PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NICHOLAS IGNACIO,
Plaintiff-Appellant,
v. No. 10-2149
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Liam O’Grady, District Judge.
(1:09-cv-01178-LO-TRJ)
Argued: December 7, 2011
Decided: March 16, 2012
Before SHEDD, DIAZ, and FLOYD, Circuit Judges.
Reversed and remanded by published opinion. Judge Floyd
wrote the opinion, in which Judge Shedd and Judge Diaz
joined. Judge Diaz wrote a separate concurring opinion.
COUNSEL
ARGUED: Stephen Michael Terpak, TERPAK AND ASSO-
CIATES, PLLC, Arlington, Virginia, for Appellant. R. Joseph
Sher, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. Mac-
2 IGNACIO v.UNITED STATES
Bride, United States Attorney, Alexandria, Virginia, for
Appellee.
OPINION
FLOYD, Circuit Judge:
Kevin Lane, a Pentagon police officer, allegedly assaulted
Nicholas Ignacio, a contract security officer assigned to the
Pentagon, while they were stationed at a security checkpoint
for Pentagon employees. Ignacio sued the United States for
assault under the Federal Tort Claims Act (FTCA). The dis-
trict court granted summary judgment to the United States,
holding that because Lane was not "engaged in investigative
or law enforcement activities" when he allegedly assaulted
Ignacio, the United States retained sovereign immunity from
his claims. Ignacio now appeals.
We hold that 28 U.S.C. § 2680(h) waives the United States’
sovereign immunity regardless of whether an officer is
engaged in an investigative or law enforcement activity when
he commits an assault. Accordingly, we reverse and remand
for further proceedings.
I.
A.
The FTCA "waive[s] the sovereign immunity of the United
States for certain torts committed by federal employees."
FDIC v. Meyer, 510 U.S. 471, 475 (1994). Of particular rele-
vance here is (1) the Act’s intentional torts exception, which
retains the United States’ immunity in cases involving "[a]ny
claim arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract
IGNACIO v.UNITED STATES 3
rights," 28 U.S.C. § 2680(h), and (2) an exception to the
intentional torts exception, commonly known as "the law
enforcement proviso," which preserves the waiver of immu-
nity when certain named intentional torts are "acts or omis-
sions of investigative or law enforcement officers of the
United States Government."*Id.
B.
On December 2, 2009, while stationed at a security check-
point for Pentagon employees, Lane and Ignacio had a dis-
agreement over the caliber of an M-16 round. Initially, their
disagreement led only to a bet. It escalated, however, on
December 15, when they were again stationed at a security
checkpoint for Pentagon employees. Lane allegedly told Igna-
cio that he would "hurt him after work" and then pretended to
punch him in the face. As a result, Lane’s superior suspended
him for ten days.
Ignacio subsequently sued the United States under the
FTCA for assault. The United States moved for summary
judgment, arguing that the FTCA’s waiver of sovereign
immunity did not apply because Lane’s assault did not occur
(1) within the scope of his employment or (2) within the
course of law enforcement activity.
The district court granted the government’s motion. Con-
cluding that issues of fact existed regarding whether Lane
acted within the scope of his employment under Virginia law,
the district court declined to grant summary judgment on that
basis. Instead, it held that the law enforcement proviso waives
immunity only when a law enforcement officer commits a
*"For the purpose of [§ 2680(h)], ‘investigative or law enforcement
officer’ means 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). Here, the parties do not dispute that
Lane qualifies as an "investigative or law enforcement officer."
4 IGNACIO v.UNITED STATES
specified tort while "engaged in investigative or law enforce-
ment activities." Accordingly, it dismissed Ignacio’s claims
because it found as a matter of law that Lane was not engaged
in investigative or law enforcement activities during the
assault. On appeal, Ignacio argues that the law enforcement
proviso waives immunity whenever a law enforcement officer
acting within the scope of his employment commits an inten-
tional tort and that the district court erred in requiring that the
officer commit the tort in the course of an investigative or law
enforcement activity. We agree.
II.
We review questions of statutory interpretation de novo.
