for an alleged assault by his supervisor and for several other
common law torts. Plaintiff has also amended his complaint to
assert Privacy Act violations stemming from the alleged assault
and the subsequent investigation. The government moves to
dismiss. The motion will be granted in part and denied in part,
for the reasons set forth below.
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.
A. FTCA Claim
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 the course of
such activities," the court reasoned, "that government agents
come most directly in contact with members of the public." Id.
The majority of the trial courts not bound by Pooler have
declined to follow the Third Circuit's interpretation. See,
e.g., Ortiz v. Pearson, 88 F. Supp.2d 151, 164-65 (S.D.N.Y. 2000)
(criticizing Pooler as lacking "principled underpinning" and
holding that the proviso does not require that the law
enforcement officer be engaged in one of the enumerated acts at
the time of the alleged wrongdoing); Harris v. United States,
677 F. Supp. 403, 405 (W.D.N.C. 1988) (rejecting Pooler as "in
error" and holding that the proviso waives governmental immunity
for certain intentional torts committed by any of its agents who
have the authority to execute searches, seize evidence or make
arrests). But see Wood v. United States, No. 92 Civ. 0247, 1993
WL 177821 at *1 (S.D.N.Y. May 17, 1993) (following Pooler). The
Ortiz court reasoned that the statute's references to searches,
seizures and arrests was an attempt to "define who may be
considered a federal law enforcement officer," 88 F. Supp.2d at
164, rather than a limitation of governmental liability to
actions taken while engaging in those particular acts.
Neither Pooler's restrictive view nor the more expansive
reading of Ortiz and Harris is fully satisfying. Pooler's
holding appears unduly narrow, because its flat requirement that
the law enforcement officer be engaged in a specific kind of law
enforcement activity at the time of the tort is at odds with the
broad language of the statute. The decisions that disregard the
context of the alleged tort, however, broaden the law enforcement
focus of the proviso to reach situations that have nothing to do
with the unlawful exercise of police power.
A decision of the Northern District of Illinois adopts an
intermediate position that effectively mediates between these two
extremes. In Employers Ins. of Wausau v. United States,
815 F. Supp. 255 (N.D.Ill. 1993), the court declined to adopt the
strict Pooler view, but still rejected the plaintiff's FTCA
challenge on well-supported prudential grounds. The court held:
the fair reading of the Section 2680(h) proviso is
that even if the FTCA action for such intentional
torts is not based on
an actual search or seizure of evidence or arrest,
it must at a minimum charge the government with
wrongdoing based on `acts or omissions of
investigative or law enforcement officers' while they
are engaged in investigative or law enforcement
activities. And for that purpose, `investigative'
must be given its normal meaning (akin to that when
it is employed in such terms as `private
investigator'), not just the generic sense that
[plaintiff] suggests — that of simply looking into
and thinking about something in the process of
reaching a decision.
Id. at 259 (emphasis added). Under this view, lawsuits could
proceed against the government — even if the tortfeasor were not
engaged in one of the three enumerated law enforcement activities
— so long as the alleged wrongdoing took place in the context of
law enforcement activity.
This approach allows legitimate complaints against law
enforcement officers to proceed against the United States while
ensuring that incidents stemming from non-law enforcement related
activities are not covered. It is consistent with the legislative
history's emphasis on law enforcement abuses against ordinary
citizens, such as "no-knock" raids and Fourth Amendment
violations. See S.Rep. No. 588, 93d Cong., 2d Sess. 2-3 (1974),
1974 U.S.C.C.A.N. 2789; United States v. Shearer, 473 U.S. 52,
56 & n. 2, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). And it does not
"convert the statutory proviso into one that is triggered by
mere status rather than by actual conduct." Wausau, 815 F. Supp.
The balanced approach of the Wausau decision is also
consistent with the only decision in this Circuit to interpret
the proviso. In Sami v. United States, 617 F.2d 755 (D.C.Cir.
1979), the Court of Appeals declined to limit the definition of
"investigative or law enforcement officer" to someone engaged in
those duties at the time of the alleged tort. However, it
emphasized that "Congress set finite boundaries around the kind
of law enforcement abuses for which it wished to make the
government liable," id. at 765, and noted that "[w]e deduce
from th[e] [Senate] report an intent to `provid[e] a remedy
against the Federal Government for innocent victims of Federal
law enforcement abuses,'" id. (citation omitted) (emphasis
added). The Sami court did not decide whether the plaintiff
stated an actionable claim under the proviso, but the plain
import of the underscored language is that the proviso relates to
an abuse in the law enforcement context.
Applying the rule of the Wausau decision to the facts of the
instant case, Mr. Murphy's assault-based claim must be dismissed.
