Murphy v. U.S.

Citation121 F.Supp.2d 21
Decision Date29 September 2000
Docket NumberNo. CIV.A. 99-2729(JR).,CIV.A. 99-2729(JR).
PartiesDaniel P. MURPHY, Plaintiff, v. UNITED STATES of America.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Roy W. Krieger, Paleos & Krieger, P.C., Washington, DC, for plaintiff.

Meredith Manning, Assist. U.S. Atty., Washington, DC, for U.S.

MEMORANDUM

ROBERTSON, District Judge.

In this Federal Tort Claims Act suit, a veteran secret service agent seeks damages for an alleged assault by his supervisor and for several other common law torts. Plaintiff has also amended his complaint to assert Privacy Act violations stemming from the alleged assault and the subsequent investigation. The government moves to dismiss. The motion will be granted in part and denied in part, for the reasons set forth below.

Facts

The following facts, drawn exclusively from plaintiff's complaint, are taken as true for purposes of this motion: Plaintiff Daniel P. Murphy has been a Special Agent (SA) of the United States Secret Service since 1984. At all times relevant to this lawsuit, he was one of three SAs assigned to the Secret Service Portland, Maine, Residence Agency (PRA). The other Portland SSAs were Kevin T. Flynn and Resident Agent Supervisor (RAS) Michael D. Magalski. This entire lawsuit stems from a work-related dispute between RAS Magalski and SA Murphy.

On February 26, 1998, RAS Magalski walked into SA Murphy's office to give him an assignment. SA Murphy refused to perform the assignment, stating that he was working on another task and that, in any event, the assignment "presented little involvement in the PRA district." Upon hearing SA Murphy's refusal, RAS Magalski "exploded in anger and delivered a tirade of profanity directed at Plaintiff, punctuated by instances of finger jabbing ... toward Plaintiff." This episode culminated in "RAS Magalski advancing towards Plaintiff and physically challenging him with the statement, `[w]hat the fuck are you going to do about it?'"

The next day, SA Murphy sent an e-mail to RAS Magalski complaining about this incident and about several other incidents of abusive behavior by RAS Magalski towards himself and Mr. Flynn. RAS Magalski forwarded a copy of the e-mail with an attached notation denying wrongdoing to Special Agent-in-Charge (SAIC) Michael Johnston, the superior of both men located at the Secret Service's Boston Field Office (BFO). By this time, SA Murphy had retained counsel, and his counsel sent a letter to SAIC Johnson describing RAS Magalski's misconduct and demanding immediate action. SAIC Johnson conducted an investigation into the matter. He ultimately determined that SA Murphy's allegations had no basis, and recommended that SA Murphy be transferred to a different field office to avoid future problems.

What followed was an extended correspondence between SA Murphy's counsel and various higher-ups in the Secret Service. At the behest of SA Murphy's counsel, the Secret Service conducted additional investigations to determine whether SA Murphy's allegations had any basis in fact, each time determining that they did not. The end result was that SA Murphy was transferred to the Secret Service's New York Field Office — a "hardship assignment" for Secret Service agents.

SA Murphy asserts that the government is subject to suit under the FTCA because he was "assaulted" by a United States law enforcement officer acting within the scope of his employment. He also asserts that the United States: (1) negligently failed to act upon his disclosures of misconduct by RAS Magalski; (2) negligently failed to investigate his disclosures; (3) negligently entrusted RAS Magalski with a position of authority; (4) negligently failed to supervise and manage RAS Magalski; and (5) negligently misrepresented information about him.

SA Murphy further alleges that the Secret Service violated the Privacy Act by failing to maintain accurate, timely and complete records about him, and he alleges that the inaccurate records resulted in his transfer to the New York Field Office, which transfer has damaged his career, reputation, and income. The relief he seeks under the Privacy Act is amendment of the offending records and damages in the amount of $500,000.

Analysis
A. FTCA Claim

The FTCA, 28 U.S.C. §§ 1347, 2671-80, is not a general waiver of the sovereign immunity of the United States with respect to intentional torts, but it contains an express waiver for "acts or omissions of investigative or law enforcement officers of the United States Government" arising out of any claim "of assault [or] battery." Id. § 2680(h). The term "investigative or law enforcement officer" is defined for this purpose as "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." Id.

