Independent Military Purpose Shields Army CID Investigations from FTCA Liability; Posse Comitatus Not Violated Absent Pervasive Civilian Law-Enforcement Role

Introduction

In Perales-Muñoz v. United States, the First Circuit affirmed the dismissal of a Federal Tort Claims Act (FTCA) suit brought by a former Army National Guard recruiter assistant and his conjugal partnership. The plaintiffs alleged a negligent Army Criminal Investigation Division (CID) investigation into suspected fraud in the National Guard Recruiting Assistance Program led to wrongful indictments and severe emotional harm. The district court dismissed for lack of subject-matter jurisdiction under the FTCA’s discretionary function exception (DFE). On appeal, the central questions were:

• Whether the DFE bars claims arising from CID’s investigative decisions and communications with federal prosecutors.
• Whether the CID’s conduct violated binding law, namely the Posse Comitatus Act (PCA), 18 U.S.C. § 1385, or Army Regulation 195-2 (AR 195-2), thereby removing the conduct from the DFE’s protection.

Writing for the court, Judge Montecalvo concluded that the complaint failed to plausibly allege a PCA violation, that the “independent military purpose” doctrine applies to CID’s actions here, and that the plaintiff forfeited his AR 195-2 argument by not objecting to the magistrate judge’s analysis below. Accordingly, the First Circuit held that the DFE deprived the federal courts of jurisdiction over the FTCA claim and affirmed.

Summary of the Judgment

The First Circuit affirmed the district court’s Rule 12(b)(1) dismissal for lack of subject-matter jurisdiction. The court held:

• The FTCA’s discretionary function exception bars suits based on discretionary investigative judgments by federal law-enforcement personnel, unless the plaintiff shows the “harm-producing conduct” violated a specific, mandatory statute, regulation, or policy.
• The complaint did not plausibly allege that CID’s involvement violated the Posse Comitatus Act. Even accepting that CID passed information to civilian prosecutors, the conduct served an “independent military purpose” (protecting Army funds and ensuring the integrity of Army National Guard recruiting), and there was no allegation of pervasive military participation in civilian law enforcement.
• The appellant waived any challenge under AR 195-2 by failing to object to the magistrate judge’s report and recommendation (R&R) analysis on that point; the appellate court therefore would not disturb the district court’s conclusion that the regulation authorized CID’s investigation.
• Because no binding directive was violated, the DFE applies, sovereign immunity remains intact, and federal courts lack jurisdiction over the plaintiffs’ claims.

