MILLBROOK v. UNITED STATES

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 11–10362

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KIM MILLBROOK, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the third circuit

[March 27, 2013]

Justice Thomas delivered the opinion of the Court.

Petitioner Kim Millbrook, a prisoner in the custody of the Federal Bureau of Prisons (BOP), alleges that correctional officers sexually assaulted and verbally threatened him while he was in their custody. Millbrook filed suit in Federal District Court under the Federal Tort Claims Act, 28 U. S. C. §§1346(b), 2671–2680 (FTCA or Act), which waives the Government’s sovereign immunity from tort suits, including those based on certain intentional torts committed by federal law enforcement officers, §2680(h). The District Court dismissed Millbrook’s action, and the Court of Appeals affirmed. The Court of Appeals held that, while the FTCA waives the United States’ sovereign immunity for certain intentional torts by law enforcement officers, it only does so when the tortious conduct occurs in the course of executing a search, seizing evidence, or making an arrest. Petitioner contends that the FTCA’s waiver is not so limited. We agree and reverse the judgment of the Court of Appeals. 1

I A

The FTCA “was designed primarily to remove the sovereign immunity of the United States from suits in tort.” Levin v. United States, 568 U. S. ___, ___ (2013) (slip op., at 2) (internal quotation marks omitted). The Act gives federal district courts exclusive jurisdiction over claims against the United States for “injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission” of a federal employee “acting within the scope of his office or employment.” 28 U. S. C. §1346(b)(1). This broad waiver of sovereign immunity is subject to a number of exceptions set forth in §2680. One such exception, relating to intentional torts, preserves the Government’s immunity from suit for “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” §2680(h). We have referred to §2680(h) as the “intentional tort exception.” Levin, supra, at ___ (slip op., at 2) (internal quotation marks omitted).

In 1974, Congress carved out an exception to §2680(h)’s preservation of the United States’ sovereign immunity for intentional torts by adding a proviso covering claims that arise out of the wrongful conduct of law enforcement officers. See Act of Mar. 16, 1974, Pub. L. 93–253, §2, 88Stat. 50. Known as the “law enforcement proviso,” this provision extends the waiver of sovereign immunity to claims for six intentional torts, including assault and battery, that are based on the “acts or omissions of investigative or law enforcement officers.” §2680(h). The proviso defines “ ‘investigative or law enforcement officer’ ” to mean “any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.” Ibid.

B

On January 18, 2011, Millbrook filed suit against the United States under the FTCA, asserting claims of negligence, assault, and battery. In his complaint, Millbrook alleged that, on March 5, 2010, he was forced to perform oral sex on a BOP correctional officer, while another officer held him in a choke hold and a third officer stood watch nearby. Millbrook claimed that the officers threatened to kill him if he did not comply with their demands. Millbrook alleged that he suffered physical injuries as a result of the incident and, accordingly, sought compensatory damages.

The Government argued that the FTCA did not waive the United States’ sovereign immunity from suit on Millbrook’s intentional tort claims, because they fell within the intentional tort exception in §2680(h). The Government contended that §2680(h)’s law enforcement proviso did not save Millbrook’s claims because of the Third Circuit’s binding precedent in Pooler v. United States, 787 F. 2d 868 (1986), which interpreted the proviso to apply only to tortious conduct that occurred during the course of “executing a search, seizing evidence, or making an arrest.” Id., at 872. The District Court agreed and granted summary judgment for the United States because the alleged conduct “did not take place during an arrest, search, or seizure of evidence.” Civ. Action No. 3:11–cv–00131 (MD Pa., Feb. 16, 2012), App. 96. 2 The Third Circuit affirmed. 477 Fed. Appx. 4, 5–6 (2012) (per curiam).

We granted certiorari, 567 U. S. ___ (2012), to resolve a Circuit split concerning the circumstances under which intentionally tortious conduct by law enforcement officers can give rise to an actionable claim under the FTCA. Compare Pooler, supra; and Orsay v. United States Dept. of Justice, 289 F. 3d 1125, 1136 (CA9 2002) (law enforcement proviso “reaches only those claims asserting that the tort occurred in the course of investigative or law enforcement activities” (emphasis added)); with Ignacio v. United States, 674 F. 3d 252, 256 (CA4 2012) (holding that the law enforcement proviso “waives immunity whenever an investigative or law enforcement officer commits one of the specified intentional torts, regardless of whether the officer is engaged in investigative or law enforcement activity” (emphasis added)).

II

The FTCA waives the United States’ sovereign immunity for certain intentional torts committed by law enforcement officers. The portion of the Act relevant here provides:

“The provisions of this chapter and section 1346(b) of this title shall not apply to—

.     .     .     .     .

“(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” 28 U. S. C. §2680(h).

On its face, the law enforcement proviso applies where a claim both arises out of one of the proviso’s six intentional torts, and is related to the “acts or omissions” of an “investigative or law enforcement officer.” The proviso’s cross-reference to §1346(b) incorporates an additional requirement that the acts or omissions giving rise to the claim occur while the officer is “acting within the scope of his office or employment.” §1346(b)(1). The question in this case is whether the FTCA further limits the category of “acts or omissions” that trigger the United States’ liability. 3

The plain language of the law enforcement proviso answers when a law enforcement officer’s “acts or omissions” may give rise to an actionable tort claim under the FTCA. The proviso specifies that the conduct must arise from one of the six enumerated intentional torts and, by expressly cross-referencing §1346(b), indicates that the law enforcement officer’s “acts or omissions” must fall “within the scope of his office or employment.” §§2680(h), 1346(b)(1). Nothing in the text further qualifies the category of “acts or omissions” that may trigger FTCA liability.

A number of lower courts have nevertheless read into the text additional limitations designed to narrow the scope of the law enforcement proviso. The Ninth Circuit, for instance, held that the law enforcement proviso does not apply unless the tort was “committed in the course of investigative or law enforcement activities.” Orsay, supra, at 1135. As noted, the Third Circuit construed the law enforcement proviso even more narrowly in holding that it applies only to tortious conduct by federal officers during the course of “executing a search, seizing evidence, or making an arrest.” Pooler, 787 F. 2d, at 872. Court-appointed amicus curiae (Amicus) similarly asks us to construe the proviso to waive “sovereign immunity only for torts committed by federal officers acting in their capacity as ‘investigative or law enforcement officers.’ ” Brief for Amicus 5. Under this approach, the conduct of federal officers would be actionable only when it “aris[es] out of searches, seizures of evidence, arrests, and closely related exercises of investigative or law-enforcement authority.” Ibid.

None of these interpretations finds any support in the text of the statute. The FTCA’s only reference to “searches,” “seiz[ures of] evidence,” and “arrests” is found in the statutory definition of “investigative or law enforcement officer.” §2680(h) (defining “ ‘investigative or law enforcement officer’ ” to mean any federal officer who is “empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law”). By its terms, this provision focuses on the status of persons whose conduct may be actionable, not the types of activities that may give rise to a tort claim against the United States. The proviso thus distinguishes between the acts for which immunity is waived (e.g., assault and battery), and the class of persons whose acts may give rise to an actionable FTCA claim. The plain text confirms that Congress intended immunity determinations to depend on a federal officer’s legal authority, not on a particular exercise of that authority. Consequently, there is no basis for concluding that a law enforcement officer’s intentional tort must occur in the course of executing a search, seizing evidence, or making an arrest in order to subject the United States to liability.

