcement (“ICE”) agent. In 2013, she reported to ICE that she was experiencing workplace harassment, and she alleged that Department of Homeland Security (“DHS”) agents responded by inventing baseless criminal wage theft charges against her. The district court dismissed plaintiff’s complaint. With respect to plaintiff’s malicious prosecution claim, the district court dismissed based on its holding that it lacked subject matter jurisdiction over the claim under the FTCA’s discretionary function exception. The panel held that the district court erred in dismissing plaintiff’s malicious prosecution claim because the discretionary function exception under the FTCA did not apply to law enforcement investigations when a federal employee’s tactics during the investigation had no legitimate policy rationale. In the FTCA, the federal government waived its sovereign immunity with respect to certain tort claims arising out of wrongdoing committed by federal employees MYLES V. UNITED STATES 3 acting within the scope of their employment. Sovereign immunity waiver is subject to several exceptions, including the discretionary function exception, wherein the federal government has retained sovereign immunity for claims that are “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” federal government. 28 U.S.C. § 2680(a). To determine whether a claim falls within the scope of the discretionary function, the court conducts a two-step inquiry. First, the court assesses whether the allegedly wrongful conduct is discretionary. If so, the court determines whether the exercise of discretion is a decision “grounded in social, economic, and political policy.” Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). Preliminarily, the panel identified plaintiff’s specific allegations of agency wrongdoing. Plaintiff alleged, among other things, that DHS officials misrepresented to the Orange County District Attorney’s Office (“OCDA”) that plaintiff had “purposefully lied about overtime hours” in a manner that constituted “grand theft by an employee” under Cal. Penal Code § 487(b)(3), even though they knew that she had not lied about her overtime hours. She also alleged that DHS officials doctored evidence that she was submitting false overtime requests. The district court decided at step one of the analysis that the DHS agents acted within their discretion when they investigated plaintiff for workplace misconduct and reported that conduct to the OCDA. The panel assumed without deciding that the district court’s step one analysis was correct. The panel did not agree with the district court’s reasoning at step two. The panel held that the discretionary 4 MYLES V. UNITED STATES function exception did not provide refuge for conduct such as knowingly lying under oath, tampering with witnesses, or fabricating evidence. Such conduct of the type alleged by plaintiff had no role in the legitimate functioning of government and did not constitute a policy judgment susceptible to social, economic, or political analysis. The conduct, therefore, was not protected by the discretionary function exception. The panel rejected the government’s argument that plaintiff had not carried her burden under Twombly and Iqbal’s pleading standards, as she had failed to sufficiently allege malice or lack of probable cause on the part of DHS officials. The panel held that, at this stage of the proceedings, in which all uncontroverted factual allegations in the complaint must be taken as true and all factual disputes resolved in plaintiff’s favor, plaintiff alleged sufficient facts to plausibly support her malicious prosecution claim. Specifically, plaintiff alleged facts that satisfied the three elements of a malicious prosecution action in California: the state criminal proceeding against plaintiff was commenced by or at the direction of federal agents and terminated in plaintiff’s favor, was brought without probable cause; and was initiated with malice. The panel remanded for further proceedings. The panel addressed additional issues in a concurrently filed memorandum disposition. MYLES V. UNITED STATES 5
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