issued both to Art Metal and to its accounting firm seeking massive quantities of documents, that he subsequently initiated subpoena enforcement actions in federal district court, and that he acted in bad faith and in response to political pressure by members and staff of a subcommittee of the U.S. Senate. The complaint further alleges that at the conclusion of the Inspector General's investigation, the GSA determined that there was insufficient evidence upon which to base administrative debarment or suspension of Art Metal. Count V seeks recovery for the costs of complying with the subpoenas, for the damage the investigation caused its corporate reputation and goodwill, and for various pecuniary losses that the company suffered.
The FTCA defines an investigative or law enforcement officer as "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." 28 U.S.C. § 2680(h). Plaintiff argues that an inspector general is such an officer because the Inspector General Act of 1978 empowers inspectors general "to require by subpena the production of all information, documents, reports, answers, records . . . and other data and documentary evidence necessary in the performance of the functions assigned by this Act, which subpena, in the case of contumacy or refusal to obey, shall be enforceable by order of any appropriate United States district court." 5 U.S.C. Appendix I, § 6(a)(4).
Plaintiff's exceedingly broad interpretation does not withstand analysis. Until 1974 the FTCA barred any claims for "assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." In 1974 the Congress amended the Act to allow such suits against investigative or law enforcement officers. The legislative history of the amendment indicates that Congress was concerned with the kind of governmental activity that had occurred in Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), i.e., warrantless searches in violation of the federal "no-knock" statute. The exception to the exception in the FTCA was designed to "submit the Government to liability whenever its agents act under color of law so as to injure the public through search [sic] and seizures that are conducted without warrants or with warrants issued without probable cause." S. Rep. No. 588, 93rd Cong., 1st Sess. 4 (1973). The type of governmental behavior present in Bivens -- the physical exertion of governmental authority directly on the individual in the course of a criminal investigation -- is of a different character than the authorizing of subpoenas. Obtaining evidence by subpoena is the antithesis of obtaining it through search and seizure, see Zurcher v. Stanford Daily, 436 U.S. 547, 562-63, 98 S. Ct. 1970, 56 L. Ed. 2d 525 (1978), and plaintiff's statement that the inspector general is "empowered by statute to issue subpoenas for the seizure of evidence" amounts to an oxymoron.
The one decision which plaintiff cites to support a broad reading of the definition of a law enforcement officer, Sami v. United States, 199 U.S. App. D.C. 173, 617 F.2d 755 (D.C. Cir. 1979), does not help it, for there the official in question was classified as "criminal investigator" by the United States Civil Service Commission and had power to authorize foreign governments to arrest American citizens for extradition, which is what the official was alleged negligently to have done. Id. at 764. The Court of Appeals decided that, since the official was a trained law enforcement officer and routinely dealt with criminal investigations to such an extent that he could order an arrest, his assignment to duties that did not involve "actual participation in making arrests or conducting investigation," id., did not place him outside of the exception to the exception. The facts of this case are very different: if the issuance of a subpoena were to be regarded as a potential "law enforcement abuse," the federal courts would have jurisdiction to look behind every fraud investigation initiated by a governmental agency that did not end with a finding of fraud. This surely was not Congress' intent. Since the GSA Inspector General is not an investigative or law enforcement officer, Count V must be dismissed.