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September 29, 2000


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.


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 law." Id.

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 ...

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