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No. 07-501

 

In the Supreme Court of the United States

MARILYN SHIRLEY AND RAYMOND DOUGLAS SHIRLEY,
PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
THOMAS M. BONDY
CHRISTOPHER J. WALKER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly applied "the law of the place where the act or omission occurred" to determine "scope of employment" under the Federal Tort Claims Act, 28 U.S.C. 1346(b)(1).

In the Supreme Court of the United States

No. 07-501

MARILYN SHIRLEY AND RAYMOND DOUGLAS SHIRLEY,
PETITIONERS

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals (Pet. App. 1a-5a) is not published in the Federal Reporter but is reprinted in 232 Fed. Appx. 419. The decision of the district court (Pet. App. 8a-15a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on May 17, 2007. A petition for rehearing was denied on July 16, 2007. Pet. App. 6a-7a. The petition for a writ of certiorari was filed on October 11, 2007. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

This case arises out of a claim that petitioners Mari lyn and Raymond Shirley filed against the United States government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671 et seq., seeking to recover dam ages arising from the sexual assault of Ms. Shirley by a corrections officer while she was incarcerated in a fed eral penitentiary.

1. The FTCA provides a limited waiver of sovereign immunity, allowing the United States to be held liable for torts committed by "any employee of the Govern ment while acting within the scope of his office or em ployment, under circumstances where the United States, if a private person, would be liable to the claimant in ac cordance with the law of the place where the act or omis sion occurred." 28 U.S.C. 1346(b); see United States v. Olson, 546 U.S. 43, 44-45 (2005). The FTCA's waiver of sovereign immunity contains several exceptions, two of which are pertinent to this case.

First, the United States retains its sovereign immu nity if the claim is "based upon the exercise or perfor mance or the failure to exercise or perform a discretion ary function or duty on the part of a federal agency or an employee of the Government, whether or not the dis cretion involved be abused." 28 U.S.C. 2680(a). The dis cretionary function exception "marks the boundary be tween Congress' willingness to impose tort liability upon the United States and its desire to protect certain gov ernmental activities from exposure to suit by private individuals." United States v. Varig Airlines, 467 U.S. 797, 808 (1984). Because tort actions challenging discre tionary policy judgments could "seriously handicap effi cient government operations," id. at 814 (citation omit ted), Congress retained the United States' sovereign immunity in that area. The exception is designed to "prevent judicial 'second-guessing' of legislative and ad ministrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Ibid.

Second, Congress excepted most intentional torts from the FTCA's waiver of sovereign immunity-i.e., "[a]ny claim arising out of assault, battery, false impris onment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or in terference with contract rights." 28 U.S.C. 2680(h). In 1974, Congress carved out an exception to that immunity for intentional torts: "[W]ith regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chap ter and section 1346(b) of this title shall apply to any claim arising * * * out of assault, battery, false impris onment, false arrest, abuse of process, or malicious pros ecution." Ibid. Congress defined "investigative or law enforcement officers" to include "any officer of the Uni ted States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." Ibid.

2. In 1998, Ms. Shirley entered a federal prison at the Federal Medical Center Carswell in Fort Worth, Texas, to begin serving a 37-month sentence for unlaw ful use of a communication device to facilitate the distri bution of a controlled substance. Pet. App. 8a-9a. In 2000, Officer Michael Lawrence Miller, a correctional officer at the prison, sexually assaulted Shirley. Id. at 9a. After an investigation of the incident, Miller was assigned to other duties at the prison. Ibid. The United States subsequently brought criminal charges against Miller, and a jury ultimately convicted him of aggra vated sexual abuse, sexual abuse of a ward, and abusive sexual contact. He was sentenced to a total of 150 months in prison. Ibid.; see United States v. Miller, 132 Fed. Appx. 10 (5th Cir.) (affirming conviction), cert. de nied, 546 U.S. 939 (2005). Ms. Shirley also sued Miller in a Bivens action, and a jury awarded her $4 million in damages. Pet. App. 9a & n.1 (citing Bivens v. Six Un known Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971)).

