United States Court of Appeals

For the First Circuit

No. 03-2081

FRANK BOLDUC ET AL.,

Plaintiffs, Appellants,

v.

UNITED STATES OF AMERICA,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

 Boudin, Chief Judge,

Selya and Lynch, Circuit Judges.

Stephen Hrones, with whom Hrones, Garrity & Hedges was on

brief, for appellants.

Anita Johnson, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, and George B.

Henderson, II, Assistant United States Attorney, were on brief, for

appellee.

March 23, 2005
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SELYA, Circuit Judge. This case arises out of a series

of apparent blunders on the part of the Federal Bureau of

Investigation (FBI), leading to the wrongful conviction of two men

on bank robbery charges. After the truth came to light, the trial

court set aside the convictions. The men then sued the United

States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§

1346(b), 2671-2680. Following a bench trial, the district court

denied relief. See Bolduc v. United States, 265 F. Supp. 2d 153

(D. Mass. 2003). The court acknowledged the government's

jurisdictional challenges but opted to decide the case on the

merits. See id. at 154.

On appeal, we think it more orderly to treat the question

of jurisdiction as a threshold matter. Concluding, as we do, that

the FTCA does not support the assertion of federal subject matter

jurisdiction, we affirm the judgment on that alternative ground.

I. BACKGROUND

The chronicle of relevant events takes us back more than

sixteen years. We recount the facts as supportably found by the

district court. See id. at 155-69.

On June 28, 1988, two middle-aged white men attempted to

rob a branch of the First Wisconsin Bank situated at the Southgate

Mall in Greenfield, Wisconsin. The FBI mounted an investigation

into the Southgate incident. Agent Daniel Craft led the probe.

Because the thieves came away from Southgate empty-handed, Craft
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considered the crime a "nothing robbery" and delegated substantial

investigative responsibility to a rookie, Agent Derrel Craig.

On November 15, 1988, Craft and Craig rounded up four

Southgate eyewitnesses and showed them a photographic array. The

array did not include pictures of either the appellants or the men

who ultimately were determined to be the actual culprits.

Nevertheless, two of the four eyewitnesses selected the photographs

of Allan Daniel Wilwerding and Douglas Wayne Thompson as depictions

of the robbers, and another eyewitness fingered Wilwerding. The

agents recorded the results in separate memos, known in FBI

parlance as 302 reports. The two sets of reports attributed

different levels of certitude to the eyewitness identifications:

Craft's reports indicated that two of the eyewitnesses had

described Wilwerding and Thompson as "similar" to the robbers

whereas Craig's reports noted that those eyewitnesses had

identified the men as "identical" to the robbers. The reports

regarding the eyewitness who had identified only Wilwerding were

also inconsistent; again, Craft's report attributed a "similar"

identification to that eyewitness whereas Craig's report recorded

an "identical" match.

As lead investigator, Craft bore responsibility for

finalizing the 302 reports by reviewing them for errors and

initialing them. According to FBI policy, once Craft finalized the

302 reports, he was required to place them in the case file. The
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court below found that, in this instance, Craft ignored this policy

and excluded Craig's 302 reports from the case file because he

unilaterally decided that they inaccurately reported the strength

of the identifications. Id. at 157. The court also found it

doubtful that Craft's 302 reports were in the case file when the

FBI turned it over to the United States Attorney. Id. It is

undisputed that FBI agents have no discretion to withhold

particular 302 reports from a case file. See id.

On October 18, 1989, two middle-aged white men stuck up

the Oklahoma Avenue branch of the First Wisconsin Bank in Milwaukee

and absconded with $400,000. Agent Craft again took the lead in

the ensuing investigation. This time, however, his aide-de-camp

was Agent Margaret Cronin. The general description of the Oklahoma

Avenue perpetrators reminded Cronin, a Boston native, of an article

she had read in a Boston newspaper describing arrests in Lowell,

Massachusetts, following an armored car robbery in nearby

Chelmsford. Those arrested included two middle-aged white men, and

Cronin thought that she perceived some similarities.

In early 1990, on Cronin's initiative, the Milwaukee

office of the FBI included photographs of plaintiffs-appellants

Frank Bolduc and Francis Larkin (each of whom had been detained in

connection with the Chelmsford armored car robbery) in an array
1Larkin died while this suit was pending and the administrator

of his estate has been substituted as a party plaintiff in his

place and stead. See Fed. R. Civ. P. 25(a).

