Today’s news media is full of stories about supposed malicious allegations, unfounded criminal investigations and indictments based on perjury.
Regardless of our political leanings, all of us should hope that such things are actually exceedingly rare. However, a case decided recently by the Sixth Circuit Court of Appeals shows that such things really do happen. Mynatt v. United States, — F.4th —-, 2022 WL 3335690 (August 12, 2022).
This was a civil case filed by Kenneth Mynett, an IRS employee, against the United States and various federal employees. The suit was based upon the fact that, some years ago, he had “blown the whistle” to a member of the United States Congress about IRS waste of governmental resources. He also gave a newspaper interview in which he was critical of the IRS employees’ union and perceived “abuses of power” by the president of the union.
These events did not sit well with Mynett’s fellow IRS employees and union members. Various federal employees formed a plan to retaliate against him by framing Mynett for stealing funds from the IRS employees’ union. The conspiracy’s first step was for two separate employees to report the alleged theft to two federal entities, the Department of Labor’s Office of Labor Management Standards and the Treasury Inspector General for Tax Administration. These reports triggered internal investigations, and government agents urged the filing and prosecution of federal felony charges against him. But the Department of Justice determined the alleged crimes did not occur, that the investigations were political in nature, and so declined to prosecute.
The co-conspirators then turned to Tennessee’s criminal justice system, lobbying state district attorneys to pick up the case. The federal employees and agents presented “false testimony and forged documents” to the state prosecutors. The plan culminated with an IRS special agent testifying before a state grand jury using false testimony and altered documents, which resulted in a two-count grand-jury indictment of Mynatt.
During the resulting criminal proceedings, Mynatt was pressured to plead guilty to lesser unfounded misdemeanor charges and an offer was made to drop all criminal charges if he resigned his employment with the federal government.
The state District Attorney ultimately dismissed the charges, after the federal employees upon whose testimony the indictment was based admitted that they had been pressured to have Mynatt indicted and that the charges were not based on provable facts.
Mynett brought suit in federal court against the United States and the federal employees who had framed him for malicious prosecution and civil conspiracy via the Federal Tort Claims Act (FTCA). The FTCA only permits certain kinds of claims to be brought against the United States or federal employees. Claims arising from discretionary aspects of a federal employee’s conduct are not permitted.
The government moved to dismiss the complaint based upon the FTCA’s discretionary-function exception. Agreeing that making allegations regarding Myett’s conduct to state prosecutors was a discretionary act, the district court dismissed Myatt’s suit.
The Court of Appeals assumed without deciding that bringing allegations before a state prosecutor and grand jury could be discretionary. But the Court questioned whether presenting false evidence (in testimonial or documentary form) to a prosecutor and then to a grand jury is the type of conduct that the discretionary-function exception of the FTCA was designed to shield. Answering its own question, the Court said, “The answer here is plainly no.”
The moral of this case is that intentionally placing false evidence before a prosecutor or a court is not a protected “discretionary” act.
Mynett’s case was remanded back to the trial court for additional proceedings. How the matter will ultimately be resolved is, at this point, unknown. There are other FTCA hurdles which Myett will still have to deal with. For example, the FTCA limits the liability of the United States for certain intentional torts committed by its agents, specifically including malicious prosecution and deceit. Damages against the agents personally may still be possible, but without the “deep pockets” of the federal government behind it, a damage award may be uncollectible and virtually worthless.
Also unknown is whether the persons accused of framing Mr. Mynett will have to face criminal charges of their own based upon their perjurious conduct.