The alleged assault did not arise while RAS Magalski was "engaged
in investigative or law enforcement activities," as those terms
are traditionally understood. Rather, it arose out of a workplace
dispute between a supervisor and an employee over who would
perform a work assignment. A workplace dispute between a
government supervisor and a government employee does not fall
within the law enforcement proviso to the FTCA. Cf. United
States v. Shearer, 473 U.S. 52, 55, 105 S.Ct. 3039, 87 L.Ed.2d
38 (1985) (intentional tort exception shields government from
liability where "some agent of the Government gets in a fight
with some fellow . . . [a]nd socks him.") (dicta) (citation
B. Negligence Claims
The government asserts that Mr. Murphy's common law causes of
action concerning the nature, timing and conduct of the follow-up
investigation are barred by the discretionary function exception
to the FTCA. Mr. Murphy responds that the Secret Service cannot
take refuge in this exception because it violated its own
The Supreme Court has established a two-part test to determine
whether an action is exempt from suit under the discretionary
function exception. See
United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113
L.Ed.2d 335 (1991). First, the court must determine whether any
"federal statute, regulation, or policy specifically prescribes a
course of conduct for an employee to follow." Id. at 322, 111
S.Ct. 1267. If a specific directive exists, then the sole and
determinative inquiry for governmental liability is whether that
directive was followed. See id.
If no specific directive exists, the court must apply the
second part: whether the challenged discretionary acts of a
government employee "are of the nature and quality that Congress
intended to shield from liability." United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines),
467 U.S. 797, 813, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). Decisions that
require choice are exempt from suit under the FTCA only if they
are "susceptible to policy judgment" and involve the exercise of
"political, social [or] economic judgment." Gaubert, 499 U.S.
at 325, 111 S.Ct. 1267. The "focus on the inquiry is not on the
agent's subjective intent in exercising the discretion conferred
by statute or regulation, but on the nature of the actions taken
and whether they are susceptible to policy analysis." Id. at
326, 111 S.Ct. 1267.
Mr. Murphy points to various provisions from a Secret Service
manual discussing internal investigations in an apparent effort
to identify a "specific directive" that was violated. There are
two problems with his theory. First, internal regulations that
are merely intended to provide guidance to employees do not have
the force and effect of law and are not binding on the United
States. See Schweiker v. Hansen, 450 U.S. 785, 789, 101 S.Ct.
1468, 67 L.Ed.2d 685 (1981).*fn1 Second, even assuming that
these regulations are binding on the United States, Mr. Murphy
has not identified any one of them that squarely applies in this
case and was violated. The internal regulations he cites "do not
contain directives so precise that they constrain" the manner in
which the Secret Service may conduct investigations, Cope v.
Scott, 45 F.3d 445, 450 (D.C.Cir. 1995), but instead include
permissive, non-binding language that appears to confer
substantial discretion on agency investigators.
With respect to the second part of the test, it is settled law
in this Circuit that "prosecutorial decisions as to whether, when
and against whom to initiate prosecution are quintessential
examples of governmental discretion in enforcing the criminal
law, and, accordingly, courts have uniformly found them to be
immune under the discretionary function exception." Gray v.
Bell, 712 F.2d 490, 513 (D.C.Cir. 1983); see also Moore v.
Valder, 65 F.3d 189, 197 (D.C.Cir. 1995). Analogously,
investigatory decisions must at a minimum be afforded a
presumption that they too are discretionary in nature.
The decisions the Secret Service made in this case about how to
conduct the investigation into Mr. Murphy's charges necessarily
involved policy choices "fraught with" social judgments involving
personnel management and the use of investigatory resources.
Varig, 467 U.S. at 814, 104 S.Ct. 2755. Although the Secret
Service may not have "exercise[d] the best judgment" in
addressing SA Murphy's allegations against RAS Magalski,
"Congress has provided that the Court may not `second guess'
those types of judgments by way of a tort action." W.C. & A.N.
Miller Companies v. United States, 963 F. Supp. 1231, 1240
C. Additional Common-Law Tort Claims
In his opposition, SA Murphy alleges two new tort claims —
of emotional distress and invasion of privacy — that he did not
include in his administrative complaint.
Intentional infliction of emotional distress is, of course, an
intentional tort. It is barred by the intentional torts exception
to the FTCA for the reasons stated supra.
Contrary to the government's assertion in its supplemental
memorandum,*fn2 however, invasion of privacy does not appear to
be an intentional tort in this jurisdiction, see Kitt v. Capital
Concerts, Inc., 742 A.2d 856, 859 (D.C. 1999) (setting forth
elements). It is therefore necessary to consider whether Mr.
Murphy complied with 28 U.S.C. § 2675(a) in presenting this claim
to the Secret Service.
The standard for administrative presentment of FTCA claims was
announced in GAF Corp. v. United States, 818 F.2d 901, 919
(D.C.Cir. 1987): "Section 2675(a) requires a claimant to file (1)
a written statement sufficiently describing the injury to enable
the agency to begin its own investigation, and (2) a sum-certain
damages claim." The court in GAF rejected a more stringent
presentment standard that would have required proof of each
claim, and instead required only that the agency provide
sufficient "notice" of the claims to "enable the agency to
investigate and ascertain the strength of a claim." Id.
