from Myers v United Stateswhich was decided on Friday by the Ninth Circuit (joined by Judge Marsha Berzon, Judge Carlos Bea, and District Judge Richard Bennett), here is a summary of the court’s procedural history and plaintiffs’ allegations:
Plaintiff Kui Z. Myles filed nationality discrimination and retaliation charges with Equal Employment Opportunity Commission after she was fired from her position as an agent of Immigration and Customs Enforcement… After multiple days of trial, equal The Employment Opportunity Commission upheld the charges and ordered Myers to be reinstated and paid back wages. Miles then worked at ICE for several years without incident. However, in 2013, she reported to ICE that she was being harassed again. In response, she alleges that DHS… agents — including ICE officers, DHS agents, and other senior DHS officials — brought baseless criminal wage theft charges against her…
Miles is a naturalized U.S. citizen born in China. In 2005, she applied for and accepted a position as an immigration enforcement agent with ICE, an agency of DHS. Before starting his official job, Myers participated in a mandatory federal training program. During the project, due to her Chinese nationality, she was affected by the hostile work environment of her colleagues and mentors. After raising concerns about the treatment, Miles was denied access to certain computer systems, was not given pepper spray, was not allowed to work out of town, was denied bus driving training, and was falsely accused of “unexcused absences.” , was eventually terminated. After a multi-day trial, Administrative Law Judge Kathleen Mulligan ruled that the Department of Homeland Security (DHS) was responsible for Myles’ actions of discrimination and retaliation because of her Chinese nationality, and ordered Myles Myles is reinstated to work and pays back wages and benefits, compensatory damages, emotional distress, and attorney’s fees and costs.
After her reinstatement, Miles has been receiving “[e]Excellent” and “[o]Excellent” performance review. However, after several years of quiet service, Miles reported to ICE that she was being harassed again, this time by her immediate supervisor, Armando Lares. So, Lares Subject to disciplinary action, including being “placed in an executive position” and temporarily losing overtime privileges and “the right to bear a firearm.”
About a month after Lares’ disciplinary action went into effect, he lied to the Department of Homeland Security that Miles was illegally hosting undocumented Chinese nationals. A team of at least five Department of Homeland Security agents — including defendants in the case, David Gasman and Steven Lovett — watched Miles for eight months, filming Miles. Lots of footage with her family. When surveillance revealed that Miles was not illegally housing any undocumented individuals, Lovett and other DHS officials (including defendants Brian Demore, Francis Jackson, and David Marin) encouraged Gasman to provide evidence , to support a criminal case against Miles for wage theft and to submit the fabricated evidence to federal law enforcement officials.
The U.S. Attorney’s Office declined to press charges after reviewing evidence collected by DHS officials against Myers.According to Myers’ complaint, the office believes the evidence appears to be “fabricated” and observes that “this [was] Employment issues, not criminal issues. Undeterred, Gasman took the case to the Orange County District Attorney’s Office (“OCDA”); his statements included both willful misrepresentation and willful misrepresentation. OCDA subsequently filed criminal charges against Myers in California state Court, charged an employee with one count of grand larceny under California Penal Code § 487(b)(3).
In December 2014, Gassman and another DHS agent asked Miles to “talk” to them. When she arrived, they arrested her and sent her to Santa Ana prison, where she was booked and taken into custody.In connection with the arrest, OCDA issued several press statements, “among them [Myles] Statement that she acted illegally, took advantage of her public position, and was immoral. About a month later, ICE Deputy Field Officer Jackson recommended either an indefinite suspension or the firing of Miles. ICE Deputy Field Officer Marin, followed by Miles was suspended indefinitely without pay, a status that continued until 2017 late November.
A state criminal case against Miles has been pending for nearly three years. During this time, DHS agents tampered with witnesses and conducted perjury and obstruction. Miles “experienced significant financial hardship” including selling her property, depleting her savings, and withdrawing from her retirement fund to support her family and pay for her defense.She experienced “severe emotional and physical pain, humiliation, shame, hopelessness, embarrassment, depression, physical and mental pain and suffering, loss of income, loss of [of] Pay grades, loss of job security clearance, loss of rights to carry service and personal firearms as law enforcement officers, loss of status[ ] and future status, and the loss of other benefits. “
OCDA Deputy District Attorney Nichols, assigned to prosecute state’s criminal case, “was persuaded” after reviewing evidence including 2008 EEOC decision; a GAO report details widespread overtime oversight by DHS flaws; and video footage showing Miles “worked longer than many of her peers” and that it wasn’t Miles who left work early — the criminal case against Miles “was unfounded and was brought in bad faith. of”. On November 13, 2017, Nichols moved to dismiss the criminal case because “she concluded that [Myles] Unlawfully discriminated against”; Miles did nothing wrong; some of the evidence against Miles was fabricated; DHS “misused the OCDA office” as a tool for “unfair prosecution”[e]”Myers. State Court granted Nichols’ motion and the case was dismissed…
The Ninth Circuit held that Myers’ bad faith prosecution could proceed:
Myers’ malicious prosecution charges are against the federal government. As a sovereign nation, the United States “is not subject to litigation unless it agrees to be sued.” In the FTCA, the federal government waived its sovereign immunity from certain tort claims arising out of federal employees’ wrongful conduct in the context of their employment.