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displayed to the Southgate and Oklahoma Avenue eyewitnesses.1 Some

witnesses identified Bolduc and/or Larkin as the culprits; others

were unable to make any positive identifications at that time.

Encouraged to some extent by these results, the FBI arranged to

have the appellants transported to Wisconsin and placed them in a

lineup. Several (but not all) of the eyewitnesses to the Southgate

and Oklahoma Avenue incidents identified them as the robbers. A

federal grand jury, sitting in Milwaukee, subsequently indicted the

appellants for the attempted armed robbery of Southgate and the

armed robbery of Oklahoma Avenue, see 18 U.S.C. § 2113, and for

related firearms offenses, see id. § 924(c)(1).

The trial went forward in February of 1991. The

prosecution relied entirely upon eyewitness identifications,

including the testimony of the same three witnesses who previously

had identified others (Wilwerding and Thompson) as "similar" or

"identical" to the Southgate bandits; this time, the trio made

positive identifications of Bolduc and/or Larkin. Neither the

prosecutor nor the witnesses themselves mentioned their earlier

(inconsistent) match-ups. The defense relied mainly upon alibi

testimony indicating that the appellants were in the Boston area

when the crimes were committed. The jury found the appellants
2The court sentenced Bolduc to 280 months for the attempted

robbery at Southgate (count 1), 60 months for a related firearms

charge (count 2), 280 months for the Oklahoma Avenue robbery (count

3), and 240 months for a related firearms charge (count 4). The

sentences on counts 1 and 3 were to run concurrently, followed by

the sentence for count 2 and, finally, the sentence for count 4.

The court sentenced Larkin to concurrent terms for counts 1 and 3

(each 90 months), followed by a consecutive 60-month term for count

2 and a further consecutive 240-month term for count 4.

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guilty of all charges and, on May 24, 1991, the district court

sentenced both men to serve lengthy prison terms.2

Following the imposition of sentence, federal officials

returned Bolduc to a Massachusetts state penitentiary to resume

serving a life sentence for an earlier second-degree murder

conviction, which the parole board had reinstated upon Bolduc's

arrest for his putative involvement in the Chelmsford armored car

robbery. Upon learning of the federal convictions, however,

Massachusetts authorities decided to dismiss the charges pending

against Bolduc and Larkin with respect to the armored car caper.

In their view, the appellants' ages and the length of their federal

sentences contradicted the need to seek additional prison time.

Despite this decision, the Massachusetts parole board determined

that Bolduc's federal conviction furnished sufficient grounds to

support the revocation of his parole and, therefore, he remained in

state prison.

Notwithstanding the appellants' arrests and

incarceration, similar robberies continued to plague Midwestern

banks. More than six years after the appellants were sentenced,
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the FBI arrested William Kirkpatrick on suspicion of involvement in

several of the more recent robberies. Though incarcerated, Bolduc

caught wind of this turn of events and asked Kirkpatrick's attorney

for any available information about the Southgate and Oklahoma

Avenue robberies. The lawyer sent Bolduc a packet containing,

inter alia, Agent Craig's 302 reports anent the November 1988 photo

array. It was in that roundabout way that Bolduc first learned of

this exculpatory evidence. Larkin learned of the evidence at an

even later date.

In time, Kirkpatrick confessed that he and a partner had

undertaken both the Southgate and Oklahoma Avenue heists. The

appellants filed federal habeas petitions, see 28 U.S.C. § 2255,

which the government did not oppose. On June 11, 1999, a federal

district judge granted the petitions, vacated the appellants'

sentences, and issued certificates of innocence. Larkin was

released from federal custody and Bolduc, relying on the

certificate of innocence, successfully petitioned the Massachusetts

parole board for reinstatement of his parole.

II. TRAVEL OF THE CASE

Following their release, the appellants commenced a civil

action in the United States District Court for the District of

Massachusetts in an effort to recover money damages for the eight

years that they had languished in prison. Their complaint

presented claims under the FTCA against the United States for
3On October 21, 2002, the lower court granted the appellants'

motion to transfer the claim against Craft to the United States

District Court for the Eastern District of Wisconsin. The docket

of that court does not indicate that the appellants ever perfected

the transfer.

