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.) (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, Lewisburg Pennsylvania (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 Millbrook.
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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