rejected the attempt to draw a distinction between high-level decisions and specific operational decisions. In this regard, the Fifth Circuit took heed of the Supreme Court's declaration that "it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case." Varig, 104 S. Ct. at 2765.
Research has disclosed, however, that circuit court treatment of law enforcement officers' conduct has not been uniform. For example in Downs v. United States, 522 F.2d 990 (6th Cir. 1975), the court held that the exception did not apply to a tort suit which challenged the manner in which FBI agents responded to a hijacking. The court limited application of the exception to (1) cases in which government agents, acting with due care, implement a statute or regulation and (2) cases in which government agents formulate policy. To determine whether government agents are formulating policy, the court looked to the nature and quality of judgment at issue, not to the governmental function for which such a decision was made.
Applying that test to the case before it, the Sixth Circuit ruled that the FBI agents were not formulating government policy when they decided to disable a captive aircraft with hostages on board. The court reasoned that governmental policy had already been articulated in an FBI handbook.
The Sixth Circuit found support for its conclusion in civil rights cases reviewing the legality of police searches, seizures, and arrests. From that body of precedent the court deduced that when a response to a particular situation does not have policy overtones, courts have "scrutinized the day-to-day activities of law enforcement officers." Downs, 522 F.2d at 997. The court rejected the argument that the making of an arrest is a discretionary act, reasoning that, as in civil rights cases, "the fiction that making an arrest is not 'discretionary' is maintained because protection of personal liberties is thought to outweigh the danger of less effective law enforcement out of fear of personal tort liability." Id. at 998.
Relying on Downs, the District Court for the Eastern District of Michigan has ruled that the exception does not bar suit for a death caused by an informant in the FBI's control. In Liuzzo v. United States, 508 F. Supp. 923 (E.D. Mich. 1981), the plaintiffs alleged that their mother was killed because the FBI recruited, but failed to train or supervise, an informant with known dangerous propensities. The plaintiffs also alleged that the FBI had notice of, and authorized the informant, a Ku Klux Klan member, to provoke or participate in violence toward civil rights protesters such as the plaintiffs' decedent.
On a motion to dismiss, the court held that the alleged negligence of the FBI officers in implementing the Bureau's policy regarding informants was the sort of day-to-day judgment that Downs held outside the discretionary function exception. Because the agents were not formulating policy when they responded to the various circumstances presented, the exception did not preclude judicial review of the propriety of their handling of the informant.
To decide whether the discretionary function exception bars suit for the alleged negligence of VA officials in the case before me, I must consider whether the challenged conduct is "of the nature and quality that Congress intended to shield from tort liability." Varig, 104 S. Ct. at 2765. After considering the facts of this case in light of the Supreme Court's recent pronouncement, the pre-Varig caselaw, and particularly our court of appeals' decision in Bernitsky, I conclude that the challenged conduct is a discretionary function.
I note at the outset that this lawsuit involves a challenge to both the officials' investigative techniques and their decision to initiate criminal charges against the plaintiff. The latter aspect of the officials' behavior has traditionally been considered a quintessentially discretionary act. Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 19 L. Ed. 2d 106, 88 S. Ct. 76 (1967); United States v. Faneca, 332 F.2d 872 (5th Cir. 1964), cert. denied, 380 U.S. 971, 14 L. Ed. 2d 268, 85 S. Ct. 1327 (1965); Accardi v. United States, 435 F.2d 1239 (3d Cir. 1970); Blessing v. United States, 447 F. Supp. 1160, 1179 & n.28 (E.D. Pa. 1978). Nothing in Varig or other recent cases suggests that filing the criminal complaint was not a discretionary act, thus I hold that plaintiff's complaint must be dismissed to the extent it challenges the decision to bring such charges.
I conclude also that the VA officials' conduct during the investigation, including their decision to accept the services of an informant with limited mental capacity, is a discretionary function. As the Third Circuit specifically ruled in Bernitsky : "Decision making as to investigation and enforcement, particularly where there are different types of enforcement action available, are discretionary judgments." 620 F.2d at 955. While it can be said that the mine safety inspectors in Bernitsky enjoyed slightly broader discretion to decide appropriate enforcement action, the nature of the governmental conduct -- investigation and enforcement of regulations of private conduct -- is the same as in the instant case.
