OPINION AND ORDER
Before the Court is the Government's motion to dismisspursuant to Federal Rules 12(b)(1) and 12(b)(6). Plaintiffs areJosé Torres Dueñ ("Torres") and his four children.1 Torresbrings this action against the United States of America underthe Federal Tort Claims Act ("FTCA").2 His claim arisesout of an earlier criminal prosecution brought by the Governmentagainst him and two other individuals for alleged violations offederal tax laws.3 The criminal case, which was heard byJudge Cerezo, went to trial in 1999. In the middle of the trial,the Government announced that it had discovered in itspossession an exculpatory document and that as a result it wasmoving to dismiss all the charges with prejudice. The defendantsconsented and the case was dismissed. See United States v.Nogueras-Cartagena, 1999 WL 544752 (P.R. June 25, 1999). Torresthen initiated the present claim.
The Government moves for dismissal of part of Torres' claimpursuant to Rule 12(b)(1) and for dismissal of the rest of theclaim pursuant to Rule 26(b)(6). In ruling on a motion todismiss under Rule 12(b)(6), a court takes all well-pleadedallegations to be true and draws all reasonable inferences inthe plaintiffs favor. Rogan v. Menino, 175 F.3d 75, 77 (1stCir. 1999). The standard to be used in a Rule 12(b)(1) motiondepends on the nature of the movant's argument. See Valentin v.Hospital Bella Vista, 254 F.3d 358, 362-366 (1st Cir. 2001);RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125,1134 (6th Cir. 1996); Mortensen v. First Fed. Sav. & LoanAss'n, 549 F.2d 884, 890-91 (3rd Cir. 1977). Where, as here,the movant accepts the plaintiffs version of the jurisdictionalfacts but contests their sufficiency for establishingjurisdiction, the court subjects the complaint to the samereview as it would for a Rule 12(b)(6) motion. That is, thecourt credits the plaintiffs well-pleaded factual allegations astrue and draws all reasonable inferences in his favor.Valentin, 254 F.3d at 363-364; Pejepscot Indus. Park, Inc. v.Maine Cent. R.R., 215 F.3d 195, 197 (1st Cir. 2000).
The indictment in the criminal case charged Torres withconspiring to defraud the United States by impeding the IRS'collection of taxes, in violation of 18 U.S.C. § 371; withrepresenting his co-defendant before the IRS with the intent ofinfluencing the agency's handling of matters regarding theco-defendant, in violation of 18 U.S.C. § 2 and 207(a); andwith corruptly endeavoring to impede the IRS' efforts to collecttax penalties from his co-defendant, in violation of26 U.S.C. § 7212(a).4
Torres alleges the following in his complaint: that he hadworked in the "highest position" of the Internal RevenueService's Puerto Rico office; that the IRS and FBI agents whoappeared before the grand juries in the criminal case submittedincomplete and erroneous evidence; that he was arrested at hishome by IRS and FBI agents using an "unusual display of forceincluding a large number of agents with rifles and other arms";that the alleged facts in the indictment were incomplete,insufficient, and incorrect; that IRS and FBI agents werenegligent and derelict in their handling of the case file andevidence; that these agents were grossly negligent in theirinvestigation; that the Government is liable for the intentionaland tortious acts committed by these agents while they carriedout their investigative and law enforcement duties, includingexecuting a search, seizing evidence, and making an arrest; andthat he suffered serious mental anguish as a result of theintentional and negligent infliction of emotional distress bythese government agents. These allegations can be boiled down tothe following three claims: that FBI and IRS agents werenegligent in investigating this case and in handling itsevidence; that the agents used an excessive display of force inhis arrest; and that they maliciously prosecuted him. The Courtreads these first two claims to be ones that the agents werenegligent.
The Government argues that Torres' claims of negligence arebarred by the FTCA's discretionary function exception and thatthis Court therefore lacks jurisdiction to hear them. TheGovernment further argues that the complaint fails to state amalicious prosecution claim. Torres has opposed the motion todismiss. For the reasons set forth below, the Court grants theGovernment's motion.
