Millbrook v. United States

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MILLBROOK v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 11–10362. Argued February 19, 2013—Decided March 27, 2013

The Federal Tort Claims Act (FTCA) waives the Government’s sover-

eign immunity from tort suits, but excepts from that waiver certain

intentional torts, 28 U. S. C. §2680(h). Section §2680(h), in turn, con-

tains a proviso that extends the waiver of immunity to claims for six

intentional torts, including assault and battery, that are based on the

“acts or omissions” of an “investigative or law enforcement officer”

i.e., a federal officer “who is empowered by law to execute searches, to

seize evidence, or to make arrests.” Petitioner Millbrook, a federal

prisoner, sued the United States under the FTCA, alleging, inter alia,

assault and battery by correctional officers. The District Court

granted the Government summary judgment, and the Third Circuit

affirmed, hewing to its precedent that the “law enforcement proviso”

applies only to tortious conduct that occurs during the course of exe-

cuting a search, seizing evidence, or making an arrest.

Held: The law enforcement proviso extends to law enforcement officers’

acts or omissions that arise within the scope of their employment, re-

gardless of whether the officers are engaged in investigative or law

enforcement activity, or are executing a search, seizing evidence, or

making an arrest. The proviso’s plain language supports this conclu-

sion. On its face, the proviso applies where a claim arises out of one

of six intentional torts and is related to the “acts or omissions” of an

“investigative or law enforcement officer.” §2680(h). And by cross-

referencing §1346(b), the proviso incorporates an additional require-

ment that the “acts or omissions” occur while the officer is “acting

within the scope of his office or employment.” §1346(b)(1). Nothing

in §2680(h)’s text supports further limiting the proviso to conduct

arising out of searches, seizures of evidence, or arrests. The FTCA’s

only reference to those terms is in §2680(h)’s definition of “investiga-

2 MILLBROOK v. UNITED STATES

Syllabus

tive or law enforcement officer,” which focuses on the status of per-

sons whose conduct may be actionable, not the types of activities that

may give rise to a claim. This confirms that Congress intended im-

munity determinations to depend on a federal officer’s legal author-

ity, not on a particular exercise of that authority. Nor does the pro-

viso indicate that a waiver of immunity requires the officer to be

engaged in investigative or law enforcement activity. The text never

uses those terms. Had Congress intended to further narrow the

waiver’s scope, it could have used language to that effect. See Ali v.

Federal Bureau of Prisons, 552 U. S. 214, 227. Pp. 4−8.

477 Fed. Appx. 4, reversed and remanded.

THOMAS, J., delivered the opinion for a unanimous Court.

Cite as: 569 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–10362

_________________

KIM MILLBROOK, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[March 27, 2013]

JUSTICE THOMAS delivered the opinion of the Court.

Petitioner Kim Millbrook, a prisoner in the custody of

the Federal Bureau of Prisons (BOP), alleges that correc-

tional officers sexually assaulted and verbally threatened

him while he was in their custody. Millbrook filed suit

in Federal District Court under the Federal Tort Claims

Act, 28 U. S. C. §§1346(b), 2671–2680 (FTCA or Act),

which waives the Government’s sovereign immunity from

tort suits, including those based on certain intentional torts

committed by federal law enforcement officers, §2680(h).

The District Court dismissed Millbrook’s action, and the

Court of Appeals affirmed. The Court of Appeals held

that, while the FTCA waives the United States’ sovereign

immunity for certain intentional torts by law enforcement

officers, it only does so when the tortious conduct occurs in

the course of executing a search, seizing evidence, or

making an arrest. Petitioner contends that the FTCA’s

waiver is not so limited. We agree and reverse the judg-

ment of the Court of Appeals.1

——————

1 Because no party defends the judgment, we appointed Jeffrey S.

Bucholtz to brief and argue this case, as amicus curiae, in support of

the judgment below. 568 U. S. ___ (2012). Amicus Bucholtz has ably

2 MILLBROOK v. UNITED STATES

Opinion of the Court

I

A

The FTCA “was designed primarily to remove the sover-

eign immunity of the United States from suits in tort.”

Levin v. United States, 568 U. S. ___, ___ (2013) (slip op.,

at 2) (internal quotation marks omitted). The Act gives

federal district courts exclusive jurisdiction over claims

against the United States for “injury or loss of property,

or personal injury or death caused by the negligent or

wrongful act or omission” of a federal employee “acting

within the scope of his office or employment.” 28 U. S. C.

§1346(b)(1). This broad waiver of sovereign immunity is

subject to a number of exceptions set forth in §2680. One

such exception, relating to intentional torts, preserves the

Government’s immunity from suit for “[a]ny claim arising

out of assault, battery, false imprisonment, false arrest,

malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract

rights.” §2680(h). We have referred to §2680(h) as the

“intentional tort exception.” Levin, supra, at ___ (slip op.,

at 2) (internal quotation marks omitted).