The government submits that § 2680(h) does not apply in this case, because RAS Magalski was acting as a supervisor at the time of the alleged assault. SA Murphy responds that this reading of the so-called "law enforcement proviso" is too restrictive, and that all he must show in order to maintain his claim is that RAS Magalski was a law enforcement officer and that he committed an assault while acting within the scope of his employment.

The only appellate decision that has actually ruled on the scope of the law enforcement proviso is Pooler v. United States, 787 F.2d 868 (3d Cir.1986). That decision construed the proviso narrowly, holding that it applies only to "conduct in the course of a search, a seizure, or an arrest." Id. at 872. The court relied on legislative history emphasizing an "inten[tion] to provide a remedy against the United States in situations where law enforcement officers conduct `no-knock' raids or otherwise violate the Fourth Amendment." Id. "[I]t is in the course of such activities," the court reasoned, "that government agents come most directly in contact with members of the public." Id.

The majority of the trial courts not bound by Pooler have declined to follow the Third Circuit's interpretation. See, e.g., Ortiz v. Pearson, 88 F.Supp.2d 151, 164-65 (S.D.N.Y.2000) (criticizing Pooler as lacking "principled underpinning" and holding that the proviso does not require that the law enforcement officer be engaged in one of the enumerated acts at the time of the alleged wrongdoing); Harris v. United States, 677 F.Supp. 403, 405 (W.D.N.C.1988) (rejecting Pooler as "in error" and holding that the proviso waives governmental immunity for certain intentional torts committed by any of its agents who have the authority to execute searches, seize evidence or make arrests). But see Wood v. United States, No. 92 Civ. 0247, 1993 WL 177821 at *1 (S.D.N.Y. May 17, 1993) (following Pooler). The Ortiz court reasoned that the statute's references to searches, seizures and arrests was an attempt to "define who may be considered a federal law enforcement officer," 88 F.Supp.2d at 164, rather than a limitation of governmental liability to actions taken while engaging in those particular acts.

Neither Pooler's restrictive view nor the more expansive reading of Ortiz and Harris is fully satisfying. Pooler's holding appears unduly narrow, because its flat requirement that the law enforcement officer be engaged in a specific kind of law enforcement activity at the time of the tort is at odds with the broad language of the statute. The decisions that disregard the context of the alleged tort, however, broaden the law enforcement focus of the proviso to reach situations that have nothing to do with the unlawful exercise of police power.

A decision of the Northern District of Illinois adopts an intermediate position that effectively mediates between these two extremes. In Employers Ins. of Wausau v. United States, 815 F.Supp. 255 (N.D.Ill.1993), the court declined to adopt the strict Pooler view, but still rejected the plaintiff's FTCA challenge on well-supported prudential grounds. The court held:

the fair reading of the Section 2680(h) proviso is that even if the FTCA action for such intentional torts is not based on an actual search or seizure of evidence or arrest, it must at a minimum charge the government with wrongdoing based on `acts or omissions of investigative or law enforcement officers' while they are engaged in investigative or law enforcement activities. And for that purpose, `investigative' must be given its normal meaning (akin to that when it is employed in such terms as `private investigator'), not just the generic sense that [plaintiff] suggests — that of simply looking into and thinking about something in the process of reaching a decision.

Id. at 259 (emphasis added). Under this view, lawsuits could proceed against the government — even if the tortfeasor were not engaged in one of the three enumerated law enforcement activities — so long as the alleged wrongdoing took place in the context of law enforcement activity.

This approach allows legitimate complaints against law enforcement officers to proceed against the United States while ensuring that incidents stemming from non-law enforcement related activities are not covered. It is consistent with the legislative history's emphasis on law enforcement abuses against ordinary citizens, such as "no-knock" raids and Fourth Amendment violations. See S.Rep. No. 588, 93d Cong., 2d Sess. 2-3 (1974), 1974 U.S.C.C.A.N. 2789; United States v. Shearer, 473 U.S. 52, 56 & n. 2, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). And it does not "convert[] the statutory proviso into one that is triggered by mere status rather than by actual conduct." Wausau, 815 F.Supp. at 259.

The balanced approach of the Wausau decision is also consistent with the only decision in this Circuit to interpret the proviso. In Sami v. United States, 617 F.2d 755 (D.C.Cir.1979), the Court of Appeals declined to limit the definition of "investigative or law enforcement officer" to someone engaged in those duties at the time of the alleged tort. However,...

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