3. Petitioners then brought the present action ag ainst the United States under the FTCA, raising claims for negligent hiring, training, supervision, and retention, as well as claims, under theories of vicarious liability and respondeat superior, for intentional infliction of emo tional distress, battery, assault, false imprisonment, negligence per se, and negligence. Pet. App. 9a-10a. The district court granted the government's motion for summary judgment. Id. at 16a-17a.

First, the district court held that the United States is immune from suit for its discretionary decisions in selecting, training, and supervising its employees. Pet. App. 13a-14a (citing cases). Applying the standard set forth in United States v. Gaubert, 499 U.S. 315, 322-323 (1991), the district court explained that no statute or regulation "limit[ed] or den[ied] the existence of discre tion for implementing [any] specific [prison safety] pol icy," and "[i]mposing a duty with no specific designation of how to carry out such authority is the essence of dis cretion." Pet. App. 13a-14a.

Second, the district court held the United States im mune from suit under petitioners' theories of vicarious liability and respondeat superior. The court explained that "the waiver of sovereign immunity in the FTCA only covers torts committed by government employees acting within the scope of their employment." Pet. App. 14a (citing Sheridan v. United States, 487 U.S. 392, 400- 401 (1988)). Here, the parties agreed that scope of em ployment was determined by Texas law. See, e.g., Pet. Summ. J. Br. 12 ("Thus, the substantive law of the State of Texas is controlling with respect to the liability of the defendant United States. * * * A review of the Texas case law regarding scope of employment for purposes of imposing vicarious liability/respondeat superior illus trates that Miller's conduct was plainly within the scope of his employment."). Applying Texas law, the court concluded that the United States could not be held liable because, in sexually assaulting an inmate, "Miller stepped aside from his employment to accomplish his own, rather than the United States', purpose." Pet. App. 15a.

4. On appeal, petitioners challenged only the district court's vicarious liability holding, and not its discretion ary function holding. Pet. C.A. Br. 1, 6. As the court of appeals noted, petitioners further conceded that "the district court correctly articulated the general test for scope of employment in Texas," and were appealing only whether the district court properly applied the excep tions to that test as recognized under Texas law. Pet. App. 4a; see Pet. C.A. Br. 7 ("Texas law controls whether liability can be imputed on [sic] the United States for Miller's actions. * * * Under Texas law, an employer is vicariously liable for acts of its employee committed within the course and scope of his employ ment."). The court of appeals rejected petitioners' argu ment for vicarious liability because, unlike in the Texas state court cases on which petitioners relied, "Shirley fails to allege that a [] legitimate employment interest animated Miller's sexual assault in the instant case." Pet. App. 4a. The court of appeals thus affirmed the district court's judgment for the United States in an unpublished per curiam decision. Id. at 5a.

5. Petitioners filed a petition for rehearing and re hearing en banc, arguing that the panel erred by mis construing Texas law governing scope of employment. See Pet. for Reh'g 5 ("The panel erred in determining that Texas would not allow liability in like circum stances."). The court of appeals denied petitioners' re quest for rehearing. No judge voted for rehearing or rehearing en banc. Pet. App. 6a-7a.

ARGUMENT

The unpublished decision of the court of appeals is correct on the merits and does not conflict with any deci sion of this Court or of any other court of appeals. Peti tioners' sole argument is that scope of employment for FTCA purposes should not be determined by state law, but by a "uniform national standard of liability." Pet. 27. Because petitioners raise that argument for the first time in their petition for a writ of certiorari, and because petitioners' argument lacks merit, this Court's review is unwarranted.

