(Slip Opinion) OCTOBER TERM, 2012 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

MILLBROOK v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE THIRD CIRCUIT 

No. 11–10362. Argued February 19, 2013—Decided March 27, 2013 

The Federal Tort Claims Act (FTCA) waives the Government’s sovereign immunity from tort suits, but excepts from that waiver certain 

intentional torts, 28 U. S. C. §2680(h). Section §2680(h), in turn, contains a proviso that extends the waiver of immunity to claims for six

intentional torts, including assault and battery, that are based on the

“acts or omissions” of an “investigative or law enforcement officer” 

i.e., a federal officer “who is empowered by law to execute searches, to

seize evidence, or to make arrests.” Petitioner Millbrook, a federal 

prisoner, sued the United States under the FTCA, alleging, inter alia, 

assault and battery by correctional officers. The District Court 

granted the Government summary judgment, and the Third Circuit 

affirmed, hewing to its precedent that the “law enforcement proviso” 

applies only to tortious conduct that occurs during the course of executing a search, seizing evidence, or making an arrest. 

Held: The law enforcement proviso extends to law enforcement officers’

acts or omissions that arise within the scope of their employment, regardless of whether the officers are engaged in investigative or law

enforcement activity, or are executing a search, seizing evidence, or

making an arrest. The proviso’s plain language supports this conclusion. On its face, the proviso applies where a claim arises out of one

of six intentional torts and is related to the “acts or omissions” of an 

“investigative or law enforcement officer.” §2680(h). And by crossreferencing §1346(b), the proviso incorporates an additional requirement that the “acts or omissions” occur while the officer is “acting 

within the scope of his office or employment.” §1346(b)(1). Nothing 

in §2680(h)’s text supports further limiting the proviso to conduct 

arising out of searches, seizures of evidence, or arrests. The FTCA’s 

only reference to those terms is in §2680(h)’s definition of “investiga-
 

2 MILLBROOK v. UNITED STATES 

Syllabus 

tive or law enforcement officer,” which focuses on the status of persons whose conduct may be actionable, not the types of activities that

may give rise to a claim. This confirms that Congress intended immunity determinations to depend on a federal officer’s legal authority, not on a particular exercise of that authority. Nor does the proviso indicate that a waiver of immunity requires the officer to be

engaged in investigative or law enforcement activity. The text never 

uses those terms. Had Congress intended to further narrow the

waiver’s scope, it could have used language to that effect. See Ali v. 

Federal Bureau of Prisons, 552 U. S. 214, 227. Pp. 4−8. 

477 Fed. Appx. 4, reversed and remanded. 

THOMAS, J., delivered the opinion for a unanimous Court. 
 

 

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Cite as: 569 U. S. ____ (2013) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

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notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

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SUPREME COURT OF THE UNITED STATES 

No. 11–10362 

KIM MILLBROOK, PETITIONER v. UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE THIRD CIRCUIT
 

[March 27, 2013]

 JUSTICE THOMAS delivered the opinion of the Court. 

Petitioner Kim Millbrook, a prisoner in the custody of

the Federal Bureau of Prisons (BOP), alleges that correctional officers sexually assaulted and verbally threatened

him while he was in their custody. Millbrook filed suit 

in Federal District Court under the Federal Tort Claims 

Act, 28 U. S. C. §§1346(b), 2671–2680 (FTCA or Act),

which waives the Government’s sovereign immunity from

tort suits, including those based on certain intentional torts

committed by federal law enforcement officers, §2680(h). 

The District Court dismissed Millbrook’s action, and the 

Court of Appeals affirmed. The Court of Appeals held 

that, while the FTCA waives the United States’ sovereign 

immunity for certain intentional torts by law enforcement 

officers, it only does so when the tortious conduct occurs in

the course of executing a search, seizing evidence, or

making an arrest. Petitioner contends that the FTCA’s 

waiver is not so limited. We agree and reverse the judgment of the Court of Appeals.1 

—————— 

1Because no party defends the judgment, we appointed Jeffrey S. 

Bucholtz to brief and argue this case, as amicus curiae, in support of 

the judgment below. 568 U. S. ___ (2012). Amicus Bucholtz has ably 
 

2 MILLBROOK v. UNITED STATES 

Opinion of the Court 

I 

A 

The FTCA “was designed primarily to remove the sovereign immunity of the United States from suits in tort.” 

Levin v. United States, 568 U. S. ___, ___ (2013) (slip op.,

at 2) (internal quotation marks omitted). The Act gives

federal district courts exclusive jurisdiction over claims

against the United States for “injury or loss of property, 

or personal injury or death caused by the negligent or 

wrongful act or omission” of a federal employee “acting

within the scope of his office or employment.” 28 U. S. C. 