Analysis

Precedents Cited and How They Shaped the Decision

• Berkovitz v. United States, 486 U.S. 531 (1988), and Mahon v. United States, 742 F.3d 11 (1st Cir. 2014): The court reiterated Berkovitz’s core rule, quoted in Mahon: the DFE does not apply where a statute, regulation, or policy specifically prescribes a course of action, leaving no room for discretion. Plaintiffs must therefore point to a binding mandate and show the government violated it.
• Limone v. United States, 579 F.3d 79 (1st Cir. 2009): The DFE does not immunize conduct that violates a binding statute or regulation. This principle undergirds plaintiffs’ strategy in FTCA cases: identify, and plausibly allege violation of, a mandatory directive.
• Reyes-Colón v. United States, 974 F.3d 56 (1st Cir. 2020): Reaffirmed the breadth of the DFE, particularly in policy-laden settings, and the jurisdictional nature of sovereign immunity limits.
• Red Lake Band of Chippewa Indians v. United States, 800 F.2d 1187 (D.C. Cir. 1986): A government official has no discretion to violate laws that define the scope of authority. The First Circuit recognized this bedrock limit on the DFE.
• Posse Comitatus Act line of cases:
  • United States v. Dreyer, 767 F.3d 826 (9th Cir. 2014): PCA concerns are implicated when military involvement in civilian law enforcement becomes substantial; yet an “independent military purpose” can justify military action.
  • Applewhite v. U.S. Air Force, 995 F.2d 997 (10th Cir. 1993): No PCA violation where there is an independent military purpose—i.e., the military is not willfully used as a civilian posse to execute the laws.
  • Hayes v. Hawes, 921 F.2d 100 (7th Cir. 1990): Courts look for “pervasive” military participation in civilian law-enforcement activities before finding a PCA violation.
  • United States v. Bacon, 851 F.2d 1312 (11th Cir. 1988): Military assistance that does not pervade civilian law-enforcement activities and does not subject citizens to military power does not violate the PCA.
  • United States v. Chon, 210 F.3d 990 (9th Cir. 2000): Recognizes and applies Department of Defense regulations interpreting the PCA, including the “independent military purpose” doctrine.
  These authorities collectively support the First Circuit’s conclusion that CID’s conduct—focused on protecting Army recruiting integrity and funds—fit within a recognized independent military purpose and fell short of any “pervasive” military enforcement in the civilian sphere.
• Tirado-Acosta v. Puerto Rico National Guard, 118 F.3d 852 (1st Cir. 1997): The court referenced the PCA’s general purpose of limiting federal troops’ domestic law-enforcement role.
• Keating v. Sec’y of Health & Human Servs., 848 F.2d 271 (1st Cir. 1988), and M. v. Falmouth School Department, 847 F.3d 19 (1st Cir. 2017): Establish the preservation rule for magistrate judge R&Rs—issues not specifically objected to are waived on appeal. This controlled the court’s refusal to revisit the AR 195-2 analysis.
• Standards and burden authorities: Town of Barnstable v. O’Connor, 786 F.3d 130 (1st Cir. 2015) (de novo review of jurisdictional dismissal); Hajdusek v. United States, 895 F.3d 146 (1st Cir. 2018) (favorable inferences at 12(b)(1)); Murphy v. United States, 45 F.3d 520 (1st Cir. 1995) (plaintiff bears jurisdictional burden); Carroll v. United States, 661 F.3d 87 (1st Cir. 2011) and Aversa v. United States, 99 F.3d 1200 (1st Cir. 1996) (court may consider evidence outside the pleadings on a 12(b)(1) motion); Gagliardi v. Sullivan, 513 F.3d 301 (1st Cir. 2008) (scope of materials).

Legal Reasoning

The First Circuit applied the FTCA’s jurisdictional scheme and the DFE’s two-part framework. First, it recognized that investigative decision-making by federal law enforcement personnel—whether to investigate, how to prioritize leads, and whether to share information with prosecutors—inherently involves discretion. Second, it asked whether a specific, binding directive removed that discretion.

The plaintiffs posited two candidate limits: the Posse Comitatus Act and AR 195-2. The court rejected both as jurisdictional anchors for different reasons.

• Posse Comitatus Act:
  • The complaint did not allege that CID directly performed civilian law-enforcement functions (e.g., arresting the plaintiff, executing search warrants, conducting civilian interviews) in a manner that “executed the laws.”
  • At most, CID’s activity amounted to alerting federal prosecutors to suspected fraudulent activity in the Army National Guard Recruiting Assistance Program. Even if that could be construed as “executing the laws,” the court agreed with the district court that the action served an “independent military purpose”—protecting the integrity of Army recruiting and safeguarding Army funds—and thus was not proscribed by the PCA.
  • There were no allegations of “pervasive” military involvement in the civilian investigation or prosecution; the plaintiff’s pleadings lacked the factual heft required to trigger PCA concerns under cases like Hayes and Bacon.
  Because no PCA violation was plausibly pled, the PCA did not negate discretion or defeat the DFE.
• AR 195-2:
  • The magistrate judge conducted an “extensive” analysis and concluded AR 195-2 authorized CID’s investigation here.
  • The plaintiffs did not object to that portion of the R&R. Under First Circuit precedent, failure to object with specificity forfeits the issue for appellate review.
  • Consequently, the appellate court treated the AR 195-2 argument as waived and left intact the district court’s determination that the regulation posed no constraint violated by CID.

