Kim Millbrook, a federal inmate at the United States Penitentiary in Lewisburg, Pennsylvania, sued the United States under the Federal Tort Claims Act ("FTCA") for the alleged sexual assault and battery he suffered from three correctional officers at the prison. The important issue in the case is how to understand the sovereign immunity provisions of the FTCA, and when federal correctional officers can be sued for their tortious conduct. Millbrook contends that while the FTCA generally provides sovereign immunity to the Government for torts committed by their employees while at work, the FTCA waives sovereign immunity for specific intentional torts committed by law enforcement officers during the scope of the officers’ employment. The Third Circuit has limited this waiver of sovereign immunity to instances where the enforcement agent is executing a search, seizing evidence, or making an arrest for violations of federal law. The Supreme Court will resolve a circuit split over how narrowly the waiver of sovereign immunity should be read. How the Court decides this case will determine when a federal correctional officer can be sued for his tortious conduct, and has significant implications for the protection of vulnerable prisoners against assault and abuse.
Whether 28 U.S.C §§1346(b) and 2680(h) 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."
Are prison guards, as officers of the United States government, protected by the sovereign immunity of the United States against intentional tort claims when they are acting within the scope of their employment?
Kim Millbrook is a federal prison inmate currently residing at the United States Penitentiary in Lewisburg, Pennsylvania. Millbrook v. U.S., 477 Fed. Appx. 4, 4 (2012). Prisoner Millbrook filed suit in connection with a complaint arising out of events occurring on March 5, 2010, while he was being housed in the USP-Lewisburg Special Management Unit (“SMU”). Id. at 4-5. Millbrook alleged that he was assaulted and abused by security guards at the prison on the day in question, and he consequently filed suit under the Federal Tort Claims Act ("FTCA") against them. Id. at 4.
Millbrook complained of a specific incident occurring on March 5, and implicated three particular Correctional Officers in the event: Officer Pealer, Officer Edinger, and Officer Gimberling. Id. at 5. Specifically, Millbrook asserts that he was taken to the basement of the SMU on March 5, and “forced to perform oral sex" on Officer Pealer. Id. at 5. He claims Officer Edinger forcibly held him by the throat during the event, while Officer Gimberling guarded the door. Id. at 4-5. Millbrook reported the incident the next day, and eventually filed suit against the United States for sexual assault and battery seeking relief under the FTCA because the officers were acting within the scope of their employment. See Brief for Lambda Legal Defense and Education Fund, Inc. as Amici Curiae in Support of Petitioner, at 2-3
Defendant filed a motion to dismiss, and claimed that Millbrook was in a fight on March 4, 2010. See Millbrook, at 5. This fight supposedly resulted in both inmates being removed from their cells and placed in separate holding so their injuries could be assessed. Id. at 5. Millbrook then alleged the sexual assault the next day, but an internal investigation ruled that Millbrook could not substantiate his claim of rape or sexual assault. Id. at 5.
The U.S. District Court for the Middle District of Pennsylvania granted defendant’s motion for summary judgment. Id. at 5. The court claimed the FTCA provided a remedy for the torts of employees of the United States, but the U.S. had sovereign immunity for the intentional torts of its employees, unless the employees are law enforcement officials. Id. at 5. Certain enumerated intentional torts are not immune, but the Third Circuit has ruled that the government only waives its sovereign immunity for these torts when a law agent commits these torts during a search, evidence seizure, or while making an arrest. Id. at 5. Since the correctional officers were not involved of any of these activities at the time, the district court ruled that the actions were protected by sovereign immunity by the FTCA. Id. at 5-6. The Third Circuit court of appeals summarily affirmed the lower court’s judgment, finding no question to be answered in Millbrook’s appeal. Id. at 6. The Supreme Court granted cert. on Sept. 25, 2012, revising the questions presented into the single question presented mentioned above. See Millbrook v. U.S. 133 S.Ct. 98 (2012).