Nor does the text of the proviso provide any indication that the officer must be engaged in “investigative or law enforcement activity.” Indeed, the text never uses the term. Amicus contends that we should read the reference to “investigative or law-enforcement officer” as implicitly limiting the proviso to claims arising from actions taken in an officer’s investigative or law enforcement capacity. But there is no basis for so limiting the term when Congress has spoken directly to the circumstances in which a law enforcement officer’s conduct may expose the United States to tort liability. Under the proviso, an intentional tort is not actionable unless it occurs while the law enforcement officer is “acting within the scope of his office or employment.” §§2680(h), 1346(b)(1). Had Congress intended to further narrow the scope of the proviso, Congress could have limited it to claims arising from “acts or omissions of investigative or law enforcement officers acting in a law enforcement or investigative capacity.” See Ali v. Federal Bureau of Prisons, 552 U. S. 214, 227 (2008) . Congress adopted similar limitations in neighboring provisions, see §2680(a) (referring to “[a]ny claim based upon an act or omission of an employee of the Government . . . in the execution of a statute or regulation” (emphasis added)), but did not do so here. We, therefore, decline to read such a limitation into unambiguous text. Jimenez v. Quarterman, 555 U. S. 113, 118 (2009) (“[W]hen the statutory language is plain, we must enforce it according to its terms”); Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002) (“The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent” (internal quotation marks omitted)).

*  *  *

We hold that the waiver effected by the law enforcement proviso extends to acts or omissions of law enforcement officers 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. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

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1  Because no party defends the judgment, we appointed Jeffrey S. Bucholtz to brief and argue this case, as amicus curiae, in support of the judgment below. 568 U. S. ___ (2012). Amicus Bucholtz has ably discharged his assigned responsibilities, and the Court thanks him for his well-stated arguments.

2  The District Court also concluded that Millbrook failed to state an actionable negligence claim because “it is clear that the alleged assault and battery was intentional.” App. 96. This issue is not before us.

3  The Government conceded in the proceedings below that the correctional officer whose alleged conduct is at issue was acting within the scope of his employment and that the named correctional officers qualify as “investigative or law enforcement officers” within the meaning of the FTCA. App. 54–55, 84–85; Brief for United States 30. Accordingly, we express no opinion on either of these issues.

Print this transcript Transcript: 

ORAL ARGUMENT OF CHRISTOPHER J. PAOLELLA, FOR PETITIONER, APPOINTED BY THIS COURT

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-10362, Millbrook v. United States.

Mr. Paolella.

Christopher J. Paolella: Mr. Chief Justice, and may it please the Court:

The plain language of Section 2680(h) is law enforcement provides a waiver of sovereign immunity in clear, precise and unambiguous terms.

It extends the waiver to any claim for one of the six enumerated torts committed by a Federal investigative or law enforcement officer acting within the scope of his or her employment.

And it defines investigative or law enforcement officer as any officer of the United States who is quote, “ empowered by law ”, unquote, to carry out searches, seizures or arrests.

Justice Ruth Bader Ginsburg: Would that include, say, a meat -- a meat inspector?

There is a wide range of Federal employees that have arrest or search or seizure--

Christopher J. Paolella: The proviso doesn't any employee of the United States who is authorized to carry out a search, seizure, or arrest.

It used the term

"any officer of the United States. "

And I believe that the term “ officer ” carries some water here.

If we look at a spectrum of individuals who have powers -- for example, to carry out searches -- we can envision on the one hand very traditional core of law enforcement officers.

Let's take a DEA officer who can carry out arrests, do searches and seizures, is authorized to use force.

At the other end of the spectrum, we have something like a meat inspector or an OSHA inspector, who may have a limited ability to carry out searches, but these are searches that are in really a law enforcement capacity -- an administrative capacity as opposed to a core law enforcement capacity.

So the government raises the argument, and we think it's a plausible interpretation, that by using the term “ officer ” rather than any employee of the United States, that there was some limiting factor imported into the statute, thereby the statute's plain language.

And I would trust my colleague from the Solicitor General's office to map the boundaries of that.

I would say that in any case, a correctional officer, who are the individuals who are involved here in committing the complained-of acts, certainly falls much closer to core law enforcement on that spectrum than to the administrative side.

Justice Anthony Kennedy: As a general matter, first in the States and then in the Federal Government, is a correctional officer or prison guard usually deemed to be a peace officer?

Christopher J. Paolella: The -- yes.

In many States that use the term “ peace officer ” in the statutes defining a peace officer for things -- for example, authorizing the use of force or authorizing the carriage of weapons -- many States -- it's not uniform, but many States include correctional officers within that ambit.

The Federal Government typically does not use the term “ peace officer ” in its statutes, but if you look at Federal statutes that use the term “ law enforcement officer ”, which is the very term that's used in subsection (h), many -- many of those other statutory schemes expressly include correctional officers.

So, for example, for purposes of civil service pay, for purposes of death benefits, of retirement benefits.

Justice Antonin Scalia: That doesn't prove that they're officers.

I mean, that's -- that's not the test for an officer, how much you're paid.

The test is whether you exercise significant authority under the laws of the United States.

That's a pretty fuzzy line, but I'm not sure that a prison guard exercises significant authority under the laws of the United States.

Christopher J. Paolella: I would think in the context of the prison, it's hard to imagine how a prison guard could exercise any more authority than they do.

In addition to their correctional function, prison correctional officers are essentially the police force for the prison.

They are charged with maintaining order, and they're charged with enforcing the laws of the United States within the confines of the prison, and indeed in some specified cases, outside the prison walls.

For example, they are explicitly authorized under Section 3050 of Title 18 of the U.S. Code not just to carry out arrests in prison for violations of Federal law, both by prisoners and visitors, but to carry out arrests outside the prison walls to prevent prisoner escapes or to prevent assaults on other law enforcement officers.

So there's quite expressly an arrest authority granted to correctional officers.

In addition, they have the power to search for contraband, both in the context of visitors to prison and prisoners themselves.

Justice Sonia Sotomayor: Counsel, you've argued something slightly different than I took from your briefs.

Earlier, in response I think to Justice Ginsburg, you were queueing closer to the Solicitor General's position that this has to be limited in some way.

And you said you'll let them establish the boundaries.

I don't want to let them establish the boundaries.

I want you to tell me, is it criminal law enforcement agents, is it law enforcement agents with -- acting -- as the Ninth Circuit says -- acting within a law enforcement activity?

Because I am finding it hard to figure out why we shouldn't permit tort liability on an OSHA inspector, who, in inspecting whatever he or she is inspecting punches someone or does some intentional assaultive act, why they should be permitted to do that.

Assuming it falls within the definition of a law enforcement activity.

Christopher J. Paolella: Justice Sotomayor, let me begin answering that question by making a distinction which I think is an important distinction here, between the definition of status and the definition of the conduct that's implied here.

Because I think this is a crucial difference between the amicus's argument on one hand and the Solicitor General's office on the other hand.

The amicus would limit the type of conduct that's covered by the statute.

They would limit it to actions that occur in a law enforcement capacity.

So I'm not sure exactly what that means.

I think that gets passed along with--

Justice Sonia Sotomayor: I think they're saying is arrests, search and seizure, and whatever the third was.

Christopher J. Paolella: --Or some other similar activities, which, again, I'm not sure addresses the topic--

Justice Sonia Sotomayor: But let's define it more broadly.

Let's assume I was willing to define it to include all of the activities that a law enforcement agent would engage in, including protective services, security services, like your officers.

Christopher J. Paolella: --Yes, Your Honor.

Justice Sonia Sotomayor: Let's assume that we've defined it more broadly.

What's the problem with their position?

Christopher J. Paolella: The problem with their position is -- with the amicus--

Justice Sonia Sotomayor: And of -- yes, with amicus's or the government's, meaning, instead of limiting it to criminal activity, limited to law enforcement activities broadly defined.

Christopher J. Paolella: --The problem with amicus's requirement is that it has no textual basis in the statute.

The statute is very precise.

Justice Antonin Scalia: Well, I will give you -- I'll give you a textual basis.

Why is it if all the statute is concerned about is the status of being a law enforcement -- investigative or law enforcement officer -- why is it that the exception it makes does not eliminate the exemption for libel, slander, misrepresentation, deceit or interference with contract rights?