There are several exceptions to the sovereign immunity immunity in the FTCA, one of which is related: the federal government reserves “sovereign immunity from claims based on the exercise or performance or failure to exercise or perform employees of the government…”.
Here, Myers claims that federal employees “willfully brought false allegations to OCDA [Myles’s] conduct … which led directly to her criminal prosecution”; “encouraging, encouraging and actively participating in the [Myles] indicted…for felony grand theft”; and [Myles]. She further claims that in order to ensure the criminal case against her would survive, DHS officials tampered with witnesses, provided false statements to OCDA, and fabricated evidence. Miles also claimed that DHS officials “had no reasonable cause, nor no they have reason to believe [Myles] guilty of the charges against her. “Their purpose is revenge [Myles]“Because she reported internally that she again experienced harassment in the workplace based on nationality.
Going into the details, Myers claims that DHS officials told OCDA that she “willfully misreported overtime hours” in a manner that constituted “great employee theft” under California Penal Code § 487(b)(3) even though they knew she did not Falsely reporting overtime hours. Miles claimed the video evidence showed she was “working longer than many of her peers” and that “in fact, the person in the video…was not actually,” Miles said. She also claims that DHS officials tampered with evidence that she submitted false overtime requests, including during periods when she was unable to submit such requests due to unpaid administrative leave absences…
The discretionary functional exception is designed to prevent “judicial ‘post-judgment’ of legislative and administrative decisions based on social, economic and political policy”. Since a decision to deliberately swear, tamper with a witness, or fabricate evidence cannot be “based on” and cannot be “subject to” such an analysis, the discretionary function exception does not provide a sanctuary for such conduct. In other words, the discretionary function exception “does not apply to law enforcement investigations where the federal employee’s tactics during the investigation ‘have no legitimate policy justification.'” The kind of conduct Myers claims has no role in the lawful functioning of the government . Therefore, such conduct is not protected by the discretionary functional exception….
Our interpretation of the discretionary exception is supported by the 1973 amendment to 28 USC § 2680(h) to the FTCA-exempt list of willful infringements. Historically, the United States has reserved sovereign immunity against willful torts (including malicious prosecutions) by government personnel. But after a series of botched drug raids in Collinsville, Illinois drew national media attention, Congress amended 28 USC § 2680(h) to allow victims of “assault, battery, false imprisonment, false arrest, , abuse of process, or a “malicious prosecution” action against the federal government for “the act or omission of an investigator or law enforcement officer. …
Because Section 2680(h) expands the FTCA’s scope for malicious prosecutions arising from the acts or omissions of federal investigators and law enforcement officials, but does not change the discretionary function exception, the two should not be construed as having a common scope . However, if the facts of this case—again involving allegations of perjury, witness tampering, and falsification of evidence—are not sufficient to extend Myers’ malicious prosecution claim beyond the discretionary exception, it is difficult to imagine any malicious Section 2680(h) Prosecution actions covered by the section exception will continue to exist in the application of the discretionary functional exception.
Any malicious prosecution action against investigators and law enforcement officers will involve “decision[s] How to investigate, who to investigate and how to provide evidence to the relevant authorities. Therefore, the district court’s interpretation of the discretionary exception would render the 1973 addition to Section 2680(h) meaningless, violating “the accepted principle of legal interpretation that “legislation should not be construed to make The terms are just superfluous.”
In summary, we conclude that the discretionary function exception does not apply in malicious prosecution cases where the plaintiff alleges that investigators or law enforcement officers fabricated evidence, tampered with witnesses, lied, or otherwise knowingly gave false testimony in order to bring criminal charges against the plaintiff. The U.S. government cannot be absolved of responsibility, as such misconduct does not constitute policy judgment susceptible to social, economic or political analysis.
The court concluded that Myers’ allegations, though still at this point, were sufficient to keep the case going.