With no binding law violated, the “harm-producing conduct” remained discretionary. The DFE therefore preserved sovereign immunity, depriving the courts of jurisdiction. The panel emphasized that the plaintiff bore the burden to establish jurisdiction and did not carry it.

Impact and Significance

• FTCA suits targeting military investigations face a high bar. Investigative choices by military law-enforcement entities like CID will generally be treated as discretionary, triggering the DFE, unless plaintiffs can point to and plausibly plead violation of a specific, mandatory directive.
• Posse Comitatus claims require detailed facts. The decision underscores that general allegations of military involvement in a matter later prosecuted by civilians do not make out a PCA violation. Plaintiffs must allege:
  • Concrete military conduct in “executing the laws” (e.g., arrests, searches) within the civilian sphere, and
  • Participation so “pervasive” that civilian law enforcement was effectively supplanted, or
  • That the conduct lacked an “independent military purpose.”
  Absent such facts, the DFE will likely bar FTCA claims premised on a PCA theory.
• Independent military purpose remains a robust shield. The court accepted the doctrine as articulated in Department of Defense regulations and applied in multiple circuits. Protecting military resources and mission integrity—here, the proper functioning of Army National Guard recruiting—qualifies as such a purpose.
• Preservation matters. The case is a cautionary tale on appellate strategy: failure to object to an R&R’s reasoning on a crucial issue (AR 195-2) forfeits the argument and can be outcome-determinative.
• Practical effect on future litigation:
  • Plaintiffs must marshal specific directives and concrete facts showing a violation; mere disagreement with investigative conclusions or the fact of later dismissal of charges will not suffice to overcome the DFE.
  • Government defendants have a clear roadmap to invoke the DFE early: emphasize investigative discretion, the absence of mandatory constraints, and any independent military purpose for the conduct.

Complex Concepts Simplified

• Sovereign immunity: The default rule is that you cannot sue the United States unless Congress consents. The FTCA is one such consent, but its exceptions (like the DFE) are jurisdictional gates that, if applicable, bar the suit entirely.
• Federal Tort Claims Act (FTCA): Allows suits against the United States for certain torts by federal employees acting within the scope of employment. Plaintiffs must clear all exceptions to the FTCA’s waiver.
• Discretionary Function Exception (DFE): Retains immunity for claims “based upon” the performance or nonperformance of discretionary functions, even if the discretion is abused. If a mandatory, specific directive exists and is violated, the conduct is no longer “discretionary,” and the DFE does not apply.
• Posse Comitatus Act (PCA): Prohibits willful use of the Army, Air Force, Marine Corps, Navy, or Space Force to “execute the laws,” unless authorized by Congress or the Constitution. Courts often ask whether military involvement in civilian law enforcement was “pervasive” and whether there was an “independent military purpose” justifying the military’s role.
• Independent military purpose: A doctrine recognized in Department of Defense regulations and case law. If the military’s actions serve a bona fide military objective (e.g., protecting military property, funds, missions, or personnel), those actions generally do not violate the PCA even if they relate tangentially to civilian law enforcement.
• Preservation of objections to a magistrate judge’s R&R: To obtain appellate review of an R&R’s analysis, a party must file specific, timely objections. Failure to do so typically waives the issue on appeal.

Conclusion

Perales-Muñoz reinforces a clear jurisdictional message: absent a plausible allegation that military investigators violated a specific binding directive—statutory, regulatory, or policy—the FTCA’s discretionary function exception preserves sovereign immunity for investigative decisions by entities like the Army CID. The decision clarifies that sharing information with civilian prosecutors about suspected fraud in a military recruiting program does not, without more, run afoul of the Posse Comitatus Act, especially where the conduct advances an independent military purpose and is not “pervasive” military participation in civilian law enforcement.

Equally important is the procedural takeaway: litigants must preserve objections to a magistrate judge’s report to secure appellate review. Here, the failure to challenge the AR 195-2 analysis foreclosed a potentially dispositive argument. In the broader legal landscape, the ruling will make FTCA suits predicated on allegedly negligent military investigations harder to sustain and will guide both plaintiffs and the government in framing, defending, and adjudicating similar claims.