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 Feb. 19 (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, Lewisburg, Pa, (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 federal law.'"
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 incidents."
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 Millbrook.
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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