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SCOTUS Reverses Third Circuit in Comcast, Millbrook

By Robyn Hagan Cain on March 27, 2013 | Last updated on March 21, 2019

The Supreme Court decided this week that the Third Circuit Court of Appeals is all kinds of wrong.

Wednesday, the Court issued two opinions reversing earlier Third Circuit rulings: Millbrook v. U.S. and Comcast Corp et al v. Behrend.

The first case, Millbrook, garnered a fair amount of attention when the Court granted certiorari in October because petitioner Kim Millbrook actually submitted a handwritten petition to the Court. That move paid off, since he has now won his Federal Tort Claims Act appeal.

Millbrook claims that he was sexually assaulted by prison guards while serving time, and has been trying to sue the guards under the FTCA. The district court and the Third Circuit Court of Appeals agreed that Millbrook's suit was barred under the Act.

The question before the Court was whether the 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." In a unanimous decision, the Court concluded that the FTCA's 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.

That means Millbrook can sue after all.

Though Millbrook won before the Nine, he probably won't be as lucky at trial. The New York Times explains that Millbrook is known as a frequent litigant, prone to making statements in court filings like "I am a sovereign, and cannot be the subject of any law." (Not exactly the most sympathetic -- or credible -- plaintiff.)

In a second opinion on Wednesday, the Court ruled that a group of Philadelphia-area Comcast customers cannot bring a federal antitrust class action suit against Comcast because the "class" didn't satisfy the FRCP Rule 23 certification requirements.

The customers allege that Comcast's clustering strategy inflated the company's fees and limited competition.

Under Rule 23(b)(3), a certifying court must find that "the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Justice Antonin Scalia, writing for the 5-4 majority, found that the plaintiffs' interests and injuries weren't sufficiently aligned to warrant class certification.

Justice Scalia explained, "In light of the [damages] model's inability to bridge the differences between supra-competitive prices in general and supra-competitive prices attributable to the deterrence of overbuilding, Rule 23(b)(3) cannot authorize treating subscribers within the Philadelphia cluster as members of a single class."

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