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malicious prosecution, false imprisonment, abuse of process, and

negligent supervision, as well as a Bivens claim against Agent

Craft, see Bivens v. Six Unknown Named Agents of FBN, 403 U.S. 388,

389 (1971). The district court dismissed the malicious

prosecution, abuse of process, and false imprisonment counts for

failure to state claims upon which relief could be granted, see

Fed. R. Civ. P. 12(b)(6), and dismissed the Bivens claim for want

of in personam jurisdiction, see Fed. R. Civ. P. 12(b)(2). None of

these rulings have been contested on appeal and we abjure any

further discussion of them.3 Withal, the district court permitted

the negligent supervision claim to go forward and subsequently

allowed the appellants to add a straight negligence claim under the

FTCA. Both claims were premised on the allegation that the FBI's

withholding of the above-described 302 reports deprived the

appellants of the benefit of exculpatory evidence before and during

the criminal trial, and thus led to their wrongful convictions.

The parties engaged in extensive discovery. The

government challenged the existence of subject matter jurisdiction

for the first time in a motion served almost two months after the

deadline for filing dispositive motions had passed. Subject matter

jurisdiction is not waivable, and a party cannot confer subject
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matter jurisdiction upon a federal court by failing to assert that

defense in a timely manner. See Quinn v. City of Boston, 325 F.3d

18, 26 (1st Cir. 2003); Irving v. United States, 162 F.3d 154, 160

(1st Cir. 1998) (en banc). Still, the belated filing of a motion

to dismiss for want of subject matter jurisdiction can have

consequences in terms of a court's case-management decisions. So

it was here: the district court elected to withhold consideration

of the jurisdictional issue until after the trial.

The appellants' two remaining claims — negligence and

negligent supervision under the FTCA — were tried to the district

court for four days. The court then requested post-trial briefing.

The government's memorandum raised a litany of defenses, including

a renewed plea that the court lacked subject matter jurisdiction.

On July 2, 2003, the district court filed a lengthy

rescript in which it ordered judgment in favor of the United States

on the ground that the appellants had not proved that the FBI's

failure to provide the exculpatory 302 reports had harmed them.

See Bolduc, 265 F. Supp. 2d at 154, 171. The court's rationale is

complicated, see id. at 154, 169-71, and the appellants bitterly

dispute it. We need not set foot on that battlefield: federal

courts are courts of limited jurisdiction and, in the circumstances

of this case, we consider ourselves bound to address the

jurisdictional issue first, regardless of the government's failure
4We recognize that, in some circumstances, a court may avoid

a jurisdictional quandary if a tidier resolution on the merits will

dispose of the case in favor of the party challenging jurisdiction.

See, e.g., United States v. Stoller, 78 F.3d 710, 715 (1st Cir.

1996). That is a narrow exception, however, especially in view of

a federal court's "special obligation to 'satisfy itself not only

of its own jurisdiction, but also that of the lower courts in a

cause under review.'" Bender v. Williamsport Area Sch. Dist., 475

U.S. 534, 541 (1986) (quoting Mitchell v. Maurer, 293 U.S. 237, 244

(1934)); accord Steel Co. v. Citizens for a Better Env't, 523 U.S.

83, 94 (1998). In this case, we deem it prudent to hew to the

general rule rather than the long-odds exception to it.

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to raise it in a more timely fashion.4 See Irving, 162 F.3d at 160

(admonishing that the federal courts "have an affirmative

obligation to examine jurisdictional concerns on their own

initiative" even if the parties have neglected them); Berner v.

Delahanty, 129 F.3d 20, 23 (1st Cir. 1997) (noting "that a court

should first confirm the existence of rudiments such as

jurisdiction . . . before tackling the merits of a controverted

case"). As matters turn out, resolution of that issue terminates

this appeal.

III. SUBJECT MATTER JURISDICTION

Consistent with the foregoing, we turn directly to the

jurisdictional issue. We begin with first principles: it is

apodictic that "[a]s a sovereign nation, the United States is

immune from liability except to the extent that it consents to

suit." Dynamic Image Techs., Inc. v. United States, 221 F.3d 34,

39 (1st Cir. 2000). The FTCA evinces a waiver of sovereign

immunity with respect to certain categories of torts committed by
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federal employees in the scope of their employment. See 28 U.S.C.

§ 1346(b)(1). It simultaneously grants the federal district courts

jurisdiction over such claims. See id.; see also FDIC v. Meyer,

510 U.S. 471, 475-77 (1994). Thus, we must determine whether this

waiver of sovereign immunity extends to the appellants' claims of

negligence and negligent supervision, so that those claims fall

within the jurisdictional grant of section 1346(b)(1). See Meyer,

510 U.S. at 477.

That grant extends to claims

against the United States, for money damages,

accruing on and after January 1, 1945, for

injury or loss of property, or personal injury

or death caused by the negligent or wrongful

act or omission of any employee of the

Government while acting within the scope of

his office or employment, under circumstances

where the United States, if a private person,

would be liable to the claimant in accordance

with the law of the place where the act or

omission occurred.