1. As an initial matter, petitioners failed to raise be fore the district court or court of appeals the argument they now make in their petition for a writ of certiorari. Petitioners did not argue in either court that scope of employment for FTCA purposes should be determined by a national standard. Instead, petitioners asserted that "the substantive law of the State of Texas is con trolling with respect to the liability of the defendant United States." Pet. Summ. J. Br. 12; see ibid. ("A re view of the Texas case law regarding scope of employ ment for purposes of imposing vicarious liability/respon deat superior illustrates that Miller's conduct was plain ly within the scope of his employment."); Pet. C.A. Br. 7 ("Texas law controls whether liability can be imputed on the United States for Miller's actions * * * . Under Texas law, an employer is vicariously liable for acts of its employee committed within the course and scope of his employment."). Accordingly, this Court should de cline to consider petitioners' current argument that the court of appeals erred in applying state law to determine scope of employment. See United States v. Ortiz, 422 U.S. 891, 898 (1975) (declining to consider an issue raised for the first time on appeal by a party who advo cated a contrary position in the court below); see also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993) ("Where issues are neither raised before nor con sidered by the Court of Appeals, this Court will not ordi narily consider them.") (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970)).

2. Even if petitioners had preserved the argument, this Court's review would be unwarranted. This Court has long held, as petitioners concede, that the issue of scope of employment is controlled by the applicable state law of respondeat superior. See Williams v. Uni ted States, 350 U.S. 857, 857 (1955) (per curiam) ("This case is controlled by the California doctrine of respon deat superior.").1 Both the district court and the court of appeals in the instant case properly applied the Texas law of respondeat superior, consistent with this Court's well-settled precedent, to determine that the correc tional officer did not act within the scope of his employ ment.

Contrary to petitioners' assertions, see Pet. 12, 13, 15, 16, 19, 20, 22, 27, there is no conflict, confusion, or uncertainty regarding whether scope of employment for FTCA purposes is determined by "the law of the place where the act or omission occurred." 28 U.S.C. 1346(b)(1). Petitioners' main authority for any such "confusion" is an isolated district court decision, which was reversed by the Fifth Circuit on that specific ques tion. See Pet. 13, 14, 15 (citing Garcia v. United States, 799 F. Supp. 674 (W.D. Tex. 1992), rev'd in relevant part, 62 F.3d 126 (5th Cir. 1995) (en banc) (per curiam)). Petitioners also point to a dissenting opinion in Prim eaux v. United States, 181 F.3d 876 (8th Cir. 1999) (en banc), cert. denied, 528 U.S. 1154 (2000), apparently for the proposition that the 1974 amendment to the FTCA changed the scope-of-employment analysis for inten tional torts committed by law enforcement officers. See Pet. 16, 19-20. That dissent, however, does not support petitioners' position. Rather, the dissent specifically took issue with the majority's interpretation of South Dakota state law on respondeat superior, and reaf firmed the general principle that, even in light of the 1974 amendment, "[i]t is evident from the legislative his tory of the FTCA and, more importantly, from the Su preme Court itself that scope of employment is defined by the fullest extent of state respondeat superior law." Primeaux, 181 F.3d at 885 (Lay, J., dissenting); see id. at 882 n.1 ("All of the circuits including this court have held that liability of the United States may be imposed under the Federal Tort Claims Act * * * if a private employer would be liable under state law respondeat su perior where the wrongful conduct took place.") .

Indeed, every circuit has reached the same conclu sion: "[W]hether a particular federal employee was or was not acting within the scope of his employment is controlled by the law of the state in which the negligent or wrongful conduct occurred." Garcia v. United States, 62 F.3d 126 (5th Cir. 1995) (citing Williams, 350 U.S. 857); see Nelson v. United States, 838 F.2d 1280, 1282 (D.C. Cir. 1988); Attallah v. United States, 955 F.2d 776, 781 (1st Cir. 1992); O'Toole v. United States, 284 F.2d 792, 795 (2d Cir. 1960), cert. denied, 366 U.S. 927 (1961); McSwain v. United States, 422 F.2d 1086, 1088 (3d Cir. 1970); Cooner v. United States, 276 F.2d 220, 224 (4th Cir. 1960); Flechsig v. United States, 991 F.2d 300, 302 (6th Cir. 1993); Duffy v. United States, 966 F.2d 307, 314 (7th Cir. 1992); Piper v. United States, 887 F.2d 861, 863 (8th Cir. 1989); Washington v. United States, 868 F.2d 332, 334 (9th Cir.), cert. denied, 493 U.S. 992 (1989); Pattno v. United States, 311 F.2d 604, 607 (10th Cir. 1962), cert. denied, 373 U.S. 911 (1963); S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir. 1990), amended by 924 F.2d 1555 (11th Cir.), cert. de nied, 502 U.S. 813 (1991).2

