Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:07-cv-00171-SEB-TAB-Sarah Evans Barker, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge
ARGUED SEPTEMBER 12, 2008
Before RIPPLE, ROVNER, and EVANS, Circuit Judges.
In August 2003 a security guard with General Security Services Corporation stood on the roof of the Minton-Capehart Federal Building in Indianapolis, Indiana-inexplicably naked, alone, and locked out of the building. Later that day Maureen Reynolds, a General Security officer, learned of the incident, but not the nudity, and wrote up a report. The Federal Protective Service (FPS) launched an investigation as well, which culminated in a state prosecution against Reynolds for false reporting. Reynolds's bench trial resulted in an acquittal. But the state criminal proceedings cost Reynolds her job, so she sued the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2671-80, asserting that FPS investigators had initiated a malicious prosecution by submitting knowingly false information to the Marion County prosecutor and the Marion County Superior Court. The district court dismissed Reynolds's complaint for lack of subject-matter jurisdiction, see FED. R. CIV. P. 12(b)(1), citing various grounds, including that the discretionary-function exception to the FTCA shielded the actions of FPS investigators, see 28 U.S.C. § 2680(a). We disagree and remand for further proceedings.
For purposes of this appeal, we accept the allegations in Reynolds's complaint as true and draw all reasonable inferences in her favor. See Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003). During the relevant period General Security contracted with the Department of Homeland Security to protect the Minton-Capehart building. In August 2003 a naked General Security guard locked himself out on the roof of the building. Eventually he was able to get the attention of another guard, who unlocked the door and let him inside. When Reynolds arrived for her shift that evening, both guards approached her and related the incident, though neither one mentioned the nudity. Shortly thereafter Reynolds filed an incident report detailing what she had learned about the episode.
Six weeks later FPS opened an investigation. FPS officers Mark Lambert and Mark Fullerton questioned the two security guards, and both admitted that one of them had been naked on the roof that day. Three days later Lambert and Fullerton interviewed Reynolds, who relayed only what she knew at the time-that a security guard had locked himself out of the building and that one of his peers had let him back in. Although Lambert and Fullerton knew that Reynolds was unaware of the nudity, they nevertheless approached the Marion County prosecutor's office and supplied an affidavit of probable cause averring that Reynolds had lied to them. That affidavit became the basis for an information charging Reynolds with false-i.e., incomplete-reporting. In light of the criminal charge, General Security placed Reynolds on an indefinite and unpaid leave-of-absence. Reynolds was eventually acquitted after a bench trial, but General Security still fired her after the verdict because of the allegations of criminal activity.
After losing her job, Reynolds sued the United States under the FTCA, see 28 U.S.C. §§ 1346(b)(1), 2671-80, claiming that Lambert and Fullerton, acting in their capacity as federal law enforcement officers, had "instigated and initiated" a malicious prosecution. The FTCA authorizes suits against the United States for torts committed by federal officials if the same acts would create liability for private persons under applicable state tort law. See 28 U.S.C. § 1346(b)(1). But the FTCA contains various exceptions to the waiver of sovereign immunity; there is no governmental liability, for example, for claims arising from an employee's performance of a discretionary function. See 28 U.S.C. § 2680(a).
At the government's urging, the district court dismissed the complaint for lack of subject-matter jurisdiction, see FED. R. CIV. P. 12(b)(1), citing three separate grounds.
First, the court concluded that the actions of Lambert and Fullerton were "clearly discretionary" under 28 U.S.C. § 2680(a) because "the decisions they made and the actions they took were tied to their own view of what public policy required." The court elaborated:
The guidelines governing the work of the FPS leave room for independent judgment on the part of the officers and the exercise of discretion in deciding what evidence to gather and credit and whom to investigate and so forth. Indeed, law enforcement judgment is the quintessential discretionary activity, requiring the performance and weighing of a wide array of subjective factors in order to protect the safety and security of the federal facility.
Second, the court asserted, Lambert and Fullerton are government contractors, not "employees of the government," and therefore Reynolds could not sue the United States under the FTCA. See 28 U.S.C. § 2671. Third, the court reasoned, an FTCA claim for malicious prosecution requires allegations of misconduct by "investigative or law enforcement officers"-and Lambert and Fullerton did not fit that description "because the actions of which Reynolds complains did not entail any searches or seizures or . . . arrests." See 28 U.S.C. § 2680(h) (defining "investigative or law enforcement officer" as "any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law").