28 U.S.C. § 1346(b)(1). A further explication of the last clause

is to be found in 28 U.S.C. § 2674, which provides that the United

States only "shall be liable . . . in the same manner and to the

same extent as a private individual under like circumstances." A

bundle of exceptions, mostly in the nature of exclusions and carveouts, circumscribes the FTCA's waiver of sovereign immunity. See
5Only two of these exceptions are relevant to this case. They

state in pertinent part that the provisions of the FTCA shall not

apply to:

(a) Any claim based upon an act or omission of an

employee of the Government . . . based upon the exercise

or performance or the failure to exercise or perform a

discretionary function or duty on the part of a federal

agency . . . .

* * *

(h) 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 [subject to certain

provisos] . . . .

28 U.S.C. § 2680(a), (h).

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28 U.S.C. § 2680(a)-(n); see also Dynamic Image Techs., 221 F.3d at

39.5

We add a caveat. As with all waivers of sovereign

immunity, the FTCA must be "construed strictly in favor of the

federal government, and must not be enlarged beyond such boundaries

as its language plainly requires." United States v. Horn, 29 F.3d

754, 762 (1st Cir. 1994). With this principle firmly in mind, we

undertake our jurisdictional analysis.

As said, the appellants prosecuted two FTCA claims: one

for negligence (based on Agent Craft's alleged failure to include

the above-described 302s in the case file turned over to federal

prosecutors and ultimately to the defense) and one for negligent

supervision (based on the alleged failure of Craft’s superiors to
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oversee him more closely). We consider the jurisdictional bona

fides of each claim separately.

A. The Negligence Claim.

The "law of the place" provides the substantive rules to

be used in deciding FTCA actions. 28 U.S.C. § 1346(b)(1). The

phrase "law of the place" refers to the law of the state in which

the allegedly tortious acts or omissions occurred. See Meyer, 510

U.S. at 478; Castro v. United States, 775 F.2d 399, 405 (1st Cir.

1985) (per curiam). Federal constitutional or statutory law cannot

function as the source of FTCA liability. See Meyer, 510 U.S. at

478 (holding that "the United States simply has not rendered itself

liable under § 1346(b) for constitutional tort claims"); Sea Air

Shuttle Corp. v. United States, 112 F.3d 532, 536-37 (1st Cir.

1997) (explaining that there can be no FTCA jurisdiction where the

challenged government conduct has no parallel in the private sector

and the asserted liability arises from a federal statutory or

regulatory obligation with no comparable common law principle under

which private persons would be held liable); Zabala Clemente v.

United States, 567 F.2d 1140, 1149 (1st Cir. 1978) (establishing

that "even where specific behavior of federal employees is required

by federal statute, liability to the beneficiaries of that statute

may not be founded on the Federal Tort Claims Act if state law

recognizes no comparable private liability"). It follows that the

appellants cannot premise jurisdiction on the rule of Brady v.
6Broadly stated, Brady imposes a constitutional duty on

prosecutors to turn over exculpatory evidence to a defendant in a

criminal case. See Brady, 373 U.S. at 87.

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Maryland, 373 U.S. 83 (1963),6 but, rather, must look to Wisconsin

law and must identify in that body of jurisprudence a basis for

holding a private person liable in tort for acts and omissions

comparable to those committed (or, at least, allegedly committed)

by Agent Craft. See Davric Me. Corp. v. U.S. Postal Serv., 238

F.3d 58, 64 (1st Cir. 2001).

To maintain a cause of action for negligence in

Wisconsin, a plaintiff must show "(1) [a] duty of care on the part

of the defendant; (2) a breach of that duty; (3) a causal

connection between the conduct and the injury; and (4) an actual

loss or damage as a result of the injury." Rockweit v. Senecal,

541 N.W.2d 742, 747 (Wis. 1995). Building on this fairly

conventional formulation, the appellants argue that Agent Craft's

failure to ensure the turnover of exculpatory evidence constituted

a breach of a duty cognizable under Wisconsin tort law.

