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Millbrook v. US: Will SCOTUS Expand FTCA Recovery?

By Robyn Hagan Cain on February 11, 2013 | Last updated on March 21, 2019

We've all heard the phrase "Justice is blind." While many of us question whether that adage is as true in practice as it is in theory, certain cases make us realize that the law can be blind to the bright line distinction between right and wrong.

For example, if a prisoner is sexually assaulted by prison guards, shouldn't he be able to hold the government accountable? Last year, the Third Circuit Court of Appeals concluded that, if the assault didn't occur during an arrest, search, or seizure, such a claim wasn't cognizable.

Next week, the Supreme Court will review the matter to decide whether the Federal Tort Claims Act (FTCA) waives sovereign immunity for the intentional torts of prison guards when they are acting within the scope of their employment, but not exercising authority to "execute searches, to seize evidence, or to make arrests for violations of federal law."

Lambda Legal explains the allegations behind the claim:

Following a sexual assault by a prison staff member and threats against him, Kim Millbrook was transferred in March 2010 from the federal prison in Terre Haute, Ind., to another facility in Lewisburg, Pa., according to court papers filed by him. He claims that after he told Lewisburg prison authorities of his history and need for protection, he was placed with violent cellmates who attacked him within days of his arrival. Millbrook claims that an officer brought him to an underground area outside the range of security cameras, where one officer held him in a chokehold and another forced Millbrook to perform oral sex, while a third stood watch. The officers threatened to kill him if he told anyone of the assault, he says.

Millbrook sued the government, but the district court and the Third Circuit Court of Appeals agreed that Millbrook's suit was barred under the FTCA.

In rejecting Millbrook's "troubling" claims, the Third Circuit wrote that the U.S. is generally not liable for intentional torts of its employees under the FTCA, except for certain intentional torts committed by investigative or law enforcement officers. Since its 1986 ruling in Pooler v. U.S, the appellate court has limited claims that arise under 28 U.S.C. §2680(h) to cases in which an intentional tort is committed by a law enforcement or investigative officer while executing a search, seizing evidence, or making arrests for violations of federal law.

Though the feds initially argued that Millbrook was not entitled to recovery, the Solicitor General's office has since changed its tune. SCOTUSblog reports that Solicitor General Donald B. Verrilli, Jr., informed the Court in December that the government will argue that the Third Circuit's decision should be reversed. (King & Spaulding partner Jeffrey S. Bucholtz has been appointed to defend the Third Circuit's ruling.)

Justice may be blind, but maybe nine justices will be able to see a remedy for Millbrook.

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