In 1974, Congress carved out an exception to §2680(h)’s

preservation of the United States’ sovereign immunity

for intentional torts by adding a proviso covering claims

that arise out of the wrongful conduct of law enforcement

officers. See Act of Mar. 16, 1974, Pub. L. 93–253, §2, 88

Stat. 50. Known as the “law enforcement proviso,” this

provision extends the waiver of sovereign immunity to

claims for six intentional torts, including assault and

battery, that are based on the “acts or omissions of inves-

tigative or law enforcement officers.” §2680(h). The pro-

viso defines “ ‘investigative or law enforcement officer’ ” to

mean “any officer of the United States who is empowered

——————

discharged his assigned responsibilities, and the Court thanks him for

his well-stated arguments.

Cite as: 569 U. S. ____ (2013) 3

Opinion of the Court

by law to execute searches, to seize evidence, or to make

arrests for violations of Federal law.” Ibid.

B

On January 18, 2011, Millbrook filed suit against the

United States under the FTCA, asserting claims of negli-

gence, assault, and battery. In his complaint, Millbrook

alleged that, on March 5, 2010, he was forced to per-

form oral sex on a BOP correctional officer, while another

officer held him in a choke hold and a third officer stood

watch nearby. Millbrook claimed that the officers threat-

ened to kill him if he did not comply with their demands.

Millbrook alleged that he suffered physical injuries as a

result of the incident and, accordingly, sought compensa-

tory damages.

The Government argued that the FTCA did not waive

the United States’ sovereign immunity from suit on

Millbrook’s intentional tort claims, because they fell with-

in the intentional tort exception in §2680(h). The Govern-

ment contended that §2680(h)’s law enforcement proviso

did not save Millbrook’s claims because of the Third Cir-

cuit’s binding precedent in Pooler v. United States, 787

F. 2d 868 (1986), which interpreted the proviso to apply

only to tortious conduct that occurred during the course

of “executing a search, seizing evidence, or making an ar-

rest.” Id., at 872. The District Court agreed and granted

summary judgment for the United States because the

alleged conduct “did not take place during an arrest,

search, or seizure of evidence.” Civ. Action No. 3:11–cv–

00131 (MD Pa., Feb. 16, 2012), App. 96.2 The Third Cir-

cuit affirmed. 477 Fed. Appx. 4, 5–6 (2012) (per curiam).

We granted certiorari, 567 U. S. ___ (2012), to resolve a

Circuit split concerning the circumstances under which

——————

2 The District Court also concluded that Millbrook failed to state an

actionable negligence claim because “it is clear that the alleged assault

and battery was intentional.” App. 96. This issue is not before us.

4 MILLBROOK v. UNITED STATES

Opinion of the Court

intentionally tortious conduct by law enforcement officers

can give rise to an actionable claim under the FTCA.

Compare Pooler, supra; and Orsay v. United States Dept.

of Justice, 289 F. 3d 1125, 1136 (CA9 2002) (law enforce-

ment proviso “reaches only those claims asserting that the

tort occurred in the course of investigative or law enforce-

ment activities” (emphasis added)); with Ignacio v. United

States, 674 F. 3d 252, 256 (CA4 2012) (holding that the

law enforcement proviso “waives immunity whenever an

investigative or law enforcement officer commits one of the

specified intentional torts, regardless of whether the officer

is engaged in investigative or law enforcement activity”

(emphasis added)).

II

The FTCA waives the United States’ sovereign immu-

nity for certain intentional torts committed by law en-

forcement officers. The portion of the Act relevant here

provides:

“The provisions of this chapter and section 1346(b)

of this title shall not apply to—

. . . . .

“(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution,

abuse of process, libel, slander, misrepresentation, de-

ceit, or interference with contract rights: Provided,

That, with regard to acts or omissions of investigative

or law enforcement officers of the United States Gov-

ernment, the provisions of this chapter and section

1346(b) of this title shall apply to any claim arising

. . . out of assault, battery, false imprisonment, false

arrest, abuse of process, or malicious prosecution.” 28

U. S. C. §2680(h).

On its face, the law enforcement proviso applies where a

claim both arises out of one of the proviso’s six intentional

Cite as: 569 U. S. ____ (2013) 5

Opinion of the Court

torts, and is related to the “acts or omissions” of an “inves-

tigative or law enforcement officer.” The proviso’s cross-

reference to §1346(b) incorporates an additional require-

ment that the acts or omissions giving rise to the claim

occur while the officer is “acting within the scope of his

office or employment.” §1346(b)(1). The question in this

case is whether the FTCA further limits the category

of “acts or omissions” that trigger the United States’

liability.3

The plain language of the law enforcement proviso

answers when a law enforcement officer’s “acts or omis-

sions” may give rise to an actionable tort claim under the

FTCA. The proviso specifies 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(h),

1346(b)(1). Nothing in the text further qualifies the cate-

gory of “acts or omissions” that may trigger FTCA liability.

