Milligan v. United States, 10–5615.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: COLE
• Citation: 670 F.3d 686
• Parties: Paula Ann MILLIGAN; Harold Montgomery Milligan, Plaintiffs–Appellants, v. UNITED STATES of America; US Marshals Service; Metropolitan Government of Nashville and Davidson County, Tennessee; Daniel Thomas Shelton; Unknown U.S. Marshal # 3; Unknown U.S. Marshal # 4, Individually and as Officers or Agents of the United States Marshals Service and/or Metropolitan Government of Nashville and Davidson County, Tennessee; John Does I–X, are presently unknown Agents, Employees, Servants of Defendants United States Marshal Service, Metro Government of Nashville and Davidson County, Tennessee and/or WZTV–Fox Network; Kevin Coback; C. Reese; W. Terry; Sinclair Television of Nashville, Inc., dba WZTV Fox News (“Fox”) Network, Defendants–Appellees.
• Docket Number: No. 10–5615.,10–5615.
• Decision Date: 05 March 2012

670 F.3d 686

Paula Ann MILLIGAN; Harold Montgomery Milligan, Plaintiffs–Appellants,
v.
UNITED STATES of America; US Marshals Service; Metropolitan Government of Nashville and Davidson County, Tennessee; Daniel Thomas Shelton; Unknown U.S. Marshal # 3; Unknown U.S. Marshal # 4, Individually and as Officers or Agents of the United States Marshals Service and/or Metropolitan Government of Nashville and Davidson County, Tennessee; John Does I–X, are presently unknown Agents, Employees, Servants of Defendants United States Marshal Service, Metro Government of Nashville and Davidson County, Tennessee and/or WZTV–Fox Network; Kevin Coback; C. Reese; W. Terry; Sinclair Television of Nashville, Inc., dba WZTV Fox News (“Fox”) Network, Defendants–Appellees.

No. 10–5615.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 13, 2011.Decided and Filed: March 5, 2012.

[670 F.3d 689]

ARGUED: Andy L. Allman, Kelly, Kelly & Allman, Hendersonville, Tennessee, for Appellants. Patricia A. Foster, Frost Brown Todd LLC, Cincinnati, Ohio, Michael L. Roden, Assistant United States Attorney, Nashville, Tennessee, for Appellees. ON BRIEF: Andy L. Allman, Kelly, Kelly & Allman, Hendersonville, Tennessee, Andrew C. Clarke, Memphis, Tennessee, for Appellants. Patricia A. Foster, Richard M. Goehler, Frost Brown Todd LLC, Cincinnati, Ohio, Michael L. Roden, Assistant United States Attorney, Nashville, Tennessee, for Appellees.

[670 F.3d 690]

Before: MOORE and COLE, Circuit Judges; BECKWITH, District Judge.^*

OPINION COLE, Circuit Judge.

Plaintiffs Paula and Harold Milligan appeal the orders of the district court granting the United States's motion to dismiss for lack of subject matter jurisdiction and Sinclair Broadcasting's motion for summary judgment. We AFFIRM the judgment of the district court.

I. BACKGROUND

In October 2006, law enforcement officials across twenty-four states conducted Operation Falcon III (“the Operation”), a week-long fugitive round-up that led to the arrest of 10,733 people. During the Operation, the U.S. Marshals Service (“the Marshals”) worked in conjunction with local law enforcement officers to locate and apprehend individuals wanted on federal, state, or local felony warrants. In Nashville, the Marshals worked with officers at the Metropolitan Nashville Police Department (“Metro”), who were specially deputized as U.S. Marshals for the Operation. Plaintiff Paula Milligan was among the numerous arrestees. It is undisputed that, due to a series of clerical mistakes, police arrested the wrong person.

In preparation for the Operation, Metro's Warrants Division received all the outstanding warrants for processing. A data entry clerk received the warrants and entered each suspect's name and identifying information into a spreadsheet, and this information was later used to create arrest folders for use during the Operation. One of these warrants was for “Paula Milligan a.k.a. Paula Rebecca Staps,” (“Milligan/Staps”) a five-foot, three-inch, twenty-four-year old white female with brown hair and blue eyes, and a North Carolina driver's license and address. Rather than manually entering all this information, the clerk responsible for processing the warrant first looked her up in the Master Name Index, a database containing information of individuals already in Metro's system. When the clerk processed the warrant for “Paula Milligan a.k.a. Paula Rebecca Staps,” he searched for “Paula Milligan” and, because an entry existed, allowed the database to autofill all of Paula Milligan's identifying information. Unknown to the clerk, this personal information actually belonged to a different Paula Milligan—the Plaintiff, a five-foot, six-inch, forty-two-year old white female with blond hair and brown eyes, and a Tennessee driver's license and address. This Paula Milligan's information appeared in the index because of a traffic ticket she received a few years prior to the issuance of the warrant. The clerk failed to cross-reference the physical description given on the warrant with the description already in the index, and this mistake caused Milligan's date of birth and driver's license number to be linked to the outstanding warrant for Milligan/Staps.