1. Claim of negligence in the investigation and in the handling of files and evidence
The Government argues that Torres' claim that the IRS and FBIagents acted negligently in their investigation ofhis case and in the handling of the files and evidence is barredby the discretionary function exception of the FTCA. Under theFTCA, the United States is liable for the acts or omissions of agovernment employee acting within the scope of his office if aprivate person would be liable for the same acts or omissionsunder the law of the place where the injury occurred.28 U.S.C.A. § 1346(b); Shuman v. United States, 765 F.2d 283, 288(1st Cir. 1985). There are a number of exceptions to this waiverof the Government's sovereign immunity. See 28 U.S.C.A. §2680. In the present case, the Government invokes thediscretionary function exception which bars
Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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. § 2680(a). In determining whether this exception isapplicable, the court first identifies the government conduct atissue and then determines whether the conduct was discretionary.Irving v. United States, 162 F.3d 154, 162 (1st Cir. 1998).The conduct of which Torres complains is the IRS and FBI agents'investigating his case and handling the file and evidence. Heclaims the agents were negligent in their performance of theseduties. The decision to investigate or prosecute an individualfalls squarely within the discretionary function exception.Horta v. Sullivan, 4 F.3d 2, 21 (1st Cir. 1993) ("[A]lthoughlaw enforcement agents have a mandatory duty to enforce the law,decisions as to how best to fulfill that duty are protected bythe discretionary function exception to the FTCA."); Kelly v.United States, 924 F.2d 355, 362 (1st Cir. 1991) ("Sincedecisions to investigate, or not, are at the core of lawenforcement activity, the bureau chiefs' challenged conductinvolved precisely the kind of policy-rooted decisionmaking thatsection 2680(a) was designed to safeguard."). Additionally, thedecision on how to carry out the investigation is alsoprotected. Horta, 4 F.3d at 21; see also Sloan v. UnitedStates Dep't of Hous. and Urban Dev., 236 F.3d 756, 762(D.C.Cir. 2001) ("[T]he sifting of evidence, the weighing of itssignificance, and the myriad other decisions made duringinvestigations plainly involve elements of judgment andchoice."); Sabow v. United States, 93 F.3d 1445, 1453 (9thCir. 1996); Pooler v. United States, 787 F.2d 868, 871 (3rdCir. 1986) ("Congress did not intend to provide for judicialreview of the quality of investigative efforts."); Doherty v.United States, 905 F. Supp. 54, 56-57 (Mass. 1995); Reeves v.United States, 809 F. Supp. 92, 95 (N.D.Ga. 1992), aff'd,996 F.2d 1232 (11th Cir. 1993) (Unpublished table case). Therefore,Torres' claims that the IRS and FBI agents negligentlyinvestigated his case and handled its evidence are barred by thediscretionary function exception.5 Accordingly, thisCourt lacks jurisdiction to hear his claims ofnegligence.6
2. Claim of malicious prosecution
Torres also brings a claim for malicious prosecution by theIRS and FBI agents. The United States argues that his complaintfails to state a claim for malicious prosecution. For a claim ofmalicious prosecution under Puerto Rico law, the plaintiff mustshow that (1) the defendant initiated and instigated a criminalcase against him; (2) the defendant initiated the case withmalice and without probable cause; (3) the criminal case wasterminated in favor of the plaintiff; and (4) the plaintiffsuffered damages as a result. Negron-Rivera v. Rivera-Claudio,204 F.3d 287, 290 (1st Cir. 2000). This second element has twodistinct sub-parts: plaintiff must show both that the defendantacted with malice and that he acted without probable cause.Id. (quoting Rivera-Marcano v. Normeat Royal Dane Quality,998 F.2d 34, 37 (1st Cir. 1993)). For purposes of a maliciousprosecution claim, the existence of probable cause does notdepend on whether or not the offense was actually committed;probable cause exists if there was a suspicion based uponcircumstances sufficiently strong to justify a reasonable beliefthat the charge is true. Abreu-Guzman v. Ford, 69 F. Supp.2d 274,285 (P.R. 1999), aff'd, 241 F.3d 69 (1st Cir. 2001).