To satisfy the duty prong, the appellants rely in part on

the duty of state government (and, particularly, state prosecutors)

to disclose exculpatory evidence. See, e.g., Appellants' Reply Br.

at 5-6 (citing Wis. Stat. § 971.23(1)). This effort is

unconvincing. By the FTCA's plain terms, a waiver of sovereign

immunity attaches only where "a private person[] would be held

liable." 28 U.S.C. § 1346(b)(1) (emphasis supplied). The
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appellants have not pointed to any instance in which Wisconsin has

imposed private liability on a prosecutor or other state agent for

a failure to disclose exculpatory evidence. That is a fatal flaw,

for the federal government does not yield its immunity with respect

to obligations that are peculiar to governments or officialcapacity state actors and which have no private counterpart in

state law. See Franco de Jerez v. Burgos, 947 F.2d 527, 528 (1st

Cir. 1991) (speaking in terms of the negligence of government

employees as such is insufficient to satisfy the FTCA's "private

person" requirement); DiMella v. Gray Lines of Boston, Inc., 836

F.2d 718, 720 (1st Cir. 1988) (stating that "[w]hatever liability

[a state] may have chosen to assume for itself as a matter of

governmental policy has no bearing on the liability of . . .

private persons, the standard the federal government has

accepted"). Because Wisconsin's recognition of a governmental duty

to disclose exculpatory evidence does not ground private liability

under that state's law, it cannot serve as a hook on which to hang

federal jurisdiction here.

This conclusion does not end our inquiry. We nonetheless

must inquire whether there is any way in which Wisconsin might

impose tort liability upon a private party under circumstances

sufficiently similar to those present in this case, that is, a

person who comes into possession of exculpatory evidence as part of

an official investigation and carelessly fails to disclose that
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evidence to prosecutors (and, ultimately, to the accused). This

means, in effect, that we must look for "some relationship between

the governmental employee[s] and plaintiff to which state law would

attach a duty of care in purely private circumstances." Sea Air

Shuttle, 112 F.3d at 537 (citation and internal quotation marks

omitted).

In formulating its test for negligence, Wisconsin has

adopted a broad definition of the element of duty. See A. E. Inv.

Corp. v. Link Builders, Inc., 214 N.W.2d 764, 766 (Wis. 1974)

(explaining that Wisconsin has embraced a rationale that recognizes

a duty wherever harm is foreseeable). As a result of this choice,

Wisconsin courts, rather than examining the relationship between

the parties to determine the existence vel non of a duty, focus on

the foreseeability of harm in order to ascertain whether a duty

arises. This means that "[t]he duty of any person is the

obligation of due care to refrain from any act which will cause

foreseeable harm to others even though the nature of that harm and

the identity of the harmed person or harmed interest is unknown at

the time of the act." Id.

This formulation casts a wide net. Indeed, the Wisconsin

Supreme Court — the most authoritative arbiter of Wisconsin law —

has ruminated that "[i]n Wisconsin, everyone has a duty of care to

the whole world." Miller v. Wal-Mart Stores, Inc., 580 N.W.2d 233,

238 (Wis. 1998). In these general terms, then, a private person
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might be said to owe a duty to a person suspected of crime — the

duty being to exercise due care in the handling of exculpatory

evidence so as to prevent the foreseeable harm of wrongful

conviction. Cf. Bowen v. Lumbermens Mut. Cas. Co., 517 N.W.2d 432,

439 (Wis. 1994) ("Wisconsin law considers conduct to be negligent

if it involves a foreseeable risk of harm to anyone.").

Even if we assume the existence of such a duty, that

assumption does not take the appellants as far as they need to go.

Under the FTCA, the relevant inquiry is not whether state law might

assign a duty to a private person in the same or similar

circumstances, but, rather, whether state law would impose

liability on a private person in the same or similar circumstances.

See 28 U.S.C. §§ 1346(b)(1), 2674. The stating of a claim for

negligence (the failure to exercise due care by one having a

general duty to do so in the face of foreseeable harm) does not

automatically mean that liability would attach under Wisconsin law.

The contrary is true: "[i]n Wisconsin, the doctrine of public

policy, not the doctrine of duty, limits the scope of a defendant's

liability." Bowen, 517 N.W.2d at 439; see also Rockweit, 541

N.W.2d at 750 (stating that "the determination to deny liability is

essentially one of public policy rather than of duty or

causation"); Schuster v. Altenberg, 424 N.W.2d 159, 164 (Wis. 1988)

("[O]nce it is determined that a negligent act has been committed

and that the act is a substantial factor in causing the harm, the
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question of duty is irrelevant and a finding of nonliability can be

made only in terms of public policy."). Because the measure for

determining the federal government's consent to suit under the FTCA

is a private person's potential liability under state law, we turn

to Wisconsin's doctrine of public policy.