There is excepted from the provisions of the Tort Claims Act any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abusive process, libel, slander, misrepresentation, deceit or interference with contract rights.

However, for -- for purposes of this exemption from the exemption -- the exception from the exemption, they leave out the latter part.

Why did they only put in the others?

I think the reason they only put in the others is that those are the kind of torts that would be conducted in the course of conducting a -- what's the words -- investigative or law enforcement activity.

Christopher J. Paolella: Well, Your Honor--

Justice Antonin Scalia: The others would not -- would not occur.

Christopher J. Paolella: --I think that that is a limiting factor that is not just implicit but explicit in the statutory text.

Justice Antonin Scalia: Yes, but it's -- it's a limiting factor that -- that shows, that displays an intent to limit the -- the activities of investigative or law enforcement officers to those activities conducted in the course of investigating or enforcing the law.

Christopher J. Paolella: Well, the fact that Congress was so explicit about categorizing precisely the kind of torts that are covered here -- that sort of conduct -- and the fact that Congress was so precise about cross-referencing Section 1346(b), which incorporates of the scope of employment requirement, suggests to me that when Congress wanted to confine the capacity in which the acts occurred, it could do so, and it did in fact do so.

Justice Ruth Bader Ginsburg: --I understand--

Justice Antonin Scalia: Why would it leave out those other ones?

That's what I'm asking you.

What possible reason is there to leave out libel, slander, misrepresentation, deceit, or interference with contract rights?

Christopher J. Paolella: That was the policy judgment that Congress made, that it would not--

Justice Antonin Scalia: I -- I didn't deny that it's the judgment.

What reason could there be for that judgment?

Christopher J. Paolella: --That it didn't think that those sorts of torts in this context -- and I think we all agree this is a law enforcement-oriented provision.

It's called the law enforcement proviso.

Justice Antonin Scalia: I give you a reason.

Christopher J. Paolella: Yes.

Justice Antonin Scalia: The reason -- the reason they left it out is that they don't think those torts would be committed in the course of investigating or enforcing the law.

Christopher J. Paolella: I think that's right, Your Honor, but that doesn't mean that from that we ought to draw an entirely extra-textual additional limitation that goes beyond the specific line that Congress did, in fact, draw here.

Justice Ruth Bader Ginsburg: --Your view is that the limitation is scope of employment.

Christopher J. Paolella: That's right.

Justice Ruth Bader Ginsburg: The scope of employment is, and you don't add on anything else to that.

You don't add arrest, search and seizure.

But does this whole issue have an academic flavor, because how in the world could the conduct involved in this case qualify as within the scope of employment?

Christopher J. Paolella: First of all, Your Honor, I think that the question of scope of employment was something that was conceded below.

It was never litigated.

It was never briefed before the Respondents' brief.

And from my reading of the question presented as this Court formulated it, it was excluded from the question presented.

So I don't think this Court needs to address it.

It's more properly addressed on remand if it's important.

But here I think that there is an argument that's within the scope of employment.

And if you look at cases, for example the Mary M. case out of the California Supreme Court, there the California Supreme Court held that a sexual assault by a law enforcement officer of an individual who was subject to that officer's authority could be held to be within the scope of employment, because an officer is vested with authority and it is reasonably foreseeable that that authority can sometimes be abused if it happens when the officer is in uniform, on job hours, dealing with someone who that individual is authorized to use appropriate force against.

And even in Pennsylvania, you see cases where people do outrageous things, like a private detective shooting a picketing protester, where the Pennsylvania courts have held that that's within the scope of employment.

It's a complicated issue.

It's an issue of State law and it will be different in every State, which is why I would suggest it's more appropriate for this to be handled on remand rather than have a ruling by this Court on a narrow issue of Pennsylvania State law.

But I think it is hardly implausible that Pennsylvania courts would find this within the scope of employment.

Your Honor, if there's no further questions, I will reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Yang.

ORAL ARGUMENT OF ANTHONY A. YANG, FOR RESPONDENT, SUPPORTING REVERSAL AND REMAND

Anthony A. Yang: Mr. Chief Justice and may it please the Court:

The text and structure of the law enforcement proviso in the Federal Tort Claims Act more generally make clear that the proviso unambiguously waives sovereign immunity for claims arising under the six intentional torts listed for acts or omissions of persons qualifying as Federal law enforcement officers while acting within their scope of employment.

Nothing in the statute supports amicus's additional limit, which would require such officers to be acting in a law enforcement capacity or by exercising law enforcement authority, neither of which phrase occurs within the statute itself.

Quite the contrary--

Justice Elena Kagan: What are the kinds of things, Mr. Yang, that would be within the scope of employment, but would not be acting within a law enforcement capacity for a law enforcement officer?

What's the difference between those two standards for a law enforcement officer?

Anthony A. Yang: --Well, this is complicated by the fact that for the Federal Tort Claims Act, scope of employment is a question that turns on State law.

As a result it will vary.

Some States have a rather broad understanding of scope of employment and sometimes in fact will encompass within the scope of employment rather egregious intentional torts.

It's not necessarily what the Court might think of as within the scope of one's Federal law enforcement authority.

So with respect to law enforcement authority, I mean, this -- that makes the question a little more difficult because that is not something that actually appears in the statute and it's not something that the United States embraces as a test because it is a creation of the amicus.

What the statute here does, the only term -- the only place that it uses law enforcement is in the defined term “ investigative or law enforcement officer ” and then what it does in defining that term--

Justice Elena Kagan: But you can't give me just a couple of examples of how the difference would matter, you know, in some States, where something would be -- would meet the scope of employment test, but not meet the acting as a law enforcement officer test, for a law enforcement officer again.

Anthony A. Yang: --Again, acting as a law enforcement officer test is not something that appears in the statute and it's not something that even amicus has tried to meet the limitations of.

It could mean various things.

It could mean, for instance, something as limited as executing a search, seizing evidence or making an arrest.

That would be the Pooler type of rationale.

It could be something incident to that, writing a report, as amicus suggests.

It could be other things.

Law enforcement officers often aren't doing the very things that we're talking about.

They go on patrol, they talk to kids in schools.

There are all types of things that law enforcement officers might do that don't fall within what might thing -- what one might think of as what, you know, you see on television when officers are making contact with the public in rather high stakes incidents.

So it's difficult both because we have a State law term that varies and a term that doesn't even appear in the statute and that we don't embrace.

So again, it's difficult to provide examples in any definitive way because both of the comparators shift depending on what we're talking about.

Justice Ruth Bader Ginsburg: Mr. Yang, even if -- if -- it depends on State law, that's clear.

But does the United States sometimes concede scope of authority so it can represent -- it can be the sole defendant in the case, the individual officer is off the hook, so that the United States could make the argument: It never happened; the officer didn't do what the plaintiff charged?

Anthony A. Yang: I believe, if I understand your question correctly, the answer is yes, but let me qualify that.

This came up in a case called Osborne v. Haley.

And the question about scope of employment for purposes of the Westfall Act turns on whether at the time of the alleged incident the officer, or employee in many cases, was acting within the scope of his or her employment.

Now, when the United States investigates, this is authority that is delegated to the Attorney General, which is in turn redelegated to the U.S. Attorney's offices, investigates the relevant circumstances and determines that the allegations are just false, not correct at all, in fact it never happened, the employee was sitting at his or her desk beavering away at important Federal matters, in that instance, the Government will say that the employee was in fact acting within the scope of his or her employment and can explain that the reason for that is the Government rejects the underlying factual assertion.

That's something that then is litigated if the Plaintiff seeks to challenge the scope determination.

And the Court's decision in Osborne explains that this is how the situation will play out, is that then the merits of the case ultimately condense into a challenge to the scope certification of the Attorney General.

