Barbioni v. United States ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1983
JOSEPH BARBIONI,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
Joseph M. Jabar and Daviau, Jabar & Batten on brief for
appellant.
Jay P. McCloskey, United States Attorney, Frank W. Hunger,
Assistant Attorney General, Barbara C. Biddle and Jennifer H. Zacks,
Department of Justice, Civil Division, on brief for appellees.
December 9, 1997
Per Curiam. After careful review of the parties'
submissions and the record on appeal, we affirm the decision
below granting judgment for the defendant.1 On appeal,
1
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.
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
355, 362 (1st Cir. 1991)("Since decisions to investigate, or
not, are at the core of law enforcement activity, the []
1The government suggests the court lacks jurisdiction to
1
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-
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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