Clifford Devine v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13864
Non-Argument Calendar
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CLIFFORD DEVINE,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 1:18-cv-00195-JRH-BKE
____________________
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2 Opinion of the Court 20-13864
Before WILSON and LUCK , Circuit Judges.*
PER C URIAM :
Clifford Devine, an army civilian contractor, was detained
by Department of the Army Civilian Police officers during a “ter-
rorist on base” drill at Fort Gordon, Georgia. He sued the govern-
ment under the Federal Tort Claims Act for negligent failure to
warn, battery, and false imprisonment. The government moved
to dismiss, arguing that the arresting officers were not “investiga-
tive or law enforcement officers,” as defined in the Act,
see 28
U.S.C. § 2860(h), so Devine’s claims were barred by sovereign im-
munity. The district court agreed and granted the government’s
motion to dismiss on that basis.
Devine moved for reconsideration, which the district court
denied, arguing that the district court erred by not applying a sta-
tus-based test in
Millbrook v. United States, 569 U.S. 50 (2013), to
determine whether the arresting officers were law enforcement of-
ficers. On appeal, the government now concedes that the arresting
officers were law enforcement officers and asks that we summarily
reverse and remand for further proceedings. Having inde-
pendently reviewed the record, we agree.
The Federal Tort Claims Act waives the government’s sov-
ereign immunity for claims against the United States and its agents
* This opinion is being entered by a quorum pursuant to 28 U.S.C. § 46(d).
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20-13864 Opinion of the Court 3
based on the “acts or omissions of investigative or law enforcement
officers.” 28 U.S.C. § 2680(h);
Millbrook, 569 U.S. at 52–53. The
Act defines “‘investigative or law enforcement officer’” as “any of-
ficer of the United States who is empowered by law to execute
searches, to seize evidence, or to make arrests for violations of Fed-
eral law.” 28 U.S.C. § 2680(h). In
Millbrook, the Supreme Court
explained that this waiver “focuses on the
status of persons whose
conduct may be actionable”—i.e., whether they have the legal au-
thority to conduct investigations, make arrests, and enforce federal
law—and not on the conduct giving rise to the claim. 569 U.S. at
56.
Here, Devine alleged that he was detained by federal agents,
and the government concedes that “Devine was detained by offic-
ers of the Department of the Army Civilian Police force.” As the
government now also concedes, these officers have the legal au-
thority to conduct investigations, make arrests, and enforce federal
law,
see 10 U.S.C. § 2672(b)(1), (c), and are, thus, “investigative or
law enforcement officers” as defined by the Act,
see 28 U.S.C.
§ 2680(h). Devine also alleged that he was “arrested” and “hand-
cuffed” by “officers” and “agents of the United States,” which,
viewed in the light most favorable to Devine, supports the infer-
ence that the officers who detained him had the authority to do so.
Because the government concedes that the arresting officers
were law enforcement officers under the Federal Tort Claims Act,
one side is “clearly right as a matter of law,”
Groendyke Transp.,
Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), so we grant the
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4 Opinion of the Court 20-13864
government’s motion for summary reversal and remand to the dis-
trict court for further proceedings.
MOTION FOR SUMMARY REVERSAL GRANTED;
REMANDED FOR FURTHER PROCEEDINGS
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