Breaking News

Argument preview: Examining the scope of the federal government’s liability for law enforcement abuses

On Tuesday, the Court will hear oral argument in Millbrook v. United States.  At issue in the case is the scope of a provision of the Federal Tort Claims Act that permits suits against the federal government for torts committed by federal law enforcement officers.  Specifically, the question is whether the statute allows a prison inmate to sue the government for an alleged sexual assault committed by guards at a federal prison.


No one disputes that if Millbrook was sexually assaulted by a federal prison guard, his constitutional rights were violated.  The question in the case is whether the federal government can be held liable for that violation by its employees.  Ordinarily, the government is immune from suit for even the most egregious conduct of its agents.  But Congress waived the government’s immunity to a significant degree in the Federal Tort Claims Act (FTCA), which generally waives immunity for any negligent or wrongful act committed by a federal employee acting within the scope of his employment.  So that would seem to allow Millbrook’s suit for an assault by a guard.  But there is an exception – there is no waiver for certain intentional torts, including assault and battery.  So Millbrook would seem to be out of luck, given that sexual assault is a kind of assault.  But there is an exception to the exception – the so-called “law enforcement proviso” allows suit for “any claim” of “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” arising out of the acts of federal “investigative or law enforcement officers.”

The question in this case is whether that proviso saves Millbrook’s suit.  The Third Circuit held that it did not.  The court of appeals did not question that prison guards count as “investigative or law enforcement officers.”  But it read the proviso narrowly, to permit suit only when the assault occurs while the officer is “executing a search, seizing evidence, or making an arrest.”  Because the prison guards in this case were doing none of those things, the law enforcement proviso did not apply, and the federal government’s immunity remained intact.

The cert. petition

Millbrook filed a pro se (i.e., without a lawyer), in forma pauperis petition (i.e., a petition filed without having to pay the filing fee because of indigency).  The Court grants only a handful of pauper petitions every year, and only a few of those are petitions by prisoners.  Most of the time, the few pauper petitions that do get granted are filed by an attorney – for example, a public defender or a public interest organization whose client is indigent.   So the success rate for “triple P” petitioners (pro se, pauper, prisoner) is vanishingly small.

The government opposed the petition, arguing that the specific challenges that Millbrook raised did not warrant review.  However, in the course of its opposition, the government noted that the decision also implicated a circuit conflict over the scope of the law enforcement proviso.  That conflict, the government observed, might someday warrant review, but this case was not in any event an appropriate vehicle for resolving the conflict because Millbrook had not litigated the case in a way that squarely presented the question.

The Court nonetheless granted certiorari and rewrote the question presented to address the circuit conflict the government had identified.  That was unexpected enough.  The case took a further unusual turn when the government then announced that it would not defend the judgment below because it agreed with Millbrook that the Third Circuit’s interpretation of the law enforcement proviso was wrong.

That led the Court to appoint lawyers to argue both sides of the case.  The Court appointed Christopher Paolella, of Reigh & Paolella, to represent Mr. Millbrook.  And it appointed another lawyer, Jeffrey S. Bucholtz, of King and Spalding, as an amicus – that is, friend of the court – to defend the Third Circuit’s decision.

The arguments

Millbrook’s appointed counsel and the federal government argue that the court of appeals construed the law enforcement proviso too narrowly.  In their view, the proviso requires only that the person committing the assault fit within the definition of a “investigative or law enforcement officer.”  The statute does not also require that the officer be conducting a search, seizure, or arrest at the time of the assault.  Congress chose to define the scope of the waiver by the type of employee, not the type of activity the officer was engaged in.  For that reason, they argue, the Court should also reject the interpretation offered by some other courts, which require that assault arise during the course of “investigative or law enforcement activities.”  By its terms, the proviso permits “any claim” arising from the conduct of law enforcement officers.  The courts are not free to engraft a limitation on the type of claims permitted by limiting the proviso to only some activities of law enforcement officers.