So, no, we don't simply say they were within scope for no reason.

We determine whether they were within scope by evaluating the circumstances at issue and if the alleged circumstances did not occur and the employee was acting within the scope properly, we will certify that the employee was acting within the scope.

Justice Sonia Sotomayor: Could you go back and tell me, yet again -- you give a limiting principle, but I'm not sure how it applies.

You seem to be saying -- do you agree with your -- with the Petitioner that law enforcement officer includes correction officers?

Anthony A. Yang: It does.

Justice Sonia Sotomayor: And why?

Because they have all of those other powers, so how is that different from those in the civil area who have similar powers to arrest, search and seize, to--

Anthony A. Yang: Well, I guess there are two elements to the definition of investigative or law enforcement officer within the statute.

First, they have to be an officer of the United States.

And the term “ officer ” when we are talking about Federal officers, the dictionary definition that most commonly and comfortably applies here, are ones that we're talking about like sheriffs, constables, bailiffs, people who have normal Federal criminal law enforcement -- well, not Federal but criminal law enforcement responsibilities.

That -- you know, when you back out to the second criteria, we think that reinforces--

Justice Sonia Sotomayor: --How about Customs agents?

Anthony A. Yang: --Customs agents?

I don't know if they have criminal -- I believe if we assume that they are simply doing a civil function, Custom agents would not fall within the term “ officer ” as normally applied.

Let me give you an example that the amicus raises, Federal forest employees -- Forest Service employees.

Forest Service employees, the clerks that work in D.C. are not what one would normally think of as an officer, particularly when we are talking about the phrase “ law enforcement officer ”.

Justice Sonia Sotomayor: My problem is park employees I think of as officers when you meet them at the parks.

They are guarding the parks.

Anthony A. Yang: Some, some--

Justice Sonia Sotomayor: Or they may also be giving tours.

They are usually doing sort of a mixture of--

Anthony A. Yang: --Actually, I don't think that is--

Justice Sonia Sotomayor: --duties.

Anthony A. Yang: --that's correct, Your Honor.

The Forest Service, as other park -- the Park Service, has different roles for various individuals within their employ.

And there are, in fact, law enforcement officers in the Park Service, and there are law enforcement officers in the Forest Service, and their duties are what one would traditionally think of as law enforcement.

Justice Antonin Scalia: Mr. Yang, the United States didn't take this position below, right?

Anthony A. Yang: That is correct.

Justice Antonin Scalia: This is a change of heart.

How long ago was it that the United States took the opposite position, the position argued by amicus here?

Anthony A. Yang: Well, this is the Orsay position, which is not the Pooler position I believe the Court is talking about.

Pooler, the Government has not taken the view that the Third Circuit was correct and Pooler, as far as I can tell, except within the Third Circuit, is binding precedent.

Now, when we take a step back and abandon Pooler's limited approach and apply a more amorphous law enforcement capacity, law enforcement authority, the Government has done that in a number of lower cases, including several courts of appeals--

Justice Antonin Scalia: So it couldn't be that obvious, I guess?

Anthony A. Yang: --Well, I think in those cases the Government took a position that never was a position that made it to the Solicitor General's office.

And when we took this -- both in the Reynolds case when there was an adverse decision to the United States and in this case, we determined that the position was not one that could be -- was not correct under the text.

And I think, as amicus's -- amicus does, I think, a valiant job of trying to defend that position, but at the end of the day, there simply is not a textual argument to get to that outcome.

Justice Anthony Kennedy: I think it is true that there is a strong textual argument for your position.

But let me ask this: Are there any studies or any statistics we can look at to see as a predictive matter how many prison suits against the government this ruling that you propose would -- would cause?

It seems to me we have close to 200,000 Federal prisoners, I think, and this prison work, there is a lot of shoving, guards have to break up fights.

So there is going to be any number of instances where the question is did the guard overreach.

And if I make the assumption, and it's just an assumption because I haven't looked at any statistics, but there is -- this is going to vastly expand the number of cases in which the Government is the defendant.

Doesn't that bear on the likelihood of the congressional intent to adopt your position?

Anthony A. Yang: I guess there is a few parts to that question.

On the statistics, I am not aware of any statistics that we would be able to reliably extrapolate to see what this would mean.

I think there may well be some additional cases.

However, there are other tools, as we explain in our reply brief, including the Prison Litigation Reform Act, which requires the prisoners both pay their filing fees and if they obtain three strikes, must in fact -- they lose IFP status and must pay that filing fee in advance, and it's a substantial amount of money for many prisoners, given what they earn.

So we think that it's not a reason to ignore what we think is the plain text, particularly where Congress here has in the proviso specifically referenced Section 1346(b).

Section 1346(b) makes clear that the waiver of sovereign immunity applies to acts or omissions committed within the scope of employment.

Justice Antonin Scalia: Can you suggest why Congress might have left out libel, slander, misrepresentation?

Anthony A. Yang: Yes.

I think--

Justice Antonin Scalia: Why -- why would they leave that out if they are only looking at the office and not at the function that the person is performing?

Anthony A. Yang: --Well, I think that those torts serve as a rough approximation of what Congress anticipated would be the areas where it thought the United States should be liable, when we are talking about Federal law enforcement officers.

And I think in fact--

Justice Antonin Scalia: Right.

I mean, that's the point.

So what you are saying is that it suggests that they mean Federal law enforcement officers engaged in law enforcement.

Anthony A. Yang: --Well, not -- I don't know that that is the case, Justice Scalia.

Certainly there is some correlation between those torts and how we should, for instance, understand “ officer of the United States ”, things like false imprisonment, false arrest, malicious prosecution.

All evoke Federal criminal law employment ideas.

However, when we look at the text that Congress used to implement the statute, the text is not like any of the other instances within the Federal Tort Claims Act, where Congress has limited the waiver to particular types of activities or carved out certain activities.

In fact, what Congress did was reference back to the general waiver provision which explains that the waiver applies to acts within the scope of employment.

If Congress had wanted, for instance, to say only within law enforcement capacity, it would have used very different language.

The language of sections -- the other provisions in Sections 2680, for instance, subsections (a), (b), and (c), which limit -- which carve out the execution of a statute or regulation, exercise of discretionary functions, the laws of miscarriage or negligent transmission of postal matter, assessment or collection of taxes or customs duties, (f) specifically directs -- carves out the imposition or establishment of a quarantine, (j) carves out the combatant activities of military forces.

If Congress wanted to use similar language like law enforcement activities of a law enforcement officer, it would have done that.

And the United States -- I don't want to bang the drums too loudly here.

We did take a contrary position previously, but when our office reviewed the case, we simply determined that the position could not be one that would square to the test.

Justice Sonia Sotomayor: Let's assume we adopted the definition Justice Scalia just proposed, law enforcement officer engaged in law enforcement activities.

Would correction officers be engaged in law enforcement activities?

Anthony A. Yang: Well, yes -- maybe yes, maybe no.

What we are talking about is an undefined term and the term does not even -- does not appear in the statute.

Justice Sonia Sotomayor: Well, you can look at it both ways.

Are correction officers as officers who are protecting or securing prisoners, are they acting in a law enforcement capacity in your -- forget about what act, what tort they commit, but do they function--

Anthony A. Yang: There could be many answers to that question.

Justice Sonia Sotomayor: --Okay.

Anthony A. Yang: You could, as the amicus or as the Petitioner suggests, say that the enforcement of a criminal sentence is part of law enforcement capacity, so anything that they do is law enforcement.

You could think of law enforcement capacity as more like arrests, you know, searches for violations of Federal criminal law, and that sort of thing.

Those might be exercises that the Court would have to engage in if Congress had actually used text directing the Court to look at that.

Chief Justice John G. Roberts: Thank you, counsel.

Anthony A. Yang: Thank you.

Chief Justice John G. Roberts: Mr. Bucholtz.