United States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010). "The
starting point for any issue of statutory interpretation . . . is
the language of the statute itself." United States v. Bly, 510
F.3d 453, 460 (4th Cir. 2007). "In that regard, we must first
determine whether the language at issue has a plain and
unambiguous meaning with regard to the particular dispute
. . . and our inquiry must cease if the statutory language is
unambiguous and the statutory scheme is coherent and consis-
tent." Id. (omission in original) (quoting United States v.
Hayes, 482 F.3d 749, 752 (4th Cir. 2007), rev’d on other
grounds, 555 U.S. 415 (2009)) (internal quotation marks
omitted). "We determine the ‘plainness or ambiguity of statu-
tory language . . . by reference to the language itself, the spe-
cific context in which that language is used, and the broader
context of the statute as a whole.’" United States v.
Thompson-Riviere, 561 F.3d 345, 354–55 (4th Cir. 2009)
(omission in original) (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 341 (1997)).
The portion of the FTCA pertinent to this case reads as fol-
lows:
The provisions of this chapter [that waive sovereign
immunity] and section 1346(b) shall not apply to—
IGNACIO v.UNITED STATES 5
...
. . . Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution,
abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights: Provided,
That, with regard to acts or omissions of investiga-
tive or law enforcement officers of the United States
Government, the provisions of this chapter and sec-
tion 1346(b) of this title shall apply to any claim
arising, on or after the date of the enactment of this
proviso, out of assault, battery, false imprisonment,
false arrest, abuse of process, or malicious prosecu-
tion.
28 U.S.C. § 2680(h).
The plain language of the law enforcement proviso stipu-
lates two conditions for its application: (1) an individual fit-
ting the definition of an "investigative or law enforcement
officer" must commit an intentional tort, and (2) the claim
must arise "out of assault, battery, false imprisonment, false
arrest, abuse of process, or malicious prosecution." See Harris
v. United States, 677 F. Supp. 403, 405 (W.D.N.C. 1988).
Notably absent is language requiring an officer to commit the
tort in the course of an investigative or law enforcement activ-
ity or, for that matter, any language regarding the context in
which an officer must commit the tort. Id.
"[C]ourts must construe statutes as written, [and] not add
words of their own choosing," Barbour v. Int’l Union, 640
F.3d 599, 623 (4th Cir. 2011) (en banc) (Agee, J., concurring
in the judgment); see also United States v. Deluxe Cleaners
& Laundry, Inc., 511 F.2d 926, 929 (4th Cir. 1975) ("[W]e do
not think it permissible to construe a statute on the basis of a
mere surmise as to what the Legislature intended and to
assume that it was only by inadvertance that it failed to state
something other than what it plainly stated." (quoting Vroon
6 IGNACIO v.UNITED STATES
v. Templin, 278 F.2d 345, 348–49 (4th Cir. 1960)) (internal
quotation marks omitted)). Accordingly, we decline to import
a requirement that an officer commit the tort in the course of
an investigative or law enforcement activity and hold instead
that the law enforcement proviso waives immunity whenever
the two conditions specified by the plain language are satis-
fied.
We hasten to note that the proviso does not relax the
FTCA’s jurisdictional mandate requiring that torts be commit-
ted within the scope of employment, nor does it alter the
FTCA’s reliance on applicable state law, which also generally
includes a scope of employment requirement, as the basis for
defining an underlying cause of action. See 28 U.S.C.
§ 1346(b)(1); Kerns v. United States, 585 F.3d 187, 194–95
(4th Cir. 2009). Rather, the proviso declares that "the provi-
sions of [Chapter 171] and section 1346(b) . . . shall apply"
when any one of six named torts is committed by an investi-
gative or law enforcement officer. § 2680(h). We are confi-
dent that had Congress intended to impose an additional
hurdle for litigants bringing claims against the United States
for torts committed by its investigative and law enforcement
officers, it would have explicitly stated as much.
