Ward v. United States of America

Background

James P. Ward, a former Department of Homeland Security employee, sued the United States and Miankanze Bamba, a former colleague sued in Bamba’s individual capacity. Ward alleged malicious prosecution claims against both defendants and a false-arrest claim against the Government under the Federal Tort Claims Act, a statute that allows certain tort claims against the United States.

According to the complaint, Ward and Bamba had a workplace confrontation in March 2018. Bamba called 911 and later made allegations during a Department of Homeland Security investigation that Ward had threatened him with a firearm and physically interfered with his efforts to seek help. Special Agent Steven Familio investigated the incident, recommended criminal charges, and was involved in Ward’s arrest. Ward was charged with three New York offenses, lost his security clearance, and was placed on indefinite suspension. The charges were dismissed in May 2019.

Ward alleged that Bamba and Familio acted maliciously and without justification. His claims were: false arrest against the Government based on Familio’s conduct; malicious prosecution against the Government based on Familio’s conduct; malicious prosecution against the Government based on Bamba’s conduct as a Government employee; and malicious prosecution against Bamba personally.

Substitution of the Government for Bamba

The Government asked to substitute itself for Bamba under the Federal Tort Claims Act and to dismiss Bamba from the case. The court applied New York’s five-factor test for deciding whether an employee acted within the scope of employment. The factors consider the connection between the act and the workplace, the employment relationship, whether the act was common for an employee in that setting, whether the employee departed from normal methods, and whether the employer could reasonably have anticipated the act.

The court concluded that the factors generally favored finding that Bamba acted within the scope of employment. The confrontation occurred at work and concerned a work responsibility. The court also found that reporting a perceived threat involving a weapon could be a common action in the circumstances, even though Ward alleged that Bamba’s report contained falsehoods. The Government had certified that Bamba acted within the scope of his employment, and the court found that Ward had not rebutted that certification with particular facts.

The court therefore granted the Government’s motion to substitute itself for Bamba. It dismissed Count Four with prejudice as to Bamba.

Jurisdiction over the claim based on Bamba’s conduct

The Federal Tort Claims Act generally excludes claims arising from malicious prosecution, but it contains an exception for acts or omissions by investigative or law-enforcement officers. The statute defines such an officer as a federal officer empowered by law to conduct searches, seize evidence, or make arrests for federal-law violations.

The court held that Bamba was not an investigative or law-enforcement officer within that statutory definition. The court rejected Ward’s argument that Bamba’s alleged direction or coordination with DHS law-enforcement personnel made Bamba an instrument of law enforcement. It also found that Ward had not pleaded facts supporting a plausible inference that Bamba and DHS coordinated in the relevant way. The court dismissed Ward’s third claim for lack of subject matter jurisdiction.

Jurisdiction over the claims based on Familio’s conduct

The court next applied the Federal Tort Claims Act’s discretionary-function exception. That exception preserves the Government’s immunity for conduct involving judgment or choice and grounded in public-policy considerations, so long as the employee acts within delegated authority.

The court concluded that Familio’s decision whether to recommend charges involved judgment and policy considerations. No statute, regulation, or policy specifically required him to follow a particular investigative procedure. The court found that deciding how to investigate the allegations and whether to pursue enforcement action was discretionary. It also found that Familio was acting within the authority DHS had delegated to him to investigate the altercation and recommend possible charges.

The court therefore dismissed Ward’s first and second claims for lack of subject matter jurisdiction. Because the court found that it lacked jurisdiction over all of Ward’s claims, it did not reach the Government’s alternative motion under Rule 12(b)(6), which argued that Ward had failed to state a legally sufficient claim.

Disposition

The court granted the Government’s motion to substitute itself for Bamba and to dismiss all claims for lack of subject matter jurisdiction. The claim against Bamba was dismissed with prejudice as to Bamba; the court also dismissed the claims based on Bamba’s and Familio’s conduct for lack of jurisdiction. The Clerk was directed to close the motion and the case.