ORAL ARGUMENT OF JEFFREY S. BUCHOLTZ, FOR AMICUS CURIAE, IN SUPPORT OF THE JUDGMENT BELOW, APPOINTED BY THIS COURT

Jeffrey S. Bucholtz: Mr. Chief Justice and may it please the Court:

I hope to convince the Court of two things today.

First is about our reading of the law enforcement proviso as limited to conduct of investigative or law enforcement officers acting as such.

The first is that that reading is textually plausible.

It is a reasonable reading of what Congress enacted in light of the structure of the statute and in light of ordinary English usage.

Justice Ruth Bader Ginsburg: May I ask, in light of your opening statement, are you then abandoning your position that it must be either arrest, search or seizure?

You have used the Ninth Circuit formula.

Jeffrey S. Bucholtz: Well, Justice Ginsburg, it's not really clear how different the Ninth Circuit and the Third Circuit are from each other, because there haven't been cases that have arisen that have really tested the proposition that the Third Circuit meant only, literally only, the execution of a search, the seizure of evidence, or the making of an arrest, and that would exclude conduct very closely incident to one of those things.

Those cases just haven't arisen.

So the courts have used different formulations.

They appear to mean slightly different things by them, but I wouldn't want to exaggerate the differences between the Third Circuit and the Ninth Circuit.

Both are trying to capture what Congress was getting at here, which was the law enforcement proviso was about law enforcement activity.

It was about covering the United States under the FTCA for abuses of law enforcement authority like had occurred in Collinsville, which was the national scandal that prompted the enactment of the proviso.

So I think the answer to, Justice Ginsburg, to your question, is: We think that if you take the Third Circuit's language in Pooler, which of course is not this case, but if you take the Pooler language literally and you say that the only conduct covered is conduct in the course of -- that's language the Court used a few times in Pooler -- in the course of a search, an arrest, or a seizure of evidence, that's problematic because it's clear that Congress was trying to cover abuses of law enforcement authority, including malicious prosecution and abuse of process, which we know because Congress included those torts in the exception to the exception.

And if you had a situation where an officer conducted a search and then wrote a false report about the search that he had conducted, the writing of the report wouldn't literally be in the course of the search.

So if you take those words in Pooler literally, that would be excluded.

That can't be right.

So to that extent we agree with the Ninth Circuit position rather than the Third Circuit position.

But again I'm not really sure that it's fair to attribute that extreme position to the Third Circuit.

Justice Elena Kagan: Mr. Bucholtz, the statute itself has a kind of conduct-based limitation in it.

It says law enforcement officers acting within the scope of their employment.

So I guess my question is, given that there is that conduct-based limitation in the statute, why one would substitute for it law enforcement officers acting as law enforcement officers?

Why wouldn't one use just the conduct-based limitation that's already there?

Jeffrey S. Bucholtz: Justice Kagan, I don't think it's a substitution.

I think it's an addition if it's anything.

But really the reason is that under ordinary English usage, when there's a reference to somebody defined by their status, it's fair to assume that the reference to the person defined by their status is really just intended to cover things they do in that relevant status and not things they do in some other capacity.

What we're asking the Court to do here is exactly what the Court did in Lane v. Pena.

In Lane v. Pena, the statute at issue was the Rehabilitation Act.

It waived sovereign immunity and provided a damages remedy against Federal providers of funding.

The Department of Transportation clearly was a Federal provider of funding.

It gave out all sorts of funding to all sorts of recipients.

But that's not what the case was about.

The case was about the Merchant Marine Academy and somebody who was dismissed from it.

And what the Court said is the reference to Federal funding providers like the Department of Transportation had to be read as limited to Federal funding providers acting as such.

Those were the Court's words, “ acting as such ”.

Justice Anthony Kennedy: Okay.

And then -- then take that theory and track through the statute to show me how that theory works, which is what your opening argument was going to do?

Jeffrey S. Bucholtz: Justice Kennedy, in the first sentence of the proviso, the operative provision, Congress referred to acts or omissions of investigative or law enforcement officers of the United States.

Congress didn't say any acts or omissions of investigative or law enforcement officers were covered.

It didn't say all were covered.

It just said acts or omissions of law enforcement officers in the same way that the statute at issue in Lane referred to conduct of a Federal funding provider.

And so what this Court should do, we submit, is construe acts or omissions of investigative or law enforcement officers of the United States as limited to acts or omissions of those defined -- that defined class of persons in the relevant capacity, when they're acting as law enforcement officers.

Justice Elena Kagan: But again, it's not just any acts of law enforcement officers.

It's acts of law enforcement officers acting within the scope of their authority.

And now you're saying acting as a law enforcement officer.

I mean, one question I suppose I have, which is the same question that I gave to Mr. Yang, is what's the difference between those two things?

And I guess the second question is: Why would we substitute one phrase about how they have to be acting for the phrase that Congress actually used?

Jeffrey S. Bucholtz: Congress didn't, in the proviso, Justice Kagan, Congress did not actually use the phrase “ scope of employment ”.

It did not actually incorporate scope of employment as a limitation explicitly in the proviso.

It -- it incorporated 1346(b), which contains the scope requirement.

But the proviso -- in the proviso, Congress did not actually speak in terms of scope of employment as the operative limitation.

So I don't think we'd be substituting the acting as such limitation for anything that actually appears in the proviso.

Justice Ruth Bader Ginsburg: Is it a limitation?

Is scope a limitation?

I thought that you -- you didn't question that, that scope is a limitation on the conduct that's covered, right?

Jeffrey S. Bucholtz: Justice Ginsburg, we certainly agree that -- that the conduct that's covered has to be within the scope of the Federal officer's employment.

The only point I was trying to make a moment ago in response to Justice Kagan is that requirement exists in 1346, not in the proviso by its terms.

We certainly agree with that, and as we've argued in our brief, we think that one way the Court could affirm the judgment below is to hold that the officers here were not acting within the scope of their employment, taking the allegations as true, as they have to be at this stage of the case.

But to return to Justice Kagan, to your question about why Congress would have wanted to -- the Court to -- to interpret

"acts or omissions of law enforcement officers. "

as acting as such, it's because -- in part the answer is because scope turns on State law.

So Congress doesn't know when it enacts the proviso what's going to be covered if the only limitation is scope, because that turns on 50 different States' laws.

And -- and I think that it's fair to say that there are actual meaningful differences between different States' laws as to scope as we -- as we point out in our brief.

But the other past of the answer is the -- is the second part of this Court's analysis in Lane v. Pena, which is it's entirely possible literally to read the Rehabilitation Act in Lane, and I would grant that it's possible literally to read the words in the proviso, as covering everything that a defined law enforcement officer does within the scope of employment.

But the Court said in Lane: We can't read the statute that way, because we're talking about a waiver of immunity, and waivers of immunity, even if you don't have to put a heavy thumb on the scales and even if you don't have to require that it be unequivocal -- we're not going that far here -- you can't interpret it more broadly than there's any reason to think Congress meant.

Justice Stephen G. Breyer: What does it leave out?

What does it leave out, your theory?

A policeman's a law enforcement officer.

What does he do on his job that isn't in a law enforcement role?

Jeffrey S. Bucholtz: Well, there may be certain types of law enforcement officers, Justice Breyer, who generally aren't engaged in law enforcement activity when they're within the scope of employment.

But that's not the case with respect to correctional officers like are at issue here.

Justice Stephen G. Breyer: Oh, I see.

Jeffrey S. Bucholtz: And the reason for that is -- and other types of officers, which hopefully I'll be able to get to, but correctional officers first since that's what this case is about.

18 U.S.C. 3050 is what makes correctional officers fall within the second sentence of the proviso, the definition that Congress provided of investigative or law enforcement officers.

It's what gives them the authority to execute--

Justice Stephen G. Breyer: So your idea here is a park policeman who is engaged in law enforcement some of the time, but engaged in giving tours the rest of the time.

