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The government switches position (UPDATED)

UPDATE 6:09 pm:  The Solicitor General’s brief on the merits in this case, urging reversal of the Third Circuit decision, was filed last Friday, and is now available here.


The Supreme Court, told by the federal government that it is changing its position on a prison sexual assault case, on Monday named a neutral lawyer to take on the defense of a lower-court ruling in that case.   In a letter last month to the Court, Solicitor General Donald B. Verrilli, Jr., said that because the government now believes that the U.S. Court of Appeals for the Third Circuit was wrong in the case of Millbrook v. United States (docket 11-10362), it will file a brief urging that the ruling be overturned.  In situations like that, the Court customarily will name a lawyer as amicus to argue the abandoned side of a case.  It chose a Washington lawyer, Jeffrey S. Bucholtz, to do that in this case.

The Millbrook case tests whether the federal government has legal immunity to a claim that federal prison guards sexually assaulted an inmate while they were on duty.   The Solicitor General had urged the Court not to hear the case of Kim Millbrook, who claimed he was forced by guards to perform oral sex on one of them while he was an inmate at the federal prison in Lewisburg, Pennsylvania, in 2010.  Conceding that the lower courts are split on one legal issue about immunity, and that the Court someday might want to review that, the Solicitor General argued that Millbrook’s case was not a proper one to raise that question, and so the Court should deny review.  Even so, the Court agreed to hear the case last September, changing the granted question to the one on which there is a split.  The case apparently will be set for oral argument in February.

Under the Federal Tort Claims Act, the government sometimes can be sued, despite its usual immunity as a sovereign entity, if a government official or employee intentionally engages in wrongdoing while carrying out his official duties.   A federal officer, though, usually retains legal immunity in a case of assault, and some other forms of misconduct.  However, that immunity is lost if the officer committed an assault while carrying out a search, seizing evidence, or making an arrest.   The Third Circuit Court ruled against Millbrook, concluding that the Lewisburg guards’ immunity to an assault remained intact because they were not engaging in one of those law enforcement activities at the time they allegedly forced him to perform oral sex.   That is the legal point on which the circuit courts are divided.

Millbrook had drafted his own petition asking the Supreme Court to hear his case, but he focused his challenge on a claim that officers at Lewisburg had been negligent, because they had failed to protect him from assault by his guards — a claim rejected by the Third Circuit in its ruling.  The Court did not grant review on that issue, but rather on the scope of officers’ immunity when they are not engaging in a law enforcement activity, but are performing official duties.  They chose New York attorney Christopher J. Paolella to make Millbrook’s argument for him and file the brief challenging the Third Circuit.

In Solicitor General Verrilli’s letter to the Court, he said the Third Circuit was on the wrong side of the division of opinion in the lower courts.  When the government brief is due, he added, it will urge the Court not to embrace the Third Circuit’s view.

It is the Third Circuit’s approach, then, that will be defended in written briefs and oral argument by Washington attorney Bucholtz.  He is a partner in the Washington office of King & Spaulding.  He formerly clerked for Samuel A. Alito, Jr., now a Justice on the Court, when Alito was a judge on the Third Circuit Court.

Recommended Citation: Lyle Denniston, The government switches position (UPDATED), SCOTUSblog (Dec. 3, 2012, 5:00 PM),