ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Before: SEITZ and GIBBONS, Circuit Judges and BARRY, District Judge.*fn*
Ronald Pooler and Ronnie Bradley appeal from orders entered by the district court dismissing their Federal Tort Claims Act (FTCA) suits because they are barred by the discretionary function exception in that Act. See 28 U.S.C. § 2680(a)(1982). Both suits arose out of a criminal investigation conducted by the Veterans Administration (VA) at the VA Medical Center in Coatesville, Pennsylvania in March of 1981.
In separate complaints, Pooler and Bradley allege, and the government does not dispute, that they filed timely administrative claims with the Veterans Administration and that their claims were denied. Each complaint seeks recovery for an allegedly unlawful arrest and an allegedly unlawful prosecution. The arrests were made pursuant to warrants issued by a Pennsylvania judicial officer on charges that Pooler and Bradley sold marijuana on the premises of the VA hospital. Curtis Kimmel, a police officer employed by the VA, filed criminal charges against Pooler and Bradley at the culmination of an investigation into narcotics sales at the VA hospital.
In their complaints, Pooler and Bradley allege that Kimmel's investigation and his decision to file criminal charges were deficient in several respects. First, with respect to the investigation, they allege that Kimmel, in engaging the services of a VA employee, John Cantrell, to serve as an informant, selected an unreliable person with known past drug involvement, and of less than average mental capacity. Second, they allege that Kimmel failed to instruct Cantrell how to conduct himself so as to avoid violating the rights of persons that he would approach in his capacity as an informant. Third, they allege that Kimmel failed to verify, corroborate, or surveil any of the drug transactions entered into by Cantrell, Pooler and Bradley, and thus they aver that his conclusion that they sold marijuana depended solely on the unsubstantiated word of an unreliable informant.
With respect to the decision to file criminal charges, Pooler and Bradley allege that in bringing the charges to the attention of the district attorney's office Kimmel failed to disclose to that office the deficiencies in his investigative methods. They further allege that if those deficiencies had been revealed, the district attorney's office would not have initiated prosecution. Because of Kimmel's failure to disclose this information, they allege that they were arrested and detained until they could arrange for bail. The charges against them, however, were eventually nolle prossed. Finally, Pooler and Bradley claim that Kimmel did not file the charges against them in good faith, but filed them for the purpose of salvaging something from his investigation at the VA hospital and thus for the purpose of saving face.
The district court dismissed the complaints at the pleading stage on the ground that the actions complained of fell within the discretionary function exception to the FTCA. The FTCA provides that despite the general rule that "the United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances," 28 U.S.C. § 2674 (1982), it remains immune from liability for:
any 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.
28 U.S.C. § 2680(a). The actions complained of are (1) Kimmel's manner of conducting the investigation, and (2) Kimmel's decision to file charges with the Pennsylvania authorities.