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Argument recap: Trying to make the text make sense

On Tuesday, the Court heard oral argument in Millbrook v. United States.  As I explained in my preview of the case, the case involves the scope of the so-called “law enforcement proviso” to the Federal Tort Claims Act.  The proviso permits suits against the federal government for assaults committed by federal “investigative or law enforcement officers” committed while the officer was acting within the scope of his employment.  The question before the Court in Millbrook was whether the proviso applies to prison guards who allegedly raped the plaintiff while he was incarcerated in a federal prison.

The argument

Attorney Christopher J. Paolella, appointed by the Court to represent Mr. Millbrook, began his argument by asserting that the plain language of the provision encompassed all the activities (within the scope of employment) of any person who qualifies as a “law enforcement officer,” even if the person was not acting in a law enforcement capacity at the time of the assault.  The Justices’ questioning focused on two unappetizing aspects of such a broad rule.

The first problem arises from the broad range of federal officials who might be considered law enforcement officials.  Justice Ginsburg asked whether a meat inspector would count?  How about a park ranger who sometimes enforces park laws, and other times leads tours, asked Justice Sotomayor.  Paolella answered that the word “officer” could be read to restrict the scope of the statute to those who conduct what are traditionally seen as law enforcement activities, something akin to a police officer.  So that might exclude the meat inspector.  But the fact that an official sometimes engages in activities unrelated to law enforcement would not exclude him from the scope of the proviso.

Second, several Justices wondered why Congress would have wanted to expose the federal government for liability under a “law enforcement” proviso for conduct that may have had nothing to do with law enforcement.  Justice Scalia pointed out that the proviso only opens the government to liability for certain kinds of misconduct – such as assault, abuse of process, and false arrest – all of which seem related to traditional law enforcement activities.  Didn’t that show that Congress intended the proviso to extend only to the extent an officer was engaged in law enforcement activities?  Paolella responded that it did not.  In the proviso, Congress chose to draw the line with a classification that depends on the overall job of the officer; Congress elsewhere limited the kind of conduct that could give rise to liability, restricting the government’s exposure to abuses that happened while the officer was acting within the scope of his employment.

Justice Ginsburg asked whether, in light of the scope of employment requirement, the question before the Court wasn’t academic.  How could a sexual assault fall within the scope of a prison guard’s employment?  Paolella pointed out that the government conceded below that the guards were acting within the scope of their employment, and that the scope of employment question was a question of state law that could vary depending on where the assault occurred.  Some states have very broad scope of employment rules.  For example, California courts have held that assaults by prison guards are within the scope of employment.

Assistant to the Solicitor General Anthony Yang represented the federal government, which sided with Millbrook on the legal question before the Court.   He was immediately asked by Justice Kagan for an example of misconduct that would fall within an officer’s scope of employment, but would not be a law enforcement activity.  In other words, she suggested, doesn’t the scope of employment limitation effectively limit the government’s liability to law enforcement activities anyway?  Yang pointed out, again, that scope of employment varies from state to state, and that it would also be difficult to say with certainty what counts as a “law enforcement activity,” because that phrase is not used in the statute or defined anywhere.

Justice Sotomayor wanted to know why prison guards count as “law enforcement” officials in the first place.   After all, they are not investigating crimes or arresting people in the way that police officers do.   If it is enough that they are enforcing federal rules and regulations relating to prison life, does that not mean that all manner of federal officials, including for example customs agents, fall within the proviso as well?  Yang answered that the word “officer” implies criminal law enforcement, so that would exclude park rangers and perhaps customs agents.  He noted that there are not that many officials who spend part of their time doing traditional criminal law enforcement, and the rest doing something different.  The park service, for example, has its own police officers – the park rangers leading the tours do not do that work.

Justice Scalia berated Yang for the government’s change in position, asking him “how long ago was it that the United States took the opposite position?”  Yang answered that although the government had taken a different view in some lower courts, none of those cases had required approval of the government’s position from the Solicitor General.  When the issue did reach that office, the Solicitor General decided that the plain language of the statute could not support the limited interpretation adopted by the court of appeals in this case.

