Millbrook v. United States, No. 11-10362; U.S. Supreme Court; opinion by Thomas, J.; decided March 27, 2013. On certiorari to the U.S. Court of Appeals for the Third Circuit.

The Federal Tort Claims Act (FTCA) waives the government’s sovereign immunity from tort suits, but excepts from that waiver certain intentional torts, 28 U.S.C. § 2680(h). Section 2680(h), in turn, contains 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 executing 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, regardless 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 conclusion. 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." See § 2680(h). And by cross-referencing § 1346(b), the proviso incorporates an additional requirement that the "acts or omissions" occur while the officer is "acting within the scope of his office or employment." See § 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 "investigative or law enforcement officer," which focuses on the status of persons whose conduct may be actionable, not the types of activities that may give rise to a claim. This confirms that Congress intended immunity determinations to depend on a federal officer’s legal authority, not on a particular exercise of that authority. Nor does the proviso 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.