A number of lower courts have nevertheless read into

the text additional limitations designed to narrow the

scope of the law enforcement proviso. The Ninth Circuit,

for instance, held that the law enforcement proviso does

not apply unless the tort was “committed in the course of

investigative or law enforcement activities.” Orsay, supra,

at 1135. As noted, the Third Circuit construed the law

enforcement proviso even more narrowly in holding that it

applies only to tortious conduct by federal officers during

the course of “executing a search, seizing evidence, or

making an arrest.” Pooler, 787 F. 2d, at 872. Court-

——————

3 The Government conceded in the proceedings below that the correc-

tional officer whose alleged conduct is at issue was acting within the

scope of his employment and that the named correctional officers

qualify as “investigative or law enforcement officers” within the mean-

ing of the FTCA. App. 54–55, 84–85; Brief for United States 30.

Accordingly, we express no opinion on either of these issues.

6 MILLBROOK v. UNITED STATES

Opinion of the Court

appointed amicus curiae (Amicus) similarly asks us to

construe the proviso to waive “sovereign immunity only for

torts committed by federal officers acting in their capacity

as ‘investigative or law enforcement officers.’ ” Brief for

Amicus 5. Under this approach, the conduct of federal

officers would be actionable only when it “aris[es] out of

searches, seizures of evidence, arrests, and closely related

exercises of investigative or law-enforcement authority.”

Ibid.

None of these interpretations finds any support in the

text of the statute. The FTCA’s only reference to “searches,”

“seiz[ures of ] evidence,” and “arrests” is found in the

statutory definition of “investigative or law enforcement

officer.” §2680(h) (defining “ ‘investigative or law enforce-

ment officer’ ” to mean any federal officer who is “empow-

ered by law to execute searches, to seize evidence, or to

make arrests for violations of Federal law”). By its terms,

this provision focuses on the status of persons whose con-

duct may be actionable, not the types of activities that

may give rise to a tort claim against the United States.

The proviso thus distinguishes between the acts for which

immunity is waived (e.g., assault and battery), and the

class of persons whose acts may give rise to an actionable

FTCA claim. The plain text confirms that Congress in-

tended immunity determinations to depend on a federal

officer’s legal authority, not on a particular exercise of that

authority. Consequently, there is no basis for concluding

that a law enforcement officer’s intentional tort must oc-

cur in the course of executing a search, seizing evidence,

or making an arrest in order to subject the United States

to liability.

Nor does the text of the proviso provide any indication

that the officer must be engaged in “investigative or law

enforcement activity.” Indeed, the text never uses the

term. Amicus contends that we should read the reference

to “investigative or law-enforcement officer” as implicitly

Cite as: 569 U. S. ____ (2013) 7

Opinion of the Court

limiting the proviso to claims arising from actions taken

in an officer’s investigative or law enforcement capacity.

But there is no basis for so limiting the term when Con-

gress has spoken directly to the circumstances in which a

law enforcement officer’s conduct may expose the United

States to tort liability. Under the proviso, an intentional

tort is not actionable unless it occurs while the law en-

forcement officer is “acting within the scope of his office or

employment.” §§2680(h), 1346(b)(1). Had Congress in-

tended to further narrow the scope of the proviso, Con-

gress 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).

Congress adopted similar limitations in neighboring provi-

sions, see §2680(a) (referring to “[a]ny claim based upon

an act or omission of an employee of the Government . . .

in the execution of a statute or regulation” (emphasis

added)), but did not do so here. We, therefore, decline to

read such a limitation into unambiguous text. Jimenez v.

Quarterman, 555 U. S. 113, 118 (2009) (“[W]hen the statu-

tory language is plain, we must enforce it according to its

terms”); Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450

(2002) (“The inquiry ceases if the statutory language is

unambiguous and the statutory scheme is coherent and

consistent” (internal quotation marks omitted)).

* * *

We hold that the waiver effected by the law enforcement

proviso extends to acts or omissions of law enforcement

officers that arise within the scope of their employment,

regardless of whether the officers are engaged in investi-

gative or law enforcement activity, or are executing a

search, seizing evidence, or making an arrest. Accord-

ingly, we reverse the judgment of the Court of Appeals and

remand the case for further proceedings consistent with

8 MILLBROOK v. UNITED STATES

Opinion of the Court

this opinion.

It is so ordered.