§1346(b)(1). This broad waiver of sovereign immunity is 

subject to a number of exceptions set forth in §2680. One 

such exception, relating to intentional torts, preserves the 

Government’s immunity from suit for “[a]ny claim arising 

out of assault, battery, false imprisonment, false arrest, 

malicious prosecution, abuse of process, libel, slander, 

misrepresentation, deceit, or interference with contract

rights.” §2680(h). We have referred to §2680(h) as the

“intentional tort exception.” Levin, supra, at ___ (slip op., 

at 2) (internal quotation marks omitted).

In 1974, Congress carved out an exception to §2680(h)’s 

preservation of the United States’ sovereign immunity

for intentional torts by adding a proviso covering claims 

that arise out of the wrongful conduct of law enforcement

officers. See Act of Mar. 16, 1974, Pub. L. 93–253, §2, 88 

Stat. 50. Known as the “law enforcement proviso,” this

provision extends the waiver of sovereign immunity to

claims for six intentional torts, including assault and

battery, that are based on the “acts or omissions of investigative or law enforcement officers.” §2680(h). The proviso defines “‘investigative or law enforcement officer’” to 

mean “any officer of the United States who is empowered 

—————— 

discharged his assigned responsibilities, and the Court thanks him for

his well-stated arguments. 
 

Cite as: 569 U. S. ____ (2013) 3 

Opinion of the Court 

by law to execute searches, to seize evidence, or to make

arrests for violations of Federal law.” Ibid. 

B 

On January 18, 2011, Millbrook filed suit against the

United States under the FTCA, asserting claims of negligence, assault, and battery. In his complaint, Millbrook 

alleged that, on March 5, 2010, he was forced to perform oral sex on a BOP correctional officer, while another 

officer held him in a choke hold and a third officer stood 

watch nearby. Millbrook claimed that the officers threatened to kill him if he did not comply with their demands. 

Millbrook alleged that he suffered physical injuries as a 

result of the incident and, accordingly, sought compensatory damages. 

The Government argued that the FTCA did not waive 

the United States’ sovereign immunity from suit on 

Millbrook’s intentional tort claims, because they fell within the intentional tort exception in §2680(h). The Government contended that §2680(h)’s law enforcement proviso 

did not save Millbrook’s claims because of the Third Circuit’s binding precedent in Pooler v. United States, 787 

F. 2d 868 (1986), which interpreted the proviso to apply

only to tortious conduct that occurred during the course 

of “executing a search, seizing evidence, or making an arrest.” Id., at 872. The District Court agreed and granted 

summary judgment for the United States because the 

alleged conduct “did not take place during an arrest,

search, or seizure of evidence.” Civ. Action No. 3:11–cv– 

00131 (MD Pa., Feb. 16, 2012), App. 96.2 The Third Circuit affirmed. 477 Fed. Appx. 4, 5–6 (2012) (per curiam).

We granted certiorari, 567 U. S. ___ (2012), to resolve a 

Circuit split concerning the circumstances under which 

—————— 

2The District Court also concluded that Millbrook failed to state an 

actionable negligence claim because “it is clear that the alleged assault 

and battery was intentional.” App. 96. This issue is not before us. 
 

 

 

4 MILLBROOK v. UNITED STATES 

Opinion of the Court 

intentionally tortious conduct by law enforcement officers

can give rise to an actionable claim under the FTCA.

Compare Pooler, supra; and Orsay v. United States Dept. 

of Justice, 289 F. 3d 1125, 1136 (CA9 2002) (law enforcement proviso “reaches only those claims asserting that the 

tort occurred in the course of investigative or law enforcement activities” (emphasis added)); with Ignacio v. United 

States, 674 F. 3d 252, 256 (CA4 2012) (holding that the

law enforcement proviso “waives immunity whenever an

investigative or law enforcement officer commits one of the

specified intentional torts, regardless of whether the officer 

is engaged in investigative or law enforcement activity” 

(emphasis added)). 

II 

The FTCA waives the United States’ sovereign immunity for certain intentional torts committed by law enforcement officers. The portion of the Act relevant here 

provides: 

“The provisions of this chapter and section 1346(b)

of this title shall not apply to— 

. . . . . 

“(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 

. . . out of assault, battery, false imprisonment, false 

arrest, abuse of process, or malicious prosecution.” 28 

U. S. C. §2680(h). 

On its face, the law enforcement proviso applies where a 

claim both arises out of one of the proviso’s six intentional 
Cite as: 569 U. S. ____ (2013) 5 

Opinion of the Court 

torts, and is related to the “acts or omissions” of an “investigative or law enforcement officer.” The proviso’s crossreference to §1346(b) incorporates an additional requirement that the acts or omissions giving rise to the claim

occur while the officer is “acting within the scope of his 

office or employment.” §1346(b)(1). The question in this 

case is whether the FTCA further limits the category

of “acts or omissions” that trigger the United States’

liability.3 

The plain language of the law enforcement proviso

answers when a law enforcement officer’s “acts or omissions” may give rise to an actionable tort claim under the

FTCA. The proviso specifies that the conduct must arise

from one of the six enumerated intentional torts and, 

by expressly cross-referencing §1346(b), indicates that the 

law enforcement officer’s “acts or omissions” must fall 

“within the scope of his office or employment.” §§2680(h),

1346(b)(1). Nothing in the text further qualifies the category of “acts or omissions” that may trigger FTCA liability. 

