Federal Tort Claims Act covers jailer's sexual assault.

Kim Millbrook, a federal prisoner, was sexually assaulted by a guard.  Like Clarence Gideon 50 years ago, he filed a pro se complaint and cert petition.  Like Gideon he won in the United States Supreme Court.   In Millbrook v. United States of America (about which we commented at the time of oral argument in this post) the Supreme Court construed 28 USC 2680 (h) which contains a proviso (or exception to the exception from sovereign immunity).  The proviso is that though the United States is not liable for the intentional torts of assault, battery, false arrest, malicious prosecution, libel, slander, interference with contract,  the United States shall be liable for such intentional torts if an “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” consists of  “acts or omissions of investigative or law enforcement officers of the United States Government”.  Justice Thomas, writing for the court, explained that the U.S.A. is liable if the assaulting officer was acting within the scope of his/her employment - even if the investigative or law enforcement officer was not making an arrest or seizing evidence, at the time.


The case also provides an opportunity to consider how FTCA and diversity jurisdiction differ in their reliance on state law.

28 USC 2674  partially waives sovereign immunity:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.

In diversity of jurisdiction cases (28 USC 1332) the court is guided by 28 USC 1652 which provides:
The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.

The difference is significant.  In a diversity case the U.S. court is merely a neutral forum.  It bound (statutorily) to follow the law of the state whose applies (based on the applicable choice of law).  The U.S. Court does not establish any precedent that binds a state or its courts when the federal court is sitting via diversity jurisdiction.

But in a Federal Tort Claims Act cases 28 USC 2680 it is the liability of the United States that is at stake and the substantive law is a matter of federal law - that is it is a  federal question.  Since the U.S. does not have a common law the Congress `borrows’ or adopts the law of the place of the accident.  Once a federal court has determined liability under its understanding of the law of the state even a subsequent change in the law of the state does not change the result reached by the federal court.






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