In its motion to dismiss, Defendant focuses its argument onthe third element. This argument is well-founded. Torres'complaint lacks any specific allegations that the IRS and FBIagents acted with malice. Although he does refer to intentionalacts and omissions of law enforcement agents, he does notprovide any specificity as to what these acts and omissionswere. The complaint also fails to allege that these agents actedwithout probable cause. The complaint is so lacking inspecificity that the Court is therefore unable to draw anyreasonable inferences that Torres has sufficiently stated aclaim that the agents acted with malice and without probablecause. Accordingly, his claim of a malicious prosecution isdismissed.
The Court does grant Torres leave to amend his complaint toadequately plead a claim of malicious prosecution. Because theCourt has determined above that it lacks jurisdiction to hearclaims of negligence by the IRS and FBI agents, Torres shouldlimit any amendment to claims of malicious prosecution. Theamended complaint must be filed by August 15, 2001.If Torres does choose to file an amended complaint, he shouldsufficiently specify the nature of his malicious prosecutionclaim. See Sutton, 819 F.2d at 1299 (Requiring plaintiffbringing a malicious prosecution claim under the FTCA to pleadspecific facts with sufficient particularity to establish allthe necessary elements). For example, the indictment in thecriminal case charged Torres in three of the five counts. Anyamended complaint should specify for which of these counts is hebringing his claim, what conduct by the agents was done withmalice, and what facts establish a lack of probable cause.Torres should bear in mind that if the IRS and FBI agents couldhave had an objectively reasonable belief that there wasprobable cause that Torres engaged in the conduct charged in theindictment, no claim for malicious prosecution may proceed. SeeAbreu-Guzman v. Ford, 241 F.3d 69, 75-76 (1st Cir. 2001). IfTorres does not file an amended complaint by August 15, 2001,the Court will enter judgment dismissing this case.
WHEREFORE, the Court grants the motion to dismiss (docketno. 16).
IT IS SO ORDERED.
1. Because the children's claims are derivative of those oftheir father, the Court will, in the interest of conciseness,refer in this opinion only to Torres.
2. 28 U.S.C.A. § 1346(b) (West 1993 & Supp. 2000) & §§2671-2680 (West 1994).
3. Crim. no. 96-104(CCC).
4. Docket no. 16, exhibit A.
5. In his opposition to the motion to dismiss, Torres citesto two cases in support of the proposition that law enforcementagents are not protected by the discretionary functionexception. The cases he cites, however, involved claims ofmalicious prosecution. See Sutton v. United States,819 F.2d 1289, 1290-98 (5th Cir. 1987); Wright v. United States,719 F.2d 1032, 1033 (9th Cir. 1983). The Government has only raisedthe discretionary function defense with regard to Torres' claimsof negligence by the law enforcement agents. The Court addressesTorres' claim of malicious prosecution in part 2. of thisopinion and order.
6. Torres also claims that law enforcement agents used anexcessive show of force when they arrested him. The Courtconsiders this claim to be part of his claim that the agentswere negligent in their handling of his case. To the extent thatthe alleged excessive show of force constitutes a separateclaim, it too falls within the discretionary function exception.See Flax v. United States, 847 F. Supp. 1183, 1191 (N.J. 1994)(Agents' decision on how to apprehend alleged perpetrators wasprotected by discretionary function exception); Amato v. UnitedStates, 549 F. Supp. 863, 866-67 (N.J. 1982) (Decision of whenand how to arrest perpetrators was a discretionary function),aff'd, 729 F.2d 1445 (3rd Cir. 1984) (Unpublished table case).Thus, whether the claim of an excessive show of force is treatedas a separate cause of action or as part of Torres' overallclaim of negligence in the handling of his case, the claim isbarred by the discretionary function exception.
The manner in which the arrest was carried out is protected bythe discretionary function exception. However, the allegationsdescribing the arrest, if true, are troubling. Given the natureof the offenses charged, none of which involved violence, such adisplay of force hardly seems warranted. The Court expectsfederal law enforcement agents to be more discrete in handlingsuch situations.