To establish liability for the tort of invasion of privacy, a
plaintiff must show: (1) publicity; (2) about a false statement,
representation or imputation; (3) understood to be of and
concerning the plaintiff; (4) which places the plaintiff in a
false light that would be offensive to a reasonable person.
Kitt, 742 A.2d at 859. These elements demand markedly different
factual evidence than those of common law assault or negligence.
The allegations in Mr. Murphy's complaint thus did not provide
notice of an invasion of privacy claim, even under the fairly
liberal standard announced in GAF.*fn3 818 F.2d at 921; see
also Bembenista v. United States, 866 F.2d 493, 498 (D.C.Cir.
1989); Orlando Helicopter Airways v. U.S., 75 F.3d 622, 626
(11th Cir. 1996).
It unnecessary to address the government's further arguments
that SA Murphy's common law claims are barred because they arose
out of the assault or because they are not cognizable under
District of Columbia law. It is also unnecessary to address the
government's argument that venue in this district is improper.
D. The Privacy Act Claims
SA Murphy's amended complaint demands that the agency's records
about him be amended to correct inaccuracies and seeks damages on
the theory that his transfer to the New York Field Office was
caused by the inaccurate record and was retaliatory. Limitations
on this court's jurisdiction require dismissal of all but one of
The Privacy Act requires an individual seeking amendment of a
record to follow the procedures outlined in §§ 552a(d)(2) and
552a(d)(3), namely, to request amendment of the record by the
agency and then, if the request is denied, to request review of
that denial. An individual who fails to exhaust these
administrative remedies is precluded from seeking review in this
court. Haase v. Sessions, 893 F.2d 370, 373 (D.C.Cir. 1990).
Plaintiff admits that he did not seek agency review of his
records under the Privacy Act but argues that his submission of
Federal Tort Claims Act claim was substantial compliance or, in
the alternative, that his noncompliance should be excused on
These arguments are without merit. Plaintiff asserts that his
FTCA "administrative claim clearly stated his contention that the
Secret Service was negligent in its investigation and records"
related to the alleged assault. Plaintiff relies on Liguori v.
Alexander, 495 F. Supp. 641, 646 (S.D.N.Y. 1980), where "[t]he
parties agree that plaintiff orally asked Major Glisson, the
custodian of personnel records, to delete certain portions of his
employee record card," but in this case there is no claim that
plaintiff asked the Secret Service to amend his record. A demand
for damages under FTCA is not a request for record amendment
under the Privacy Act. See Blazy v. Tenet, 979 F. Supp. 10, 18
(D.D.C. 1997) ("[N]o suit will lie until subsection (d)(3) has
been invoked and the explicit steps of the statue followed.");
Dickson v. Office of Personnel Management, 828 F.2d 32, 40
(D.C.Cir. 1987) (finding Privacy Act claim barred where plaintiff
had not followed the express statutory procedures).
Plaintiff's belief that resort to administrative remedies would
be futile does not excuse his failure to exhaust. In a Privacy
Act case, exhaustion is an express statutory prerequisite to the
exercise of jurisdiction by a federal court and "vague and
conclusory allegations. . . . provide no basis for us to
short-circuit" the exhaustion requirement. Schuler v. United
States, 617 F.2d 605, 609 (D.C.Cir. 1979) (rejecting futility
defense where plaintiff claimed past unsuccessful attempts to
have records amended through non-Privacy Act channels evidenced
futility); see also Dickson, 828 F.2d at 40 (rejecting futility
Plaintiff's failure to exhaust administrative remedies does not
bar his claim that his transfer to the New York Field Office was
the result of inaccurate records and that he was damaged by the
transfer. The Privacy Act permits an individual to "recover
damages for an adverse personnel action actually caused by an
inaccurate or incomplete record." Hubbard v. U.S. Environmental
Protection Agency, 809 F.2d 1, 5 (D.C.Cir. 1986). This claim for
damages presents daunting problems of proof for the plaintiff. In
order to prevail, he will have to establish, not only that the
records were inaccurate,*fn4 but that it was the inaccuracy of
the records — rather than the underlying events — that caused his
alleged injury. These proof problems are not addressable on a
motion to dismiss, however.
Plaintiff's claim that his transfer was retaliatory is
precluded by the Civil Service Reform Act (CSRA). The CSRA
"deprives the district court of jurisdiction to review prohibited
personnel practices." Hubbard, 809 F.2d at 5.
For the reasons set forth in the accompanying memorandum, it is
this day of September 2000,
ORDERED that defendant's motion to dismiss [# 2] [# 15] is
granted as to Count I of the amended complaint and granted in
part and denied in part as to Count II of the amended complaint.