Metro then sent this completed spreadsheet to the Marshals, who forwarded it to the Tennessee Bureau of Investigations (“Bureau”) to prepare the arrest files. After forwarding the spreadsheet, Metro prepared a second version, removing all individuals with out-of-state addresses since the focus of the Operation was on local cases. This second version was not forwarded to the Bureau, so the Bureau prepared arrest files for local and out-of-state suspects, including one for Milligan

[670 F.3d 691]

/Staps. Because the Milligan/Staps warrant had a North Carolina address and was removed from the second spreadsheet, had the Bureau instead relied on the second spreadsheet, it would not have created this arrest file.¹

On October 24, Officer Doug Anderson and his team arrived at Milligan's home to execute the arrest warrant. Anderson carried a copy of her arrest file, though the file did not contain the warrant. It is unknown whether Anderson reviewed the file, but immediately prior to the arrest, he called a warrant clerk to verify that the warrant was still active. Anderson provided the warrant clerk with Milligan's name and date of birth, and the clerk immediately confirmed that the warrant was active. Given the immediacy of the clerk's response, the Defendants concede that she did not physically locate and review the warrant. Additionally, had she reviewed the warrant, she would have noticed that the date of birth did not match the one Anderson provided. Relying on the clerk's assurance, Anderson and his team arrested Milligan, despite the Milligans' adamant claims of mistaken identity. On November 1, 2006, all criminal charges against Milligan were dropped, as it became clear that she had been erroneously arrested. The court issued a final order confirming the dismissal on November 6, 2006.

Prior to the Operation, the Marshals contacted local media outlets and offered an opportunity to ride along and report on the Operation. WZTV–Fox 17 (“Fox 17”), a local television station operated by Sinclair Broadcasting, accepted. Fox 17 was permitted to ride along on October 24, 2006, but agreed not to air footage until November 2, 2006, after the Operation concluded. On the day of Milligan's arrest, a Fox 17 reporter and videographer accompanied Anderson's team to her home, observing and filming her arrest. The reporter was aware that the officers had an arrest file for Milligan, but never reviewed the contents in preparation for the news story.

On November 2, 2006, the day after criminal charges against Milligan were dropped, the news embargo lifted and Fox 17 was permitted to air its story on the Operation. That day, Fox 17 broadcasted a news story providing general information about the Operation as well as footage of people being arrested and descriptions of their crimes. The report also had interviews with police officers and video footage of two arrests, one of which was Milligan's arrest. The story stated that “[t]heir first arrest came early—Paula Milligan, wanted on four counts of forgery and one count of identity theft” and claimed that the arrests were made “with warrants in hand.” The report also included about seven seconds of video showing Milligan being escorted into the police car. The report also focused on other people arrested during that day, including arrests for drug and sex offenses.

The story originally ran on the news at 9:00 at night and then a shorter version played again an hour later. Fox 17 also placed the video on its website, along with a written story. On November 3, 2006, the Milligans' attorney faxed a cease and desist letter to Fox 17. The letter informed Fox 17 that the police had arrested the wrong person and demanded that Fox 17 stop broadcasting the footage. This

[670 F.3d 692]

letter was the first communication between Milligan and Fox 17 after her arrest, as she had never before contacted the station or any other news source to inform them that her arrest had been an error. Sinclair alleges that, until this letter, at no point did they know of any irregularity or problem with Milligan's arrest. After receiving the letter, Fox 17 stopped broadcasting the story and removed the footage. Although the direct links were removed from the website, due to technical difficulties, the original report was still accessible on the website through a keyword search until November 13.

In October 2007, the Milligans filed federal and state lawsuits against the United States of America, the U.S. Marshals Service, the City of Nashville/Metro, Sinclair Broadcasting, and various named and unnamed Marshals, Metro officers, and Sinclair employees. These lawsuits raised an abundance of federal and state claims, including civil rights violations, defamation, invasion of privacy, false arrest, false imprisonment, and assault and battery. As most claims have been previously resolved, the only issues remaining before this Court are the Federal Tort Claims Act (“FTCA”) claim against the United States and the defamation and false light claim against Sinclair Broadcasting. On July 21, 2009, the district court granted Sinclair's motion for summary judgment on the defamation and false light claims. And on September 4, 2009, the district court granted the United States's motion to dismiss the FTCA claims for lack of subject matter jurisdiction. The Milligans timely appeal both of these orders.

II. ANALYSIS A. Motion To Dismiss For Lack Of Subject Matter Jurisdiction Under The FTCA

The FTCA provides a limited sovereign immunity waiver and subject matter jurisdiction for plaintiffs to pursue state law tort claims against the United States. 28 U.S.C. § 1346(b)(1). The FTCA waives sovereign immunity where state law would impose liability against a private individual, Myers v....