The question of whether public policy precludes tort

liability is "a question of law solely for judicial decision."

Morgan v. Pa. Gen. Ins. Co., 275 N.W.2d 660, 667 (Wis. 1979). The

Wisconsin Supreme Court has enumerated six factors relevant to this

determination. See Miller, 580 N.W.2d at 240. We need not call

the roll, however, as that court has decided a case directly on

point dealing with a private person in markedly similar

circumstances. We look to that decision for guidance.

In Bromund v. Holt, 129 N.W.2d 149 (Wis. 1964), the

plaintiff brought an action in negligence against a doctor, in his

private capacity, for careless performance of an autopsy

commissioned by law enforcement officers in the course of their

investigation into the death of the plaintiff's wife. Id. at 150-

51. The plaintiff asserted that the doctor's negligent performance

of the autopsy and subsequent proffer of a flawed cause-of-death

opinion led directly to the plaintiff's arrest, prosecution, and

resulting damages. See id. at 150. The court framed the question

presented by the plaintiff's suit as whether, assuming that

negligence and causation were present, the plaintiff's interest in
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"freedom from unjustifiable criminal litigation" is the "type of

interest [that] is protected against unintentional invasion." Id.

at 151.

The court then undertook a public policy analysis to

determine whether imposing liability on the doctor would be

appropriate. It began by noting that "[t]he law, for reasons of

policy, closely circumscribes the types of causes of action which

may arise against those who participate in law enforcement activity

or in the functioning of the judicial system." Id. at 152. It

went on to observe that, in civil litigation, such defendants often

have a relationship to the judicial process that affords them

immunity from private liability. See id. (citing the protections

afforded to, inter alios, prosecutors and witnesses). It next

determined that, even when a defendant's relationship to the

judicial process does not afford a specific immunity, "he is still

not held liable to the person who has been subjected to

unjustifiable prosecution in the absence of malice." Id. at 153.

The court's reasoning is instructive. In its view, law

enforcement and the safeguarding of society from crime would suffer

if government agents (and outsiders hired to assist in law

enforcement activities) were subject to private liability for

damages arising from simple negligence in the performance of their

duties. See id. at 153-54. The Bromund court held that:

even if a person employed by the public to

assist in law enforcement . . . does not enjoy
7A party can, of course, maintain actions for malicious

prosecution or abuse of process under Wisconsin law. The

appellants asserted such claims here. The district court dismissed

the malicious prosecution claim for failure to plead the necessary

element of malice and the abuse of process claim for failure to

assert that the withholding of the 302s was willful or done with an

ulterior purpose. Bolduc v. United States, No. 01-CV-11376, 2002

WL 1760882, at *3-*4 (D. Mass. July 30, 2002). The appellants have

not challenged either of those rulings on appeal.

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immunity, . . . the same considerations of

public policy which require proof of malice as

an element of an action for malicious

prosecution or defamation under these

circumstances must exclude liability founded

upon mere negligence. In our opinion, the

interest in freedom from unjustifiable

criminal litigation is, as a matter of policy,

not protected from unintentional tort.

Id. at 154.

This holding has particular pertinence for present

purposes. Assuming arguendo that the appellants could demonstrate

negligence, causation, and actual harm — a matter on which we take

no view — Wisconsin law nonetheless would preclude the imposition

of private liability on a private person in circumstances similar

to those of Agent Craft.7 Under Bromund, malice is a prerequisite

for imposing private tort liability upon a private individual

working with law enforcement when the performance of his duties has

resulted in an unjustifiable criminal prosecution and/or

conviction. See id. at 153-54. Because the appellants have failed

to offer a scintilla of proof of malice, they have failed to

establish a basis under the law of the place for imposing liability

upon a private person in like circumstances. Consequently, we hold
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that the FTCA does not waive the federal government's sovereign

immunity vis-à-vis the appellants' negligence claim. It follows

inexorably that there is no federal subject matter jurisdiction

over that component of the case.

B. The Negligent Supervision Claim.

This leaves the negligent supervision claim. Wisconsin

recognizes the tort of negligent supervision. Miller, 580 N.W.2d

at 241. Under Wisconsin law, a breach of the general duty to

supervise is actionable if two causation components exist: first,

the wrongful act of an employee must have been a cause-in-fact of

the plaintiff's injury; second, the employer's negligence must have

been a cause-in-fact of the employee's wrongful act. Id. at 239.

For these purposes, it is not necessary that the employee's

wrongful act, in and of itself, constitute an actionable tort. Id.