The Court-appointed amicus disagrees.  He notes that the Court generally construes waivers of sovereign immunity very strictly.  That, he says, sets a low bar – so long as the lower court’s narrow reading is “plausible,” it should be affirmed.  And a conduct-based reading is more than plausible – to say that someone is acting as a law enforcement officer normally implies that he is acting in that capacity, engaging in law enforcement activities at the relevant time.  And a broader reading would have anomalous results – if a fight broke out between employees in the break room of a federal prison, someone punched by a prison guard could sue the federal government for damages, but someone punched by a maintenance worker could not, even though neither employee was acting in a law enforcement capacity at the time of the fight.  Indeed, the amicus argues that the consequences of the argument advanced by Millbrook and the government is so absurd that the Court should reject it even if it were seemingly compelled by the text.

Finally, the amicus argues that if the Court rejects the Third Circuit’s limited reading of the law enforcement proviso, the Court could still affirm on the alternative ground that the guards were not acting within the scope of their employment when they sexually assaulted Millbrook.  The amicus acknowledges that the court of appeals did not decide the case on that ground, and that the government has not made the scope of employment argument.  (Indeed, the government has conceded that the guards were acting within the scope of their employment.)  But the Court can affirm on any ground apparent in the record and, the amicus argues, the scope of employment issue is jurisdictional (and therefore cannot be waived by the government’s failure to raise it) because it is a condition of the government’s waiver of its sovereign immunity.


Court-appointed amici usually have a tough assignment in the Supreme Court.  The federal government rarely confesses error or refuses to defend a lower court decision in its favor.  When it does, it is usually a pretty good sign that the decision below is on shaky grounds.  Hence, it is not surprising that the amicus in this case also defended the judgment below on an alternative ground.  Indeed, I believe it is a relatively common practice for Court-appointed amici.

That raises an interesting question in my mind regarding the scope of a court-appointed amicus’s responsibility.  The order of appointment invites the amicus to file a brief “in support of the judgment below.”  So the assignment is not limited to addressing the question upon which the court granted certiorari.  And given the responsibility for defending the “judgment” – which is generally understood to mean the outcome, not just the reasoning – it seems fair game for the amicus to seek out alternative grounds for affirmance, particularly when prospects for winning on the Question Presented may seem low.

At the same time, the purpose of the appointment is to provide the Court robust briefing on the question the Court granted certiorari to decide.  And the Court rarely reaches alternative grounds for affirmance, given that it is unlikely that the issue would independently warrant the Court’s review; in this case, for example, the amicus does not claim that there is a circuit split over the scope of employment issue.  The Court’s reticence to reach alternate ground arguments may also reflect a recognition that often the alternative ground is not fully briefed – here, for example, petitioner will have to cover it, along with the major issue in the case, within the confines of a short reply brief, and the federal government (which is still technically a respondent in the case, even though it agrees with the petitioner) will not have addressed it at all.  In part because they usually do not succeed, parties who actually are defending the judgment below (including the government in most cases) often choose not to raise alternative grounds for affirmance.    And when they make that choice, the Court does not appoint amici to argue the alternate grounds the respondent has declined to advance.

So to the extent that a Court-appointed amicus is intended to act as a substitute for a normal respondent, and to ensure full briefing on the question presented, there would seem to be no reason for the amicus to go out of his way to defend the judgment below on alternate grounds.  (This case might be unusual, in that the amicus asserts that the scope of employment question goes to jurisdiction, although that is a very debatable assertion.)  Nonetheless, given the specific wording the Court uses in appointing such amici, and the amicus’s natural desire to win what is often his or her first case in the Supreme Court, it is unsurprising that amici often go the extra mile to defend the judgment below.

Recommended Citation: Kevin Russell, Argument preview: Examining the scope of the federal government’s liability for law enforcement abuses, SCOTUSblog (Feb. 15, 2013, 4:26 PM),