The dispute in this case revolves around when the tortious conduct of a federal correctional officer is protected by the sovereign immunity provisions of the Federal Torts Claim Act ("FTCA"), and how the circuit courts should interpret the waiver of sovereign immunity. See Brief for Petitioner, Millbrook at 1-2. Millbrook argues that the FTCA’s language clearly intends to waive sovereign immunity for the intentional torts of law enforcements officials; the language of the FTCA, the legislative history, and precedent does not support limiting the applicability of the waiver to conduct only occurring during an arrest, search or seizure. See Brief for Petitioner at 12-13. On the other hand, the Court’s appointed amicus curiae argues waiver of immunity should turn on the official’s conduct, and a waiver of sovereign immunity should only occur when an official is acting in his or her official capacity while executing searches, seizing property, or making an arrest. See Brief for Respondent at 23. This case will affect when, and in what capacity, law enforcement officials and correction officers can be sued for tortuous conduct.
Striking the Proper Balance
This case fundamentally deals with the delicate constitutional balance between sovereign immunity and government limitation on its own power. See Brief of Amicus Curiae for The Lewisburg Prison Project in Support of Petitioner at 8. The Lewisburg Prison argues that the waiver will allow federal courts to enforce the law against federal employees and effectively act as a check against the reach of the Executive Branch. Id. at 9–10. While issues of sovereign immunity are often resolved in favor of the government, it is also important to be sure to strike the proper balance between government power and an application of sovereign immunity that would undermine the very purpose of statutory protections. See Brief for Lambda Legal Defense and Education Fund, Inc. as Amici Curiae in Support of Petitioner, at 10-11. Here, the FTCA was put into place to protect the government from liability for the torts of its employees, but the statute was also created to provide injured plaintiffs with a way to collect from the government. See id. at 11. As Lambda mentions in their amicus brief, the reason for the waiver of sovereign immunity for certain enumerated intentional torts of federal law enforcement officers was to protect the citizenry from tyranny or harm from these officers who are in a position of power. See id. at 11. One potential negative effect of the Third Circuit's reading of the statute is that it largely frustrates this purpose, preventing alleged victims of a remedy. See id. at 11-12.
Protecting Vulnerable Prisoners' Access to the Courts
Most significantly in this case, the proper balance and restrictions on government power are especially important for the federal prison population, who are acutely vulnerable to abuses of power. Amicus Curiae for the Lewisburg Prison Project documents the systemic failings of policies banning abuse in prison, and the commonplace nature of physical beatings, injuries, and sexual abuse. See Brief of Amicus Curiae for The Lewisburg Prison Project in Support of Petitioner at 4-6. The Lewisburg Prison Project notes that although there are federal prison policies designed to protect the prisoners, the FTCA is still critical to protecting prisoners from sexual abuse. Id. at 7–8. Moreover, Lewisburg points out that the United States has a duty to protect prisoners, and a narrow interpretation of the FTCA waiver may undermine equality to all. Id. at 9. Similarly, Lambda highlights that reading the FTCA too narrowly may eliminate the only remedy for prisoners when it comes to a law enforcement officer’s torts. See Brief for Lambda Legal Defense and Education Fund, Inc. as Amici Curiae in Support of Petitioner, at 12-13. Due to the well-publicized and documented nature of prison abuse, Lambda argues that a reading of the FTCA that provides less immunity is also likely to provide positive and favorable incentives and act as a deterrent from sexual assault and abuse of inmates. See id. at 15.
The Supreme Court’s ruling will address a dispute among the federal circuit courts over the interpretation of the Federal Torts Claim Act ("FTCA"). See Brief for Petitioner, Millbrook at 1. In particular, the ruling will address whether the United States waives sovereign immunity when its law enforcement officers commit intentional torts. See id.at 1-3. While the plain language of the relevant statute would appear to answer this question in the affirmative, the Third Circuit has restricted waiver to scenarios where the intentional tort was committed by a law enforcement officer in the course of a search, seizure, or arrest. See id.at 3-4. The parties’ dispute turns on whether the statutory language waiving sovereign immunity for law enforcement officials who commit torts is restricted to a status- or conduct-based reading.