We recognize that district courts and some of our sister cir-
cuits have imported an additional bar based on analyses of the
proviso’s legislative history and concerns that disparate treat-
ment of federal employees may result if the proviso applies
too broadly. See, e.g., Orsay v. U.S. Dep’t of Justice, 289 F.3d
1125, 1133-35 (9th Cir. 2001); Pooler v. United States, 787
F.2d 868, 871-72 (3d Cir. 1986); Murphy v. United States,
121 F. Supp. 2d 21, 24-25 (D.D.C. 2000); Emp’rs Ins. of
Wausau v. United States, 815 F. Supp. 255, 257-60 (N.D. Ill.
1993). Nevertheless, we note that these courts relented to sec-
ondary modes of interpretation without first establishing the
ambiguity of the statutory text. Where, as here, the text of the
statute is unambiguous, we should not engage in an analysis
of legislative history to find ambiguity. Conn. Nat’l Bank v.
IGNACIO v.UNITED STATES 7
Germain, 503 U.S. 249, 253–54 (1992) ("We have stated time
and again that courts must presume that a legislature says in
a statute what it means and means in a statute what it says
there. When the words of a statute are unambiguous, then, this
first canon is also the last: ‘judicial inquiry is complete.’"
(citations omitted) (quoting Rubin v. United States, 449 U.S.
424, 430 (1981))). Accordingly, we hold that 28 U.S.C.
§ 2680(h) waives immunity whenever an investigative or law
enforcement officer commits one of the specified intentional
torts, regardless of whether the officer is engaged in investiga-
tive or law enforcement activity.
III.
Because the district court determined that issues of fact
exist regarding whether Lane acted within the scope of his
employment under Virginia law, and because the parties did
not raise the scope of employment issue in their briefs, we
decline to discuss it here.
For the foregoing reasons, we reverse the district court’s
grant of summary judgment and remand the case for further
proceedings.
REVERSED AND REMANDED
DIAZ, Circuit Judge, concurring:
I join in full Judge Floyd’s well-reasoned opinion but write
separately to address the troubling inconsistency produced by
application of the Federal Torts Claim Act ("FTCA") provi-
sions at issue in this case. We hold today that the FTCA
waives sovereign immunity for the intentional torts of law
enforcement officers, regardless of whether the tort occurred
while the officer was engaged in a law enforcement activity.
Our decision leads to the anomalous situation in which the
federal government could be liable for the actions of a law
enforcement officer but would be immune from liability for
8 IGNACIO v.UNITED STATES
the same conduct committed by another federal employee
under the same circumstances. Nevertheless, although such a
result can be criticized as inconsistent and unreasonable, I
cannot say that it is so absurd as to allow us to alter the mean-
ing—as other courts have—of an otherwise unambiguous
statute.
The FTCA provides that the United States is liable for its
torts "in the same manner and to the same extent as a private
individual under like circumstances." 28 U.S.C. § 2674. This
waiver of sovereign immunity is subject to several qualifica-
tions, including one for intentional torts committed by federal
employees. Id. § 2680(h). The qualification retaining sover-
eign immunity for intentional torts contains a special proviso,
however, for law enforcement officers. Specifically, the law
enforcement proviso waives sovereign immunity "with regard
to acts or omissions of investigative or law enforcement offi-
cers . . . [for] any claim arising . . . out of assault, battery,
false imprisonment, false arrest, abuse of process, or mali-
cious prosecution." Id. The proviso 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." Id.
As Judge Floyd explains, "[t]he plain language of the law
enforcement proviso stipulates two conditions for its applica-
tion: (1) an individual fitting the definition of an ‘investiga-
tive or law enforcement officer’ must commit an intentional
tort, and (2) the claim must arise ‘out of assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
prosecution.’ " Panel Op. at 5 (citing Harris v. United States,
677 F. Supp. 403, 405 (W.D.N.C. 1988)).
This largely unqualified waiver of sovereign immunity for
law enforcement officers could, as demonstrated by this case,
lead to inconsistent results. Here, Officer Kevin Lane alleg-
edly assaulted Nicholas Ignacio through verbal insults and
physical intimidation. The alleged assault occurred while the
pair was working at a Pentagon security checkpoint. The con-
IGNACIO v.UNITED STATES 9
frontation had nothing to do with Lane’s duties as a Pentagon
police officer, amounting to little more than a personal dispute
between coworkers. Under the law enforcement proviso, how-
ever, this workplace kerfuffle has exposed the United States
to potential liability, whereas the same exchange involving
federal employees who do not wear a badge and carry a
weapon would not have.