You're saying what you would do is say when he's engaged in the law enforcement he's covered, but not when he's engaged in the tour.

Jeffrey S. Bucholtz: --That's right, because he meets the status-based definition that Congress provided, but there's no reason to think Congress intended that he be covered when he's not engaged in law enforcement activity.

Justice Sonia Sotomayor: I'm sorry.

What -- what is it about a corrections officer other than the act that was committed here, which was an alleged sexual act which nobody could, except by some definition of State law, think that that ever happens naturally in the course.

But that's an intentional assault.

The very definition of the crimes that are covered assumes that it's not an act that's licensed.

So, why isn't the correction officer acting in a law enforcement capacity when he's restraining people and securing them?

Jeffrey S. Bucholtz: Because the correctional officer essentially has two capacities.

18 U.S.C. 3050, which is the only source of law that anyone has pointed to, to make correctional officers fall within the definition of law enforcement officers in the first place, it has nothing to do with correctional officers' daily interaction with already incarcerated prisoners.

It authorizes correctional officers to arrest escaped inmates and to arrest visitors to prisons.

It has no application to their daily interaction with prisoners who are already incarcerated.

Justice Ruth Bader Ginsburg: What about the takedown that occurred here and I -- it's not uncommon.

The -- your definition includes three things, arrest, search, seizure.

And correctional officers do engage in searches of cells for contraband, and they do engage in seizures.

Those are not -- this isn't like arrest, which you point out the arrest is unusual; it's an escapee or a visitor.

But that's not true of search and seizure.

Jeffrey S. Bucholtz: Justice Ginsburg, correctional officers do search prisoners' cells on a routine basis as part of their duty to maintain order and security within the prisons.

That responsibility comes not from 18 U.S.C. 3050, but from 18 U.S.C. 4001 and following, which is an entirely different set of legal authorities that has to do with the Attorney General's management of the Bureau of Prisons under his supervision and correctional officers -- and 28 C.F.R. Part 552, which is where the correctional officers get their authority from to search prisoner cells, et cetera.

We think that when -- when correctional officers are engaged in that kind of activity, they're acting in a security capacity to maintain order and security within the prison.

They're not acting in their very narrow law enforcement capacity conferred by 18 U.S.C. 3050.

This case doesn't have--

Justice Sonia Sotomayor: Well, what happens -- what happens in the police precinct when police officers are holding pretrial detainees?

Are they acting as police officers or as security people?

Or even when a prisoner comes back to court for a court appearance and there are U.S. marshals who guard them rather than correction officers, what are they serving as in your mind?

Jeffrey S. Bucholtz: --Well, as I said before, Justice Sotomayor, I think there are certain types of law enforcement officers who generally when they're acting within the scope of employment are engaged in law enforcement activity.

And deputy U.S. marshals would probably fall within that.

But the important point about this case is it doesn't, Justice Ginsburg, involve an allegation about a search.

So whatever the Court might think the right way to look at correctional officers when they're engaged in searches might be, this case isn't about a search.

Justice Stephen G. Breyer: Well, why isn't this -- why isn't what the prison guard does law enforcement?

I mean, the law says these people are going to be locked up and he's enforcing that.

Jeffrey S. Bucholtz: The law is already--

Justice Stephen G. Breyer: He's going to be in prison under these da, da, da, da, da.

You know, all that da, da, da means the conditions of the prison, et cetera, they're all regulations, rules, statutes.

He's enforcing them, why not?

Jeffrey S. Bucholtz: --Justice Breyer, I think we can tell from the definition in the proviso what Congress was focused on when it -- when it referred to law enforcement officers.

We can tell what Congress--

Justice Stephen G. Breyer: Well, so now you're saying what those three things could provide the definition?

Jeffrey S. Bucholtz: --And -- and -- and other conduct that--

Justice Stephen G. Breyer: And are you saying that?

Jeffrey S. Bucholtz: --I used before is yes, with the caveat, and I think it's an important one, that it's not just those three things, only what occurs in the course of those three things the way Pooler could possibly be read, but also conduct that's closely incident to those things.

Justice Antonin Scalia: Well, you don't think the EPA is engaged in law enforcement when it enforces statutes and regulations, do you?

Jeffrey S. Bucholtz: It depends, Justice Scalia, it depends--

Justice Antonin Scalia: Would an officer of the EPA be a law enforcement officer when he writes a letter to a company saying, You know, you are violating section such-and-such of the statute?

Is that a law enforcement officer?

Jeffrey S. Bucholtz: --Well, the person who writes the letter may qualify as a law enforcement officer under the definition, but that's a different question, I would submit, than whether that -- whether that act constitutes law enforcement activity.

I think the answer to that question, Justice Scalia, is probably no, but the important follow-up is if that person meets the definition of law enforcement officer because he's an EPA agent, and after the letter he follows up and goes to the premises of the recipient of the letter, knocks down the door and conducts an illegal search, that's what Congress was trying to cover.

Justice Stephen G. Breyer: Yeah, but EPA is not what I'm thinking of, I don't think they are.

I am thinking of police.

Okay.

Now, one basic job of a policeman is to patrol, but not arresting people, not searching and not seizing evidence.

They are on patrol.

That's basically what they do.

All right?

Is that a law enforcement activity?

Jeffrey S. Bucholtz: If it's an FBI agent?

Justice Stephen G. Breyer: Yeah, yeah, yeah, but I mean in places -- it's Federal, I understand.

So I'm sure we can find analogies in the Federal situation to ordinary policemen.

Jeffrey S. Bucholtz: Justice Breyer, the answer -- the answer -- well, it might not be so easy to find an analogy to an ordinary policeman--

Justice Stephen G. Breyer: All right.

But FBI agents, who are the federal police, they're people on Federal enclaves, for example, there are -- they are on Federal enclaves, they act like policemen, okay.

Jeffrey S. Bucholtz: --Sure.

And when they are engaged in patrols, I think it's fair to say that's probably law enforcement activity--

Justice Stephen G. Breyer: Okay.

That's fair.

I mean, what I'm thinking of is either you can have a broad definition or one that's going to get into trouble when we consider real policemen.

So if you have a broad one, then I don't see how prison guards get out of it.

If you have a narrow one, my guess is we could find lots of Federal policemen who really are policemen who aren't doing what falls -- who are doing what falls outside your narrow definition.

I wish I could think of better examples, but I came up with the ones I did.

Jeffrey S. Bucholtz: --Then maybe I should try to return to some of the examples that other Justices have given.

So there was talk earlier about an OSHA inspector.

The Government's position -- and I think this is an important difference between our position and the Government's -- the Government would say that because OSHA isn't a criminal law in the traditional sense and an OSHA inspector or an OSHA agent isn't enforcing criminal law in the colloquial sense, that that shouldn't be covered.

But if the OSHA inspector knocks down your door and conducts an illegal search and batters you, why shouldn't that be covered?

We know that's a law enforcement abuse, and we know that law enforcement abuse is exactly what Congress is trying to get at.

The Government, it's like it's trying to relitigate Marshall against Barlows where this Court held that OSHA inspectors have to have a warrant even though you could think of OSHA as being administrative or civil as opposed to criminal.

That's the argument that the Government made there a generation ago and they lost.

Justice Anthony Kennedy: So how does that argument help your case?

Jeffrey S. Bucholtz: Because, Justice Kennedy, the point in this case is that we agree that correctional officers fall within the plain language of the definition that Congress provided.

Again, the structure of the proviso is there are two sentences, an operative provision and the definition.

We are trying to get the Court to construe the operative provision, the first sentence, in the same way the Court did in Lane against Pena.

The Government is trying to get the Court to construe the definition, the second sentence.

What Congress said in the definition, what the term means, the Court has much less scope to construe that in some way other than the literal language that Congress provided where Congress said what the term means.