Hence, our conclusion that the United States cannot be held

vicariously liable for Agent Craft's negligence in the handling of

exculpatory evidence, see supra Part III(A), does not negate the

possibility that the United States might be held directly liable

for negligent supervision.

We need not hazard a public policy analysis to determine

whether a private employer in like circumstances would face

liability for negligent supervision under Wisconsin law. Even if

the appellants could successfully urge the affirmative of that

proposition — a matter on which we do not opine — the discretionary
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function exception to the FTCA, 28 U.S.C. § 2680(a), would divest

the federal courts of jurisdiction over this claim. We explain

briefly.

The FTCA insulates the United States from "[a]ny claim .

. . based upon the exercise or performance or the failure to

exercise or perform a discretionary function or duty on the part of

a federal agency or an employee of the Government, whether or not

the discretion involved be abused." Id. This proviso balances

"Congress' willingness to impose tort liability upon the United

States and its desire to protect certain governmental activities

from exposure to suit by private individuals." United States v.

Varig Airlines, 467 U.S. 797, 808 (1984). When a claim falls

within the contours of section 2680(a), it must be dismissed for

lack of subject matter jurisdiction. See Kelly v. United States,

924 F.2d 355, 360 (1st Cir. 1991).

To determine whether the discretionary function proviso

applies, an inquiring court must first identify the government

conduct giving rise to the claim in question. Muniz-Rivera v.

United States, 326 F.3d 8, 15 (1st Cir. 2003). In assaying that

conduct, the court must examine its nature (as opposed to the

status of the government actor), Berkovitz v. United States, 486

U.S. 531, 536 (1988), engaging in a binary analysis to ascertain

whether Congress sought to shelter that kind of conduct from tort

liability, Muniz-Rivera, 326 F.3d at 15.
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The first part of that analysis asks whether the conduct

itself is discretionary, that is, "a matter of choice for the

acting employee." Berkovitz, 486 U.S. at 536. This definition

excludes actions prescribed by federal statute, regulation, or

policy. Id. If the court concludes that the conduct is not a

product of discretion, the analysis ends and the discretionary

function proviso drops out of the case. See Kelly, 924 F.2d at 360

(noting that a court will proceed to the second furcula of the

discretionary function test only if it concludes that the relevant

conduct is discretionary). If, however, the court concludes that

the conduct is a product of discretion, it then must determine

whether the exercise of that discretion is susceptible to policyrelated judgments. See Berkovitz, 486 U.S. at 537.

Decisions are thought to be susceptible to policy-related

judgments if they involve an "unrestrained balancing of

incommensurable values," including a differential allocation of

resources among various political objectives. See Shansky v.

United States, 164 F.3d 688, 695 (1st Cir. 1999). On this issue,

it is the plaintiff who must carry the devoir of persuasion. See

id. at 692 (explaining that the law presumes that the exercise of

discretion implicates policy and that it is the plaintiff's burden

to demonstrate that the decision is not susceptible to policyrelated judgments). Only if the conduct is both discretionary and

policy-driven will section 2680(a) strip the court of subject
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matter jurisdiction. See Muniz-Rivera, 326 F.3d at 15; Attallah v.

United States, 955 F.2d 776, 783 (1st Cir. 1992).

Against this backdrop, the appellants argue that the FBI

had an obligation under federal law to disclose exculpatory

evidence to them and, therefore, that the conduct relevant to their

claim was not discretionary. This argument confuses the

ministerial duty of FBI agents to place all 302 reports in the case

file with the responsibility of FBI supervisors to oversee the work

of the agents under their command. It is the latter activity that

gives rise to the negligent supervision claim. On this issue, it

is irrelevant whether Agent Craft had discretion to determine

whether particular 302 reports should be left out of the case file.

See Attallah, 955 F.2d at 783 (explaining that the judicial inquiry

must focus "on the permissible range of action available to the

government employee allegedly at fault").

Having identified the relevant activity — the FBI's

oversight of Agent Craft's handling of the 302s — we next must

consider whether that activity is discretionary and susceptible to

policy-related judgments. The appellants assign fault at a general

level to the quality of the supervision. At trial, they adduced

evidence that Agent Craft sometimes initialed 302 reports and other

documents without reviewing them thoroughly (even though his

supervisors had advised him to be more fastidious in performing

that task) and that one supervisor had written a performance
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appraisal suggesting that Craft had room for improvement in this

area. The appellants have not shown, however, that Craft's

supervisors were constrained by any law, regulation, or policy to

respond in a particular way upon learning that an agent was not

proficient at a particular task. By the same token, they have not

adverted to any federal statute, regulation, or policy that

dictates a specific regime of oversight that FBI hierarchs must

practice to ensure that agents handle exculpatory evidence

properly. Where no specific action is required within a category

of conduct and the government actors in question have latitude to

make decisions and choose among alternative courses of action, the

conduct is discretionary. See Irving, 162 F.3d at 163-64. In this

instance, there is ample room for choice in the agency's

supervision of its work force.

