Barbioni v. United States ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 97-1983





                                   JOSEPH BARBIONI,



                                Plaintiff, Appellant,



                                          v.



                          UNITED STATES OF AMERICA, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before



                                 Selya, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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            Joseph  M.  Jabar  and  Daviau,  Jabar  &  Batten  on  brief   for
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        appellant.

            Jay  P.  McCloskey,  United  States  Attorney,  Frank  W.  Hunger,
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        Assistant Attorney General,  Barbara C. Biddle and  Jennifer H. Zacks,
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        Department of Justice, Civil Division, on brief for appellees.



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                                   December 9, 1997

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                      Per Curiam.   After careful review of  the parties'
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            submissions and the record on  appeal, we affirm the decision



            below  granting  judgment  for the  defendant.1    On appeal,
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            appellant  Joseph  Barbioni   ("Barbioni")  argues  that  the



            decision to pursue  a criminal investigation  and prosecution



            against him was improper and entitled him to relief under the



            Federal Tort Claims Act ("FTCA"), 28 U.S.C.   2674, given the



            alleged  fact that  two  witness  interviews  may  have  been



            conducted  in  an  inappropriate  manner.    But  even  where



            discretion  has been  abused, 28  U.S.C.    2680(a)  protects



            those   acts   which   constitute   the   performance   of  a



            discretionary function.   This court has  made it clear  that



            the decision  to investigate  and/or prosecute an  individual



            falls squarely  within the discretionary  function exception.



            See,  e.g.,  Horta  v.  Sullivan,  4 F.3d  2,  21  (1st  Cir.
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            1993)("[A]lthough  law enforcement  agents  have a  mandatory



            duty to enforce the law, decisions as to how  best to fulfill



            that  duty  are  protected  by  the  discretionary   function



            exception  to the FTCA.");  Kelly v. United  States, 924 F.2d
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            355,  362 (1st Cir. 1991)("Since decisions to investigate, or



            not,  are at  the core  of law  enforcement activity,  the []




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               1The government  suggests the court  lacks jurisdiction to
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            hear this  appeal under  28 U.S.C.    1291, but  we interpret

            Barbioni's  statements in his "Motion to  Alter (Rule 59)" as

            an abandonment of  any claims which may have  been pending at

            the time he filed that  pleading.  Thus, the district court's

            "Judgment" was a  final judgment, as required by  28 U.S.C.

            1291.



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            challenged  conduct involved  precisely the  kind of  policy-



            rooted decisionmaking that  section 2680(a)  was designed  to



            safeguard.").     Even  an   allegation  that   investigators



            intimidated  and coerced witnesses will not alter the outcome



            of a target's FTCA claim.  Moore v. Valder, 65 F.3d 189, 196-
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            97 (D.C. Cir. 1995).



                 We  do not  address  whether  the malicious  prosecution



            claim otherwise would have had merit.



                 Affirmed.  Loc. R. 27.1.
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