Employers Ins. of Wausau v. US, 92 C 2396.

• Decision Date: 26 February 1993
• Docket Number: No. 92 C 2396.,92 C 2396.
• Citation: 815 F. Supp. 255
• Parties: EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

815 F. Supp. 255

EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, Plaintiff, v. UNITED STATES of America, Defendant.

No. 92 C 2396.

United States District Court, N.D. Illinois, E.D.

February 26, 1993.

Robert M. Wattson, for plaintiff.

Elizabeth Strange, U.S. Dept. of Justice, Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

Employers Insurance of Wausau ("Wausau") has filed this action against the United States under the Federal Tort Claims Act ("FTCA," 28 U.S.C. §§ 2671-2680).¹ Wausau challenges the determination, made by the Environmental Protection Agency ("EPA"), that Wausau had responsibility under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA," 42 U.S.C. §§ 9601-9660)² for the cleanup of contamination at a facility in Romulus, Michigan. Because Wausau had to spend over $2 million to carry out that cleanup, it advances three claims to recoup those costs, one sounding in malicious prosecution (Count I), another in abuse of process (Count II) and the third in negligence (Count III).

In response the United States has moved to dismiss Wausau's action for lack of subject matter jurisdiction. Its motion is based on two limitations built into FTCA as exceptions to the government's waiver of sovereign immunity under that statute:

1. Section 2680(a)'s discretionary function provision and

2. Section 2680(h)'s preclusion of malicious prosecution and abuse of process claims except for those within the scope of a proviso enacted in 1974 (Pub.L. 93-253, § 2, 88 Stat. 50).

Because the Supreme Court has twice spoken to the discretionary function issue in a definitive way in the past few years (Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988) and United States v. Gaubert, ___ U.S. ___, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)), and because that Section 2680(a) provision is potentially dispositive of the entire case while Section 2680(h) is not, this Court has directed the parties to limit their current attention to questions bearing on the discretionary function exception — eschewing any discussion of Section 2680(h) at least for the time being. Wausau has not heeded that direction in its just-tendered 44-page responsive memorandum,³ but what it has said there about Section 2680(h) has only succeeded in talking itself out of court on its Counts I and II.

As stated earlier, it was in 1974 that Section 2680(h) was amended to carve out an exception to the statute's previously-existing absolute prohibition against private actions against the government charging malicious prosecution, abuse of process and a group of other intentional torts. Here is the present version of the statute, with its original total bar having been modified by the entire proviso that follows:

(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, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means 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.

Nothing in EPA's conduct, in the course of reaching its decision that required Wausau to clean up the contaminated property, involved any searches, any seizure of evidence or any arrests (or, for that matter, any other conduct even remotely approaching any such activity). Wausau nevertheless urges that the mere existence of such powers in EPA personnel is enough to trigger operation of the proviso.

But Wausau's arguments on that score are wholly unpersuasive:

1. First Wausau points to CERCLA § 9606(a) as permitting EPA to "require the Attorney General of the United States to secure such relief as may be necessary to abate" what the same section labels as "an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility." To begin with, that is a somewhat misleading quotation from CERCLA § 9606(a).⁴ But even if the statement is viewed as an accurate portrayal of EPA's powers, it is of course absurd to suggest that simply because EPA might be able to enlist the government's premier law enforcement officer to carry out CERCLA's statutory purposes, that would somehow convert EPA's people themselves into law enforcement officers. If anything, the conclusion to be drawn from that provision (even as Wausau portrays it) would point in exactly the opposite direction, for it would tend to confirm the nonexistence of such power in the EPA people on their own.

2. Wausau seeks to bootstrap from that same statutory provision (thus necessarily resting on a foundation built on sand) by pointing to this excerpt (found in S.Rep. No. 98-351, 98th Cong., 2d Sess. 51 (1984)), reprinted in 1984 U.S. C.C.A.N. from the legislative history of the predecessor to CERCLA, the Resource Conservation and Recovery Act:

As under other environmental statutes, EPA has inherent authority under RCRA to initiate and conduct investigations under the criminal provisions of the statute and to refer the results of these investigations to the Attorney General for prosecution in appropriate cases.

But as will be discussed in a moment or two, it is not a fair reading of the Section 2680(h) proviso to treat the potential of investigative activity looking toward a criminal prosecution (that is, law enforcement activities in the traditional sense) by others as somehow triggering liability for claimed malicious prosecution and abuse of process for EPA's own purely civil activities that are not traditionally within the purview of law enforcement officers.

3. Next Wausau Mem. 43 argues:

Second, the EPA was empowered to conduct searches, seize evidence and make arrests in this case in connection with CERCLA § 107(a) because, upon information and belief, the EPA investigators who actually conducted the liability investigation to identify PRPs were trained criminal investigators.

That non sequitur belongs in what the New Yorker magazine sometimes labels the Department of Clotted Nonsense. Wausau's reasoning (?) — by seeking to transmute prior training into current authority — would effectively convert former FBI agents into "investigative or law enforcement officers" for statutory purposes for the rest of their lives, no matter by whom (perhaps even private security firms?) or in what capacity they were employed. It would certainly do wonders for the private-eye business if anyone were able to hire an ex-FBI agent "to conduct searches, seize evidence and make arrests" without fear of being charged with illegal conduct. Only a moment's reflection demonstrates the absurdity of Wausau's position.

4. Implicit in that last contention is the notion that the need for EPA to reach the decisions involved in discharging its statutory responsibilities under CERCLA necessarily makes its personnel "investigative officers" so as to call the Section 2680(h) proviso into play. But that notion really proves too much. If that were truly the case, every governmental agency that reaches any decision (except perhaps a totally arbitrary ipse dixit conclusion) would come within the proviso. Surely the mere need for an agency to learn the facts necessary to exercise the statutory responsibilities with which that agency is charged cannot serve as the litmus test for labeling its personnel "investigative officers" for Section 2680(h) purposes.

Nor, as the ensuing text shows, is Wausau's extremist position justified by the court decisions dealing with the statutory proviso to Section 2680(h).

At the outset of this discussion of case law, a word must be said about one disturbing aspect of Wausau's briefing on that score. Its memorandum cites this Court to two Court of Appeals decisions (the reading of which discloses that they really do not call for the conclusion advanced by Wausau) and two District Court decisions. But Wausau wholly fails to mention in its discussion of the cases that the one Court of Appeals that has dealt directly with the question posed here (the Third Circuit) has held squarely against the position that Wausau advances. And there can be no question that Wausau knew that — for both of the District Court decisions that it does cite referred expressly to the Third Circuit decision, voiced their disagreement with it and declined to follow it. Did Wausau's lawyers think that this Court would simply read what its memorandum said about the cases, rather than reading the cases themselves? It is true that such nondisclosure does not violate Rule 3.3(a)(3) of this District Court's Rules of Professional Conduct (because the directly adverse authority from another Circuit does not bind this Court), but the lawyers' responsibility of candor to the tribunal should have caused Wausau's lawyers at least to point out the existence of the adverse authority in their memorandum (of course making clear their disagreement with its ruling).

To turn to the merits: Though this Court is not of the school that looks to the legislative history and then, only if that history is ambiguous, resorts to the statutory language, in this instance the history of the proviso justifies brief mention because it confirms the natural reading of the statute. That proviso was inserted by the Senate late in the enactment process of wide-ranging legislation of which the proviso was only a small piece. It was triggered by a...