If more were needed — and we doubt that it is — this

court has recognized, in the context of supervision, that in the

absence of a statutory or regulatory regime that sets out

particulars as to how an agency must fulfill its mandate, the

development and management of a supervisory model is a matter of

agency discretion. Attallah illustrates the point. There, we held

that supervisory decisions of the Customs Service concerning the

oversight of customs agents were discretionary in nature. See

Attallah, 955 F.2d at 784-85.
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The appellants argue that, notwithstanding this

precedent, the supervisory decision here is beyond the domain of

discretion. They assert that even if a claim for negligent

supervision would generally be barred, the bar should not apply

here because it is unlawful for a member of the prosecution team to

withhold exculpatory evidence and it cannot be within an official's

discretion to permit unlawful behavior. To bolster this construct,

they cite Tonelli v. United States, 60 F.3d 492 (8th Cir. 1995),

for the proposition that "[f]ailure to act after notice of illegal

action does not represent a choice based on plausible policy

considerations." Id. at 496.

Tonelli is easily distinguishable. The court there

recognized that "[i]ssues of employee supervision . . . generally

involve the permissible exercise of policy judgment and fall within

the discretionary function exception," id., but left open the

possibility that an employer who had notice of ongoing illegal

activity would not be entitled to claim that a failure to act was

within the scope of discretion, see id. It therefore determined

that summary judgment would be inappropriate because a factual

dispute persisted over whether the employer had notice of the

illegal actions of its employees. Id. In this case, unlike in

Tonelli, we have the benefit of a full trial record, and we find

nothing to support the premise that FBI supervisors in the

Milwaukee office had notice of any illegal employee activity. As
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a result, we need not decide whether that situation would be

subject to the conclusions that we otherwise reach.

That ends this aspect of the matter. In Attallah, we

commented that supervision over customs agents "certainly involves

a degree of discretion . . . of the kind that Congress sought to

protect through the discretionary function exception." 955 F.2d at

784. We think that comment is fully applicable here. Accordingly,

we hold that the FBI's supervision of Craft's job performance was

discretionary in nature.

We come, then, to the question of whether this

discretionary conduct was grounded in policy. On that issue, the

government benefits from the presumption that a supervisor's

discretionary acts are grounded in policy. See United States v.

Gaubert, 499 U.S. 315, 324 (1991); Muniz-Rivera, 326 F.3d at 17.

It is the plaintiff's burden to rebut this presumption and

demonstrate that particular discretionary conduct is not

susceptible to policy-related judgments. See Shansky, 164 F.3d at

692. In this instance, the appellants have wholly failed to carry

that burden. We conclude, therefore, that the FBI's supervisory

decisions were a matter of agency discretion and involved policy

judgments of a kind that the discretionary function proviso was

intended to shield. See Attallah, 955 F.2d at 784.

To say more on this point would be to paint the lily.

Based on the foregoing, we hold that the discretionary function
8For consistency's sake, we affirm the entry of judgment in

favor of the United States with respect to this claim on an

available jurisdictional ground. We note, however, that we have

scoured the record and have found no support for the contention

that any negligence on the part of FBI supervisors was a cause-infact of Agent Craft's failure to place the 302s in the case file.

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proviso, 28 U.S.C. § 2680(a), divests the federal courts of

jurisdiction over the appellants' claim of negligent supervision.8

IV. CONCLUSION

This is a sad case. It shows that even the nation's

premier law enforcement agency sometimes bungles. But Congress has

never enacted a wholesale waiver of the federal government's

sovereign immunity from suit, so it is unsurprising that the FTCA

does not cover every error by a federal agent. Neither of the two

claims at issue here — one for negligence and the other for

negligent supervision — comes within the carapace of the carefully

limited waiver of federal sovereign immunity that the FTCA denotes.

We need go no further. We hold that the district court

lacked subject matter jurisdiction to hear the appellants' claims.

On this ground, we affirm the entry of judgment in favor of the

United States.

Affirmed.