A number of lower courts have nevertheless read into 

the text additional limitations designed to narrow the 

scope of the law enforcement proviso. The Ninth Circuit, 

for instance, held that the law enforcement proviso does 

not apply unless the tort was “committed in the course of 

investigative or law enforcement activities.” Orsay, supra, 

at 1135. As noted, the Third Circuit construed the law 

enforcement proviso even more narrowly in holding that it 

applies only to tortious conduct by federal officers during

the course of “executing a search, seizing evidence, or 

making an arrest.” Pooler, 787 F. 2d, at 872. Court-

—————— 

3The Government conceded in the proceedings below that the correctional officer whose alleged conduct is at issue was acting within the

scope of his employment and that the named correctional officers 

qualify as “investigative or law enforcement officers” within the meaning of the FTCA. App. 54–55, 84–85; Brief for United States 30. 

Accordingly, we express no opinion on either of these issues. 
 

 

6 MILLBROOK v. UNITED STATES 

Opinion of the Court 

appointed amicus curiae (Amicus) similarly asks us to

construe the proviso to waive “sovereign immunity only for 

torts committed by federal officers acting in their capacity

as ‘investigative or law enforcement officers.’” Brief for 

Amicus 5. Under this approach, the conduct of federal

officers would be actionable only when it “aris[es] out of

searches, seizures of evidence, arrests, and closely related 

exercises of investigative or law-enforcement authority.” 

Ibid. 

None of these interpretations finds any support in the

text of the statute. The FTCA’s only reference to “searches,” 

“seiz[ures of ] evidence,” and “arrests” is found in the

statutory definition of “investigative or law enforcement

officer.” §2680(h) (defining “‘investigative or law enforcement officer’” to mean any federal officer who is “empowered by law to execute searches, to seize evidence, or to

make arrests for violations of Federal law”). By its terms,

this provision focuses on the status of persons whose conduct may be actionable, not the types of activities that 

may give rise to a tort claim against the United States. 

The proviso thus distinguishes between the acts for which 

immunity is waived (e.g., assault and battery), and the

class of persons whose acts may give rise to an actionable

FTCA claim. The plain text confirms that Congress intended immunity determinations to depend on a federal

officer’s legal authority, not on a particular exercise of that

authority. Consequently, there is no basis for concluding 

that a law enforcement officer’s intentional tort must occur in the course of executing a search, seizing evidence, 

or making an arrest in order to subject the United States

to liability.

Nor does the text of the proviso provide any indication 

that the officer must be engaged in “investigative or law

enforcement activity.” Indeed, the text never uses the 

term. Amicus contends that we should read the reference 

to “investigative or law-enforcement officer” as implicitly 
 

 

Cite as: 569 U. S. ____ (2013) 7 

Opinion of the Court 

limiting the proviso to claims arising from actions taken

in an officer’s investigative or law enforcement capacity. 

But there is no basis for so limiting the term when Congress has spoken directly to the circumstances in which a

law enforcement officer’s conduct may expose the United

States to tort liability. Under the proviso, an intentional

tort is not actionable unless it occurs while the law enforcement officer is “acting within the scope of his office or 

employment.” §§2680(h), 1346(b)(1). Had Congress intended to further narrow the scope of the proviso, Congress could have limited it to claims arising from “acts or 

omissions of investigative or law enforcement officers 

acting in a law enforcement or investigative capacity.” See 

Ali v. Federal Bureau of Prisons, 552 U. S. 214, 227 (2008). 

Congress adopted similar limitations in neighboring provisions, see §2680(a) (referring to “[a]ny claim based upon

an act or omission of an employee of the Government . . . 

in the execution of a statute or regulation” (emphasis

added)), but did not do so here. We, therefore, decline to 

read such a limitation into unambiguous text. Jimenez v. 

Quarterman, 555 U. S. 113, 118 (2009) (“[W]hen the statutory language is plain, we must enforce it according to its

terms”); Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 

(2002) (“The inquiry ceases if the statutory language is 

unambiguous and the statutory scheme is coherent and 

consistent” (internal quotation marks omitted)). 

* * * 

We hold that the waiver effected by the law enforcement

proviso extends to acts or omissions of law enforcement

officers that arise within the scope of their employment, 

regardless of whether the officers are engaged in investigative or law enforcement activity, or are executing a

search, seizing evidence, or making an arrest. Accordingly, we reverse the judgment of the Court of Appeals and 

remand the case for further proceedings consistent with 
 

8 MILLBROOK v. UNITED STATES 

Opinion of the Court 

this opinion. 

It is so ordered.