Millbrook argues that the plain language of the FTCA, its legislative history, and court precedent proves that any tort committed by a law enforcement official waives sovereign immunity for the United States. See Brief for Petitioner at 12-13. The relevant statutory language is at 28 U.S.C. § 2680(h), which provides that “with regard to acts or omissions of investigative or law enforcement officers of the United States Government,” sovereign immunity does not apply for “any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” See id.at 11. Millbrook leans heavily on this plain language in arguing that there are only two requirements for waiver: that one of the intentional torts is committed and that a law enforcement officer committed that tort. See id.at 13. Millbrook highlights rules of statutory construction, citing prior precedent like Dolan v. Postal Service in support of his argument that exceptions to sovereign immunity in the context of FTCA are meant to be generally construed and that to interpret otherwise would go against the purpose of statutes like these that grant waiver. See id.at 13-14. Millbrook next focuses on the precise meaning of “any,” noting that the word is broad in scope and signals congressional intent for the statute to be read expansively. See id.at 15-16.
Turning to what exactly constitutes a law enforcement official, the FTCA provides this language: “[f]or the purpose of this subsection, ‘investigative or law enforcement officer’ means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” See Brief for Petitioner at 17. Millbrook emphasizes that this definition refers to a class of individuals and not a type of conduct. See id.Millbrook provides an alternate formulation of the statute demonstrating that Congress could have emphasized conduct over status had they intended a different interpretation. See id.Millbrook goes on to cite Hibbs v. Winn for the proposition that a statute should be read so as not to render other portions of it meaningless. See id.at 18. With this proposition in mind, Millbrook notes that it would be an absurd scenario to imagine where two of the enumerated torts, malicious prosecution and abuse of process, could be committed during the course of an arrest, search, or seizure. See id.at 18-19. Millbrook argues that search, seizure, and arrest occur prior to indictment, so it is difficult to understand how a post-indictment tort could be committed during this stage. See id. at 20.
Millbrook next contends that legislative history confirms the plain language of the FTCA. See Brief for Petitioner at 25. Millbrook cites a Senate Report from when the FTCA was amended in the 1970s for the purpose of waiving sovereign immunity for torts committed by law enforcement officials acting within their scope of employment. See id.at 27. In particular, Millbrook highlights this language: “the Committee’s amendment should not be viewed as limited to constitutional tort situations but would apply to any case in which a Federal law enforcement agent committed the tort while acting within the scope of his employment or under color of federal law.” See id.
Millbrook then cites to prior Supreme Court dicta in Carlson v. Green. See Brief for Petitioner at 28. That case dealt with the death of a prisoner caused by the alleged failure of a prison guard to provide adequate medical care. See id.at 28-29. The Supreme Court found there to be a valid cause of action for a FTCA suit and expressed no concern that this alleged tort did not occur in the course of a search, seizure, or arrest. See id.at 29.
The United States filed a brief in support of reversal of the judgment below, making similar arguments as Millbrook. The United States argues for a status-based reading of the law enforcement official proviso, noting that the Third Circuit’s reading is unduly narrow. See Brief for the United States Supporting Reversal and Remand at 21. In addition, Congress did not limit the types of acts or omissions law enforcement officials can commit in order for sovereign immunity to be waived, indicating intent for the statute to be read broadly. See id.at 22.
Court-appointed amicus curiae argue as respondent in this case for a narrower reading of the FTCA. Respondent contends that whether sovereign immunity is waived due to a tort committed by a law enforcement official should turn on the conduct of that official, not simply his or her status as a law enforcement official. See Brief of Court Appointed Amicus Curia In Support of the Judgment Below (“Brief for Respondent”) at 10. Specifically, respondent emphasizes the presence of an implied caveat—that the statutory of language of “acts or omissions of an investigative or law enforcement official” presumes that they are acting in such a capacity. See id. Respondent analogizes the truism that prosecutors enjoy absolute liability to this situation: it is assumed they are acting in a prosecutorial fashion when they are free from liability. See id.at 10-11. They do not enjoy absolute liability because of their status as prosecutors. See id.at 11.
