WASHINGTON, D.C. - (Mealey's) The Federal Tort Claims Act
(FTCA) waives sovereign immunity for law enforcement officers' acts where a
claim arises out of one of six intentional torts where an officer is "acting
within the scope of his office or employment," a unanimous U.S. Supreme Court
ruled March 27, reversing a Third Circuit U.S. Court of Appeals decision (Kim
Millbrook v. United States, No. 11-10362, U.S. Sup.; See March 2013, Page
31) (lexis.com subscribers may access Supreme Court briefs and the opinion for this case).
"The plain language of the law enforcement proviso
answers when a law enforcement officer's 'acts or omissions' may give rise to
an actionable tort claim under the FTCA. The proviso specified that the
conduct must arise from one of the six enumerated intentional torts and, by
expressly cross-referencing §1346(b), indicates that the law enforcement
officer's 'acts or omissions' must fall 'within the scope of his office or
employment.' §§2680(b), 1346(b)(1). Nothing in the text further
qualifies the category of 'acts or omissions' that may trigger FTCA liability,"
Justice Clarence Thomas wrote for the court.
Although a number of lower courts, including the Third
Circuit, have construed the proviso more narrowly, none of those
interpretations is correct, the high courtruled. "Had Congress intended
to further narrow the scope of the proviso, Congress could have limited it to
claims arising from 'acts or omissions of investigative
or law enforcement officers acting in a law enforcement or investigative
capacity.' See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 227
(2008) [an enhanced version of this opinion is available to lexis.com
subscribers] . Congress adopted similar limitations in neighboring provisions,
see §2680(a) . . ., but did not do so here. We, therefore, decline to
read such a limitation into unambiguous text," the high court held.
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 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]) [enhanced version]. 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. Oral arguments were held Feb. 19.
Christopher J. Paolella of Reich & Paolella in New York represents
Douglas Hallward-Driemeier of Ropes & Gray in Washington filed an amicus curiae 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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