The opinion of the court was delivered by: Robertson, District Judge.
The following facts, drawn exclusively from plaintiff's
complaint, are taken as true for purposes of this motion:
Plaintiff Daniel P. Murphy has been a Special Agent (SA) of the
United States Secret Service since 1984. At all times relevant to
this lawsuit, he was one of three SAs assigned to the Secret
Service Portland, Maine, Residence Agency (PRA). The other
Portland SSAs were Kevin T. Flynn and Resident Agent Supervisor
(RAS) Michael D. Magalski. This entire lawsuit stems from a
work-related dispute between RAS Magalski and SA Murphy.
On February 26, 1998, RAS Magalski walked into SA Murphy's
office to give him an assignment. SA Murphy refused to perform
the assignment, stating that he was working on another task and
that, in any event, the assignment "presented little involvement
in the PRA district." Upon hearing SA Murphy's refusal, RAS
Magalski "exploded in anger and delivered a tirade of profanity
directed at Plaintiff, punctuated by instances of finger jabbing
. . . toward Plaintiff." This episode culminated in "RAS Magalski
advancing towards Plaintiff and physically challenging him with
the statement, `[w]hat the fuck are you going to do about it?'"
The next day, SA Murphy sent an e-mail to RAS Magalski
complaining about this incident and about several other incidents
of abusive behavior by RAS Magalski towards himself and Mr.
Flynn. RAS Magalski forwarded a copy of the e-mail with an
attached notation denying wrongdoing to Special Agent-in-Charge
(SAIC) Michael Johnston, the superior of both men located at the
Secret Service's Boston Field Office (BFO). By this time, SA
Murphy had retained counsel, and his counsel sent a letter to
SAIC Johnson describing RAS Magalski's misconduct and demanding
immediate action. SAIC Johnson conducted an investigation into
the matter. He ultimately determined that SA Murphy's allegations
had no basis, and recommended that SA Murphy be transferred to a
different field office to avoid future problems.
What followed was an extended correspondence between SA
Murphy's counsel and various higher-ups in the Secret Service. At
the behest of SA Murphy's counsel, the Secret Service conducted
additional investigations to determine whether SA Murphy's
allegations had any basis in fact, each time determining that
they did not. The end result was that SA Murphy was transferred
to the Secret Service's New York Field Office — a "hardship
assignment" for Secret Service agents.
SA Murphy asserts that the government is subject to suit under
the FTCA because he was "assaulted" by a United States law
enforcement officer acting within the scope of his employment. He
also asserts that the United States: (1) negligently failed to
act upon his disclosures of misconduct by RAS Magalski; (2)
negligently failed to investigate his disclosures; (3)
negligently entrusted RAS Magalski with a position of authority;
(4) negligently failed to supervise and manage RAS Magalski; and
(5) negligently misrepresented information about him.
SA Murphy further alleges that the Secret Service violated the
Privacy Act by failing to maintain accurate, timely and complete
records about him, and he alleges that the inaccurate records
resulted in his transfer to the New York Field Office, which
transfer has damaged his career, reputation, and income. The
relief he seeks under the Privacy Act is amendment of the
offending records and damages in the amount of $500,000.
The FTCA, 28 U.S.C. § 1347, 2671-80, is not a general waiver
of the sovereign immunity of the United States with respect to
intentional torts, but it contains an express waiver for "acts or
omissions of investigative or law enforcement officers of the
United States Government" arising out of any claim "of assault
[or] battery." Id. § 2680(h). The term "investigative or law
enforcement officer" is defined for this purpose 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
The government submits that § 2680(h) does not apply in this
case, because RAS Magalski was acting as a supervisor at the time
of the alleged assault. SA Murphy responds that this reading of
the so-called "law enforcement proviso" is too restrictive, and
that all he must show in order to maintain his claim is that RAS
Magalski was a law enforcement officer and that he committed an
assault while acting within the scope of his employment.
The only appellate decision that has actually ruled on the
scope of the law enforcement proviso is Pooler v. United
States, 787 F.2d 868 (3d Cir. 1986). That decision construed the
proviso narrowly, holding that it applies only to "conduct in the
course of a search, a seizure, or an arrest." Id. at 872. The
court relied on legislative history emphasizing an "inten[tion]
to provide a remedy against the United States in situations where
law enforcement officers conduct `no-knock' raids or otherwise
violate the Fourth Amendment." Id. "[I]t is in ...