Respondent highlights two absurd results should Petitioner’s reading of the FTCA prevail. See Brief for Respondent at 13. First, this would mean investigative or law enforcement officials would trigger U.S. liability for intentional torts committed in the workplace, which is not the case for other federal employees. See id.at 13. Respondent argues that Congress did not intend to create this artificial divide between investigative or law enforcement officials and all other federal employees. See id.at 13-15. Respondent goes on to emphasize that taxpayers would become liable for torts committed by countless numbers of federal employees who by virtue of their status carry some investigative or law enforcement capacity. See id.at 17. For example, judges and all persons employed in the Forest Services are authorized to make arrests. See id.at 17. According to Respondent, this list is drastically expanded when one considers how many federal employees have the power to conduct searches, be it for compliance with regulations or administrative convenience. See id.at 21. Like Petitioner’s plain language reading of “any claim” in the relevant statutory text, Respondent advances a plain language reading of “investigative or law enforcement official” to contend that Congress could not have intended such a broad reading. See id.at 23.
Respondent next turns to legislative history, arguing that Congress believed itself to be waiving sovereign immunity for the government only in those scenarios where investigative or law enforcement officials were acting in their capacity as such. See Brief for Respondent at 26-27. Respondent contends that the Senate Report language quoted by Petitioner is out of context and argues that the correct reading of the statement is that common law torts, not just constitutional violations, are captured by the amendment as well. See id.Respondent also points to the absence of discussion of the possibility that this amendment would open the government to a wide array of claims based on the above two absurd situations, noting it is likely that no member of Congress thought the amendment would be read so widely. See id.at 29.
Respondent cites to other circuit courts that have supported the narrower reading of the FTCA. In particular, Respondent uses Orsay v. U.S. Dep’t of Justice from the Ninth Circuit and Ignacio v. United States from the Fourth Circuit to credit this argument. See Brief for Respondent at 30. Respondent also cites to prior cases where the government has attempted to limit the proviso in question to law enforcement activity rather than the broad reading it puts forth in its brief for this case. See id.at 33. Respondent concludes that the Third Circuit’s reading was not fashioned out of whole cloth as Petitioner would have the Supreme Court believe. See id.at 34.
Respondent next addresses the argument advanced by Petitioner that search, seizure, or arrest are pre-indictment activities that do not cover the enumerated post-indictment torts of abuse of process and malicious prosecution. Respondent emphasizes that, in abuse of process cases, investigative or law enforcement officials can abuse search and arrest warrants. See Brief for Respondent at 37-38. In addition, Respondent contends that malicious prosecution actions can occur incidentally from search, seizure, or arrest, and therefore such torts would be covered by the FTCA. See id.at 40. Respondent ends this line or argument with the simple proposition that exceptions to sovereign immunity should be strictly construed, and because the investigative or law enforcement officials’ conduct occurred outside of the context of a search, seizure, or arrest, the judgment of the lower court should be affirmed. See id.at 42.
Respondent concludes that even should Petitioner’s reading of the relevant FTCA proviso be accepted, under Pennsylvania law, the prison guards were acting outside of their scope of employment, thus preventing any liability to lie with the government. See Brief for Respondent at 57. Assaults of the nature described by Petitioner do not fall into the normal course of employment expected by the government of their employees. See id. 57–58.In addition, no purpose of the Bureau of Prisons was furthered by such an assault. See id.at 58. And finally, Respondent notes that the Sixth Circuit has adopted the position that sexual assault falls outside of the scope of employment of a prison guard. See id. at 59–60.
The Supreme Court’s decision in this case will decide the current split in the Circuit courts as to the scope of the waiver of sovereign immunity for the intentional torts of law enforcement officials. If the Court agrees with Millbrook, correctional officers will be able to be sued for intentional torts during the scope of their employment and will be unable to assert sovereign immunity for their actions under the FTCA. If the Court sides with the respondent, a court-appointed amicus curiae, the FTCA will continue to provide sovereign immunity for law enforcement officers unless their tortious conduct occurs while they are executing searches, seizing evidence, or making an arrest.
- Adam Liptak, New York Times, Time, Pen and Paper, and Now the Ear of the Supreme Court (Oct. 16, 2012).
- Deanne Katz, FindLaw, Supreme Court Grants Prisoner’s Longshot, Handwritten Petition (Oct. 22, 2012).