WASHINGTON, D.C. - (Mealey's) Section 26809(h) of 28 U.S.
Code clearly provides a waiver of sovereign immunity and "extends the waiver to
any claim for one of the six enumerated torts committed by a Federal
investigative or law enforcement officer acting within the scope of his or her
employment," the attorney for a federal inmate suing the United States for
assault at the hands of correctional officers argued before the U.S. Supreme
Court this morning (Kim Millbrook v. United States, No. 11-10362, U.S.
Sup.) (lexis.com subscribers may access Supreme Court briefs for this case).
Kim Millbrook is an inmate at the U.S. Penitentiary,
(USP-Lewisburg). He sued the United States in the U.S. District
Court for the Middle District of Pennsylvania under the Federal Torts Claims
Act (FTCA). He claims that he was subjected to sexual assault while
housed in the Special Management Unit (SMU) at USP-Lewisburg on March 5,
2010. He alleges that on that date he was taken to the basement of the
SMU and forced to perform oral sex on one correctional officer while another
officer held his neck and a third stood by the door and watched.
The District Court concluded that the United States was
entitled to summary judgment because Millbrook's FTCA claim was precluded by Pooler
v. United States (787 F.2d 868, 872 [3d Cir. 1986]) [an enhanced version of this opinion is available to lexis.com subscribers].
Millbrook appealed. The Third Circuit U.S. Court of Appeals on April 23,
2012, affirmed the District Court's ruling. Millbrook then petitioned the
U.S. Supreme Court.
The high court agreed to consider whether 28 U.S. Code
Sections 1346(b) [an annotated version of this statute is available to lexis.com
subscribers] and 2680(h) [annotated version] "waive the sovereign immunity of the
United States for the intentional torts of prison guards when they are acting
within the scope of their employment but are not exercising authority to
'execute searches, to seize evidence, or to make arrests for violations of
Assistant to the Solicitor General Anthony A. Yang,
representing the United States (which reversed its position in December and
supported the reversal and remand), told the high court that "[t]he text and
structure of the law enforcement proviso in the Federal Tort Claims Act more
generally makes clear that the proviso unambiguously waives sovereign immunity
for claims arising under the six intentional torts listed for acts or omissions
of persons qualifying as Federal law enforcement officers while acting within
their scope of employment."
He added that nothing in the statute supports an argument
by Jeffrey S. Bucholtz of King & Spalding in Washington, the court-appointed amicus
curiae to present arguments in support of the Third Circuit's decision,
that such officers should be acting in a law enforcement capacity or exercising
law enforcement authority.
When asked by Justice Elana Kagan to explain what might
meet the "scope of employment" test but not the "acting as a law enforcement
officer" test, Yang replied, "It could mean various things. It could
mean, for instance, something as limited as executing a search, seizing
evidence or making an arrest. . . . It could be something incident
to that, writing a report. . . . It could be other things. Law
enforcement officers often aren't doing the very things that we're talking
about. They go on patrol, they talk to kids in schools. There are
all types of things that law enforcement officers might do that don't fall
within what . . . one might think of as what, you know, you see on television
when officers are making contact with the public in rather high stakes
Bucholtz, in his arguments before the high court, asked
that the Third Circuit decision be affirmed. "[I]n the first sentence of
the proviso, the operative provision, Congress referred to acts or omissions of
investigative or law enforcement officers of the United States. Congress
didn't say any acts or omissions of investigative or law enforcement officers
were covered. It didn't say all were covered. It just said acts or
omissions of law enforcement officers in the same way that the statute at issue
in Lane [v. Pena (518 U.S. 187 )] referred to conduct of a
federal funding provider. And so what this Court should
do, we submit, is construe acts or omissions of investigative or law
enforcement officers of the United States as limited to acts or omissions of
those defined-that defined class of persons in the relevant capacity, where
they're acting as law enforcement officers," Bucholtz told the high court.
Christopher J. Paolella of Reich & Paolella in New York represents
Douglas Hallward-Driemeier of Ropes & Gray in Washington filed an amicus brief on behalf of
Lambda Legal Defense and Education Inc., Just Detention International, National Center for Transgender Equality,
Transgender Legal Defense and Education Fund and Women's Prison
Association. Ronald C. Travis of Williamsport,
Pa., filed an amicus brief
on behalf of Lewisburg Prison Project. John W. Whitehead of The
Rutherford Institute in Charlottesville,
Va., filed an amicus brief
on behalf of The Rutherford Institute.
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