3. Unable to identify any genuine conflict, petition ers ask this Court to "revisit" its half-century-old deci sion in Williams, see Pet. 17 n.6, and thus overturn a precedent that has been uniformly adopted and applied by the federal courts of appeals. They argue that, since the 1974 addition of Section 2680(h), there has been "a growing divide among the state and federal courts with respect to the correct understanding of the scope of em ployment of law enforcement officers," Pet. 22, and "[t]here is no reason that the scope of [FTCA] liability should depend on the particular jurisdiction in which a federal officer commits an intentional tort." Pet. 25. Both the plain text of the statute and this Court's prece dent, however, foreclose that argument.

a. Unlike other contexts in which uniform federal standards are imposed, Congress has expressly pro vided that FTCA liability depends on "the law of the place where the act or omission occurred." 28 U.S.C. 1346(b)(1); see Williams, 350 U.S. at 857 (FTCA scope of employment determined by state law); cf. Pet. 25, 26 & n.8 (citing Bivens, Title VII, and the National Labor Relations Act as "justification for a uniform national standard"). Liability under the FTCA based on a law enforcement officer's intentional tort is an exception to the general immunity for intentional torts that Congress preserved in the FTCA. See 28 U.S.C. 2680(h). And, in the statutory provision containing that exception, Con gress specified that "the provisions of this chapter and section 1346(b) of this title shall apply to any [such] claim." Ibid. Therefore, the federal government may be held liable under the FTCA for a claim arising "out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution" if the conditions of both statutory sections are met: (1) the tort is commit ted by an "investigative or law enforcement officer[]," 28 U.S.C. 2680(h), and (2) the tort is committed by said of ficer "while acting within the scope of his office or em ployment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. 1346(b)(1). As discussed above, this Court and every court of appeals has recog nized that the most natural reading of the plain text of Section 1346(b) incorporates state law to determine both whether an officer acts "within the scope of his employ ment" and whether he "would be liable to the claimant." Ibid. The 1974 addition of Section 2680(h) did nothing to change the text of Section 1346(b); there is therefore no reason to construe Section 1346(b) any differently in the intentional tort context.

b. Petitioners argue that, notwithstanding the plain text of the statute, FTCA liability for intentional torts committed by law enforcement officers should be based on "uniform rules of federal law," as is the case in the Bivens context with respect to constitutional claims. Pet. 26 (quoting Bivens, 403 U.S. at 409 (Harlan, J., con curring)). This Court, however, has already rejected that argument and has explained that the attempted FTCA/Bivens analogy is unavailing. In Carlson v. Green, 446 U.S. 14, 20 (1980), the Court held that, in the context of intentional torts committed by prison officials, victims "shall have an action under FTCA against the United States as well as a Bivens action against the indi vidual officials alleged to have infringed their constitu tional rights." The Court left open the availability of a Bivens action because, even after the 1974 amendment to the FTCA,

an action under FTCA exists only if the State in which the alleged misconduct occurred would permit a cause of action for that misconduct to go forward. 28 U.S.C. § 1346(b) (United States liable "in accor dance with the law of the place where the act or omission occurred"). Yet it is obvious that the liabil ity of federal officials for violations of citizens' consti tutional rights should be governed by uniform rules.

Id. at 23. The Court's decision in Carlson thus makes clear that the 1974 amendment to the FTCA did nothing to change Congress's determination that FTCA liability, including any question of scope of employment, turns on state law, and that that legislative policy judgment re tains full force in the intentional tort context.

4. Because it is settled in this Court and in every federal court of appeals that state law defines the FTCA's scope-of-employment prerequisite, all that could be left for review in this case is whether the court of appeals properly applied Texas law. Petitioners, how ever, do not raise that issue for review in their petition for a writ of certiorari. Nor do they identify any excep tional circumstance that would justify departure from the rule that this Court does not "normally grant peti tions for certiorari solely to review what purports to be an application of state law." Leavitt v. Jane L., 518 U.S. 137, 144 (1996).