So we agree under the plain language of the definition that correctional officers are investigative or law enforcement officers because of 18 U.S.C. 3050, which gives them the power under limited, and inapplicable here, circumstances to arrest.

We think that if you look at correctional officers under 18 U.S.C. 3050 or under the different authorities under 18 U.S.C. 4001 and following and the regulations, that they wear two hats.

Sometimes they act in a law enforcement capacity, but not usually, because that only applies in the narrow context of escapes or visitors.

When they are dealing with already incarcerated prisoners, like in the allegations here, they are really not acting in that capacity at all.

They are wearing a different hat.

Justice Antonin Scalia: You are saying that the Government is trying to minimize the consequences of coming out its way by providing a definition of the officers covered, which will not hold.

You think it does cover a broader category of officers including OSHA inspectors, but it does not cover them when they are not engaged in law enforcement activities.

Jeffrey S. Bucholtz: Justice Scalia, you have absolutely perfectly encapsulated our position.

Thank you.

[Laughter]

The reason why we think that that difference between our position and the Government's is important is that the Government's position would render the proviso severely underinclusive.

We know Congress was trying to get at law enforcement abuses and provide a remedy.

And Congress -- the Government would say that if it's not a traditional law enforcement officer in the colloquial sense of like a constable, that it's not covered.

But all sorts of agents of the United States from OSHA to FDA to all sorts of other agencies, to EPA, engage in law enforcement activity like the three things we know Congress was focused like a laser beam on: Executing searches, seizing evidence, making arrests for violations of Federal law.

And I don't see any basis consistent with the text or our understanding of what Congress intended, to the extent it's different from the text, to say that that's not covered.

Justice Sonia Sotomayor: One other advantage of your definition is that it takes us out of workplace fights between two employees, because presumably the officers who punch each other out, if that incident occurs, aren't acting in a law enforcement capacity.

I am assuming that is part of your argument as well.

Jeffrey S. Bucholtz: That's part of it, that's right.

Justice Sonia Sotomayor: All right.

Then it goes back to the question I asked one of your adversaries, which is all of this depends on how broadly or narrowly we define law enforcement activities.

If we take it as broadly as the Government is suggesting, at moments, it would -- we could very well say, you are right, it's a law enforcement activity, but not as narrowly as some would have it be.

It would include securing or detaining people, or securing or detaining people.

And it would include the Park Service person who stops a visitor and punches them out.

It would include the military personnel who stops someone and does an intentional tort against them, even though they may just be walking on the grounds rather than serving as security that particular day.

So the point is, why should we give it the narrow reading you are giving, and not the broader reading the Government seems to be suggesting?

Jeffrey S. Bucholtz: Well, two parts to the answer, Justice Sotomayor.

The first is the Government is trying to give the first sentence the broader reading, which it recognizes then creates a problem that it tries to solve by narrowing the second sentence in a way that we think won't hold.

But the other part of the answer, Justice Sotomayor, is it's about congressional intent.

Justice Kennedy asked earlier about whether the Government's interpretation or the Petitioner's interpretation would unleash a flood of suits by prisoners and whether it's fair to think that Congress would have intended that.

If you look at the legislative history of the proviso, there is absolutely no indication that anyone in Congress contemplated that the proviso would or could or should apply in the prison situation.

All Congress was focused on was providing a remedy for the kinds of raids that had occurred in Collinsville.

And so I think when somebody has two hats, like a prison guard has, because, again, there is two different sources of legal authority that they are exercising, 18 U.S.C. 3050 versus 4001, or a military policeman who has two hats, in the cases of Holian that we describe in our briefs where the Government made the argument that where a military policeman is engaged in a military function, not a law enforcement function, that they are not covered.

We think where somebody who meets the definition that Congress provided of an investigative or law enforcement officer has two distinct hats, two distinct capacities.

When they are not acting in the law enforcement one, they are not covered.

There is no reason to think that Congress intended that military police or prison guards be covered when they are maintaining order on a military base or within a prison.

That's not what Congress was trying to get at.

And we think again a severe disadvantage of the Government's position, they are trying to solve -- in a sense they are trying to solve the same problem that we are with our acting as such interpretation, but they are trying to solve it through the wrong part of the statute and in a way that -- in a way ends up with the worst of both worlds.

You end up with broader coverage of the kind of conduct that's covered, broader than there is any reason to think Congress intended, conduct that doesn't involve law enforcement activity at all, but a narrower class of people whose conduct is covered.

Where that excludes people like OSHA inspectors, FDA agents, EPA agents and in the rare circumstance where the Forest Service employee is acting as a law enforcement officer rather than as a botanist or an entomologist or something like that, we think Congress intended to cover them.

We know from the definition that there were three exercises of law enforcement authority that Congress was focused like a laser beam on: Executing searches, seizing evidence and making arrests.

Where somebody meets the definition of law enforcement officer and they are doing one of those three things, there is no basis not to say that they are covered.

We think it's better to interpret the first sentence of the proviso the same way the Court did in Lane against Pena as limited to acts or omissions of investigative or law enforcement officers acting as such, and keep the definition that Congress provided the way Congress provided it.

Justice Ruth Bader Ginsburg: Then scope becomes kind of a surplusage.

Jeffrey S. Bucholtz: Not surpluses necessarily, Justice Ginsburg, because it varies among States.

There could be States where scope is narrower or broader, and there could always be situations where State law is such that the easiest way to resolve a case is under scope, and not under the concept of acting as a law enforcement officer.

Justice Ruth Bader Ginsburg: It has to be a law enforcement function.

Give -- give me an example of a case where -- where scope would also be relevant, would also be applicable -- if you -- if there is a law enforcement function, then it fits.

So what does scope add?

Jeffrey S. Bucholtz: Well, if an officer is executing a search but he's doing so because of a personal vendetta against the person whose premises he's searching, and he's -- and he's not -- under whatever the State -- State's law that is applicable, if there is a relatively narrow conception of scope so that you have to be trying to serve your employer, which is the traditional rule, and not just sort of on the job in a loose sense, which is what the D.C. rule has come to be, an officer who is engaged in a search or making -- making an arrest for a completely inappropriate reason, not trying to serve the employer, not in any way that's authorized by the employer, might not be within the scope, but might be engaged in one of the three law enforcement activities that Congress specified.

And the other--

Justice Anthony Kennedy: A prisoner -- a prisoner is supposed to be back in his cell block at 6:00 in the evening, he isn't, he's on the recreation yard, he's somewhat recalcitrant, and two guards carry him back to the cell block.

Is that an arrest?

Jeffrey S. Bucholtz: --No, Justice Kennedy, it's not an arrest, for, among other reasons, the reason that prison guards don't have any legal authority to make an arrest in that circumstance.

The prisoner's already been arrested.

That's how he got to jail in the first place.

Justice Anthony Kennedy: Well, he's violating the prison regulations.

Jeffrey S. Bucholtz: Yes.

And 28 CFR part 552 sets out the authorities that prison guards have to enforce prison regulations to maintain security and order within the prison, like in that circumstance.

That's not making an arrest.

The prison guards have the authority--

Justice Anthony Kennedy: And that's not a law enforcement function as contemplated by the statute, in your view?

Jeffrey S. Bucholtz: --That's correct, Justice Kennedy.

That -- that may involve the use of force and I -- you know, you can make an argument that -- that when you pick somebody up like in your hypothetical, that that's like an arrest at common law.

There's no reason to think Congress was getting at that, was trying to cover that in the proviso.

Where somebody has two different distinct capacities as a matter of law, the way Bureau of Prisons guards do, and they're acting in the one and not the other, then I think that's the simple answer, is that--

Justice Sonia Sotomayor: What's the difference between the officer who punches the prisoner to get him on the ground and pick him up?