Justice Kennedy acknowledged that there was a “strong textual argument for” the government’s position.  But he worried about the practical consequences.  Wouldn’t that reading open the flood gates of prisoner litigation?  Was there any empirical evidence addressing that question?  Yang said there was not, but noted that there is an array of other defenses the government can raise to prisoner suits, including provisions of the Prison Litigation Reform Act.

Because the government declined to defend the judgment below, the Court appointed an amicus, Jeffrey Bucholtz, to do so.  Justice Ginsburg’s first question, however, asked whether Bucholtz was really defending the Third Circuit rule (which limits liability to cases in which the assault occurred during an arrest, search, or seizure) or instead a somewhat broader rule applied in other circuits (which applies the proviso to cases in which the officer was acting in a “law enforcement capacity”).  Bucholtz said he did not think there was necessarily much difference between the tests, as the Third Circuit presumably intended to encompass activities that are “incident to” arrests, searches, and seizures.

Justice Kagan repeatedly asked Bucholtz why Congress would impose two different conduct limitations – the scope of employment test and the “acting in a law enforcement capacity” test Bucholtz was proposing.  Bucholtz said that the additional requirement was a natural reading of the text – when one speaks of law enforcement officials, one imagines them acting in their law enforcement capacity.  He pointed to the Court’s decision in Lane v. Pena, in which the Court read the Rehabilitation Act’s waiver of sovereign immunity for federal funding agencies to apply only to the agency’s funding activities, not to everything the agency did.  He also pointed out that the scope of employment limitation varies with state law; Congress would have wanted a firm, uniform federal law limitation on the government’s liability as well.

Justice Breyer wanted to know how Bucholtz’s rule would apply to prison guards.  Bucholtz said that most of what prison guards do would not be covered by the proviso.  While guards can conduct law enforcement activities on rare occasions (for example, arresting an escaped inmate), their day-to-day duties of supervising inmates would not count as law enforcement activities.  Justices Breyer, Ginsburg, Kennedy, and Sotomayor all seemed skeptical.  Guards are enforcing prison rules, which are often codified in federal regulations, as well as conducting searches and physically restraining inmates.  That seemed like law enforcement to some Justices.

Towards the end of the argument, Justice Kagan asked Bucholtz for a definition of what it means to be acting in a law enforcement capacity.  Although he resisted a simple formulation, Bucholtz seemed to suggest that the definition would include the three basic activities identified by the Third Circuit – arrest, search, or seizure – as well as activities incident thereto.

In his rebuttal, Paolella noted that the rule which Millbrook is advancing has been the rule in most circuits for forty years and has not resulted in a flood of prisoner litigation against the government.  And, in any event, the line petitioner drew was compelled by the text.  Even if one could make arguments that a different line would make more sense as a matter of policy, the Court was compelled to respect the line Congress drew.


Advocates in the Supreme Court often end up having either a strong textual argument, or a strong policy argument, but not both.  At the oral argument in this case, there was a sense that the Justices believed that Millbrook and the government had the easier argument on the text, but that it led to a waiver considerably broader than makes sense, thereby drawing into question whether Congress really meant what it seemed to say.  The government has tried to limit the seemingly counterintuitive results of its reading of the text by arguing that the word “officer” establishes some limitation (excluding, for example, meat inspectors).  But that is at best a partial solution.  Some of the Justices explored whether the separate “scope of employment” limitation might take up some of the slack, but the strength of that limitation turns on state law, which is beyond the Justices’ control.

The court-appointed amicus, on the other hand, had an argument that the Justices may think makes good policy sense, but requires reading the text of the statute against the grain.  But he pointed out that the Court has sometimes done just that in reading waivers of sovereign immunity.

The outcome will likely depend on whether the Justices think the amicus’s proposed reading stretches the language too far, and whether Millbrook and the government have sufficiently allayed the Court’s practical concerns about the real world implications of their broader reading of the waiver provision.

Recommended Citation: Kevin Russell, Argument recap: Trying to make the text make sense, SCOTUSblog (Feb. 20, 2013, 12:24 PM),