Further support for this position is found in Varig and the Third Circuit's analysis of Varig in General Public Utilities Corporation v. United States, supra. In Varig, the Supreme Court made clear that the governing inquiry is whether the governmental function pursued through an allegedly negligent decision is discretionary. With respect to the FAA's decision as to the extent it would oversee private manufacturers' compliance with safety standards, the Court ruled that the regulatory character of the challenged conduct classified it as a discretionary function. Similarly, in General Public Utilities, the court emphasized that the exception "is based on the nature of the governmental discretionary function," and is not forfeited by the negligence of an employee performing such a function. 745 F.2d at 245. The court then went on to hold that the Nuclear Regulatory Commission's regulatory function was a discretionary one.
The same reasoning applies to the VA's role as regulator of the conduct of persons on VA premises. Congress has authorized the Administrator of Veterans' Affairs, for the purpose of maintaining law and order on VA property, to establish rules and regulations, to employ special police, and to authorize such special officers to carry firearms. Special investigators, while on VA property, are authorized to enforce both rules and regulations promulgated by the VA and Federal statutes for the protection of persons and property. 38 U.S.C. § 218. With respect to conduct on VA property, therefore, the VA is entitled to the range of discretion properly accorded other law enforcement agencies.
I conclude, moreover, that when seeking to enforce a criminal statute through the use of an informant, law enforcement agencies are exercising a discretionary function under the Varig formulation. Although civil rights litigation has compelled the courts to review police conduct for the purpose of protecting individual rights, the judiciary's limited role as Constitutional guardian does not reflect an institutional competence to weigh risks attendant to the various methods of ferreting out crime. Plaintiff's suggestion that law enforcement agencies should decline to employ informants of questionable physical, mental, or moral condition is particularly suspect. On countless occasions, the government has used the testimony of admitted criminals, perjurers, and drug abusers to obtain the conviction of the informants' former cohorts. To require that the government rely only upon witnesses of sterling character would intolerably impede the government's law enforcement effort. In the instant case, it makes no difference that the decision to employ Mr. Cantrell was not made by high-level administrators; the status of the decisionmakers does not alter the basic character of their judgment, a determination of the appropriate means of law enforcement.
Plaintiff's final contention, raised at oral argument, is that he is entitled to relief under the "investigative or law enforcement officer" proviso of 28 U.S.C. § 2680(h). Section 2680(h) excepts from the FTCA:
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: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means 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.
As the Court of Appeals for the District of Columbia Circuit has already ruled, however, § 2680(a) bars suit with respect to discretionary governmental functions even if the discretionary conduct would constitute a tort covered by the proviso to § 2680(h). Gray v. Bell, 229 U.S. App. D.C. 176, 712 F.2d 490, 507-508 (D.C. Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1593, 80 L. Ed. 2d 125 (1984). Plaintiff's argument that the holding of Gray v. Bell should be rejected is not convincing. Although the instant case demonstrates that some activities of law enforcement officers are discretionary functions, it is not necessary to construe the proviso to § 2680(h) as a pro tanto repeal of the discretionary function exception to give the proviso its intended effect. Under the interpretation advanced by the District of Columbia Circuit, which I follow, the prime target of the proviso -- violation of constitutional rights by law enforcement officers -- remains actionable.
In short, I hold that both the VA officials' decision as to the proper investigative techniques and their determination to initiate criminal charges against the plaintiff are discretionary governmental functions. Because plaintiff's complaint is barred by the discretionary function exception, this court lacks jurisdiction over the case. Griffin v. United States, 500 F.2d 1059, 1063 (3d Cir. 1974). I will therefore dismiss plaintiff's complaint.
This 16th day of May, 1985, it is
ORDERED that the Motion of the United States of America to Dismiss the Complaint is GRANTED.