Would it apply to the officer who files an arrest complaint against the prisoner, and not to the security officer who just merely carries him back to his cell?

Jeffrey S. Bucholtz: --Justice Sotomayor, the hypothetical is--

Justice Sonia Sotomayor: Or does some physical injury that's substantial.

So the intentional assault gets treated as an exception to this only when the security officer actually files an arrest complaint?

Or would it at all?

Jeffrey S. Bucholtz: --Are you talking about a Bureau of Prison guard filing the arrest complaint?

Justice Sonia Sotomayor: Yes.

Jeffrey S. Bucholtz: Well, I think -- one thing to point out is the government informs the Court in its reply brief that in a situation where there has been a violation of prison rules that may also be a violation of Federal law that may also be a crime, such that, you know, in ordinary English usage, you could refer to the prison guard as conducting an investigation for violation of a Federal crime.

What happens is the BOP guards don't do that themselves.

They call in the FBI.

That's what the government says in its reply brief.

So I think that itself is an indication of the distinction between prison guards who are law enforcement officers as Congress has defined the term, but who are not traditional law enforcement officers, as the government seeks to define -- redefine the term, and in that capacity are not acting as law enforcement officers.

Justice Elena Kagan: Mr. Bucholtz, I'm sure you have done this already, so I apologize, but could you just state your definition of what it means to be acting as a law enforcement officer?

What activities other than the three listed get included?

Jeffrey S. Bucholtz: Well, Justice Kagan, it's hard to give a simple comprehensive answer that applies to all different types of law enforcement officers.

Let me start by saying that the three things that have to be included are the three things that Congress specified, and that's one of the problems with the government's definition, is that it reads out cases involves those three activities, involving, in the government's view -- kinds of officers.

Justice Elena Kagan: But you don't have your own -- so what else gets in the mix?

How would you define it generally?

Jeffrey S. Bucholtz: So -- in a case that involves one of those three things but also something else that's incident to or related to those three things, we think it would probably be artificial.

And you can imagine all sorts of hypos, but it might well be artificial to separate the writing of the -- of the report about the arrest and the arrest itself.

So conduct incident to one of these three specified activities we think is probably covered.

We also think that maybe when you are talking about a type of law enforcement officer like an FBI agent who is wearing his law enforcement hat all the time, doesn't have a second distinct capacity as a matter of law, like a military policeman or correctional officer, that maybe a broader definition is appropriate, that maybe the FBI agent who is--

Justice Elena Kagan: Maybe?

I mean, yes or no or when or--

Jeffrey S. Bucholtz: --Well, I mean, Justice Kagan, in fairness, this case doesn't present that question, because it doesn't involve any law enforcement activity.

Justice Elena Kagan: --But if we're going to adopt your definition, we have to have some understanding of where it's taking us.

Jeffrey S. Bucholtz: Of course.

Of course.

And where I think it would be taking the Court is that as always, there could be hard cases that could arise that the lower courts would have to grapple with, but I think the important concept is, that where somebody has two hats, a law enforcement capacity and some other capacity, then it's easy to draw that line, in concept.

Again, there could be hard cases, but as a concept, it's easy to draw that line.

Where somebody doesn't have two hats, they only have one hat, like an FBI agent, and they are on the job and they are engaged in what normal people would think of as law enforcement activity, maybe that's covered.

I don't really have a -- have a problem with that.

I think -- I think that's probably consistent with what Congress was getting at.

And maybe the way to think about it is, Congress defined “ law enforcement officer ” with reference to the three specified kinds of exercises of law enforcement authority, but when the FBI agent is interviewing a witness or potential suspect but hasn't yet gotten to the point of arresting a person or conducting a search, you can think of that as preliminary to an exercise of one of the three specified authorities, because after all, that's what the FBI agent has the authority to do, it's what his job entails.

And depending on how the initial questioning goes, that might be the next step.

And so it's never far from the scene, when an FBI agent is engaged in what you would normally think of as law enforcement activity, that one of the three specified law enforcement activities could be in the offing.

That's very different when you're talking about Forest Service employees who technically meet the definition but usually are not doing anything within a million miles of what normal people would think of as law enforcement activity.

So I think it's important to distinguish between different kinds of people who fall within the definition.

And -- I understand the Court wants to try to figure out what the implications of this interpretation would be.

I think that in the prison context, the answer is clear, because there are two distinct capacities.

And that's a hugely important context as a practical matter, given the point that Justice Kennedy made about the likelihood of an enormous number of claims that Congress probably didn't intend.

In the military police context, where there are also two distinct capacities, it's probably pretty easy to draw the line.

In other cases, it will be case-by-case whether something that the Plaintiff alleges should be thought of as law enforcement activity or law enforcement officer acting as such.

We don't have a problem with the broad interpretation of law enforcement activity acting as such, dealing with the traditional law enforcement officer in a context that it's clear Congress intended.

Chief Justice John G. Roberts: Thank you, counsel.

Jeffrey S. Bucholtz: Thank you very much, Your Honor.

Chief Justice John G. Roberts: Mr. Paolella, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF CHRISTOPHER J. PAOLELLA, FOR PETITIONER, APPOINTED BY THIS COURT

Christopher J. Paolella: Thank you, Mr. Chief Justice.

Let me begin by addressing Justice Kennedy's point, his question regarding the possibility of a flood of lawsuits from prisoners.

I think it's important to keep in mind that right now, Pooler and Orsay are the minority rules.

Most Federal courts have adopted a broad interpretation of the law enforcement proviso.

So if adopting a broader interpretation here would open the flood gates, the flood gates are already open, and they have been for 40 years in most of the country.

And we haven't seen a flood of FTCA suits brought by prisoners, especially since the passage of the PLRA--

Justice Elena Kagan: Have they also adopted the government's view of what counts as an officer, or have they not?

Christopher J. Paolella: --I -- I don't think that the issue has really been litigated in the Federal courts.

It simply hasn't come up.

And I think that that's an indication that it's -- it's a workable test.

It's -- it's not something -- that there are many, many cases, the vast majority of cases, involve individuals who will be by any reasonable definition core law enforcement officers.

As far as I am aware, every Federal court to address the issue has defined correctional officers as law enforcement officers.

You know -- as officers, as that term is used.

So I think that these things are really ultimately noncontroversial.

Justice Antonin Scalia: You -- you support the government's position on who's an officer, right?

So it wouldn't include EPA.

Is that--

Christopher J. Paolella: I think that the word “ officer ” carries some water in this statute, and it means something other than “ employee ”.

Justice Antonin Scalia: --Is that a yes or a no?

Christopher J. Paolella: Yes.

Justice Scalia, let me return to your earlier point about inferring congressional intent from, for example, from the list of enumerated torts.

And I think it's important to keep in mind that the best evidence of Congress's intent is the text of the statute.

And the fundamental problem with amicus's position is that he very ably uses tools for construing ambiguous statutes to construe a statute that at its core is not ambiguous, it's precise and it's definite.

Now, the coverage that is created by the literal words of the statute may be debatable as a policy matter.

Maybe it makes sense to include correctional officers, maybe it doesn't.

But it's not absurd.

And this Court's rule is when you were construing a non-ambiguous statute, Congress gets to draw that policy line, not the Court, as long as the result is not absurd.

And we would argue that Congress drew that policy line here.

It very specifically provided that any claim based on enumerated tort by a federal law enforcement officer acting within the scope of his or her employment, is where it drew that line, that's what the statute literally says.

There is no argument about that.

And I think that all of the results, the parade of horribles that amicus has raised, again, may be debatable as a policy matter, but not one of them is an absurd exercise of Congress's responsibility.

And as a result, we would urge the Court to reverse.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Bucholtz, this Court appointed you as an amicus curiae to brief and argue the case in support of the judgment below, and you have ably discharged that responsibility for which the Court is grateful.

Thank you.

The case is submitted.