In any event, as petitioners have again conceded, the court of appeals properly articulated the general test for scope of employment under Texas law. See Pet. App. 4a (noting that petitioners conceded that "the district court correctly articulated the general test for scope of em ployment in Texas"); see also Pet. App. 3a & n.3 (citing Ross v. Marshall, 426 F.3d 745, 763-764 (5th Cir. 2005) (re-articulating the three-part test established by Texas state courts), cert. denied, 127 S. Ct. 1125 (2007)). The court of appeals also properly recognized that, under Texas law, Miller's actions fell outside the scope of em ployment because no "legitimate employment interest animated Miller's sexual assault." Pet. App. 4a; see Mackey v. U.P. Enters., 935 S.W.2d 446, 453 (Tex. App. 1996) ("[W]hen the servant turns aside, for however a short time, from the prosecution of the master's work to engage in an affair wholly his own [there, assault], he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or plea sure is upon him alone.") (citations omitted). Similarly, the court of appeals properly rejected petitioners' argu ments based on foreseeability and apparent authority because "[n]one of the [state court] cases relied upon [by petitioners] are sufficiently analogous nor do they serve to excuse a plaintiff in this context from making a show ing that an employee's wrongful act grew out of a legiti mate employment duty or goal." Pet. App. 4a. Because the courts below applied settled principles of state law to the particular facts of this case, that fact-bound as sessment provides no basis for this Court's review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General

THOMAS M. BONDY
CHRISTOPHER J. WALKER
Attorneys

 

 

JANUARY 2008

1 In the original panel decision in Williams, the Ninth Circuit had crafted a special rule in FTCA cases involving tortious acts of a member of the armed forces, asking whether the soldier was acting in the line of duty. See Williams v. United States, 215 F.2d 800, 806-810 (9th Cir. 1954). Rejecting that special rule, this Court vacated and remanded the case, instructing the Ninth Circuit simply to apply the state rule. Wil- liams thus established that scope of employment under the FTCA is a question of state, not federal, law. See O'Toole v. United States, 284 F.2d 792, 795 (2d Cir. 1960), cert. denied, 366 U.S. 927 (1961).

2 Petitioners also assert that this case "conflicts with the decisions of this Court in Indian Towing Co. v. United States, 350 U.S. 61 (1955), and United States v. Muniz, 374 U.S. 150 (1963)." Pet. 12. Those cases, however, do not address the scope of employment for FTCA purposes. Instead, they reject the proposition that the FTCA incorporates state immunity laws for government actors-i.e., "the casuistries of munici pal liability for torts," Indian Towing, 350 U.S. at 65, and the "restric tive state rules of immunity," Muniz, 374 U.S. at 164.

Indian Towing and Muniz explain that the question under the FTCA is not whether a similarly situated state government actor would be held liable under like circumstances, but "whether a private individual under like circumstances would be liable under state law." Muniz, 374 U.S. at 153 (emphasis added); see Indian Towing, 350 U.S. at 68-69 ("The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of govern mental activities in circumstances like unto those in which a private person would be liable."); see also Olson, 546 U.S. at 44-45 ("[T]he United States waives sovereign immunity 'under circumstances' where local law would make a 'private person' liable in tort * * * . And we reverse a line of Ninth Circuit precedent permitting courts in certain circumstances to base a waiver simply upon a finding that local law would make a 'state or municipal entit[y]' liable."). In the instant case, the court of appeals' analysis was consistent with Indian Towing and Muniz. The court of appeals did not hold the United States immune from suit by relying on Texas law conferring blanket immunity for all claims against the state "arising out of assault, battery, false imprison ment, or any other intentional tort." Tex. Civ. Prac. & Rem. Code Ann. § 101.057(2) (Vernon 2005). Instead, it asked whether a similarly situated private person would be held liable under Texas law. Pet. App. 3a-4a.