The relevant legislative history arguably suggests that Con-
gress intended for the law enforcement proviso to target pri-
marily intentional torts committed by officers while engaged
in law enforcement activities. See, e.g., S. Rep. No. 93-588,
93d Cong., 2d Sess. 3 (1973), reprinted in 1974 U.S.C.C.A.N.
2789, 2792 (stating that the purpose of the proviso was to
"provid[e] a remedy against the Federal Government for inno-
cent victims of federal law enforcement abuses"). Congress
passed the proviso in response to a series of "no-knock" raids
carried out by federal narcotics agents in Collinsville, Illinois.
Id. (explaining that the purpose of the proviso was to provide
an "effective legal remedy against the Federal Government
for the actual physical damage [and] the pain, suffering and
humiliation to which the Collinsville families were sub-
jected").
Highlighting the "arbitrary distinction" between investiga-
tive and law enforcement officers and other federal employees
created by strict application of the law enforcement proviso,
several courts have limited the scope of the FTCA’s waiver
of sovereign immunity to only those intentional torts commit-
ted by an officer while engaged in a law enforcement activity.
Orsay v. U.S. Dep’t of Justice, 289 F.3d 1125, 1134 (9th Cir.
2002); see also Pooler v. United States, 787 F.2d 868, 871-72
(3d Cir. 1986); Murphy v. United States, 121 F. Supp. 2d 21,
24-25 (D.D.C. 2000). For example, in Pooler, the Third Cir-
cuit determined that the waiver’s reach was limited to torts
committed by officers during the course of a search, seizure,
or arrest. 787 F.2d at 872. Similarly, in Orsay, the Ninth Cir-
cuit held that the law enforcement proviso "reaches only those
10 IGNACIO v.UNITED STATES
claims asserting that the tort occurred in the course of investi-
gative or law enforcement activities." 289 F.3d at 1136. Con-
fronting a situation similar to ours in which the plaintiff levied
allegations of assault based on a series of workplace threats,
the Orsay court reasoned that "[t]o construe [the law enforce-
ment proviso] otherwise—as reaching these workplace
torts—would . . . produce the bizarre result that suit lies
against the United States when one federal law enforcement
officer punches another in the office, but not when other fed-
eral employees engage in the same conduct." Id. at 1134.
As tempting as it is to follow the lead of our sister circuits,
settled principles of statutory construction prevent us from
limiting the waiver of immunity contained in the law enforce-
ment proviso. To begin with, absent an ambiguity in the
words of a statute, our analysis begins and ends with the stat-
ute’s plain language. In re Sunterra Corp., 361 F.3d 257, 265
(4th Cir. 2004). We have recognized an exception to the plain
meaning rule for the " ‘exceptionally rare’" instance in which
applying it results in an absurd outcome. Id. (quoting Hillman
v. I.R.S., 263 F.3d 338, 342 (4th Cir. 2001)). In that regard,
we have explained that "[f]or this exception to apply . . . the
absurdity ‘must be so gross as to shock the general moral or
common sense.’ " Md. State Dep’t of Educ. v. U.S. Dep’t of
Veterans Affairs, 98 F.3d 165, 169 (4th Cir. 1996) (quoting
Crooks v. Harrelson, 282 U.S. 55, 59–60 (1930)); see also
Sunterra, 361 F.3d at 268 ("In assessing whether a plain read-
ing of a statute implicates the absurdity exception . . . the
issue is not whether the result would be ‘unreasonable,’ or
even ‘quite unreasonable,’ but whether the result would be
absurd." (citation omitted)). Finally, we have explained that
"if it is plausible that Congress intended the result compelled
by the Plain Meaning Rule, we must reject an assertion that
such an application is absurd." Id. (citing Sigmon Coal Co. v.
Apfel, 226 F.3d 291, 308 (4th Cir. 2000)).
Applying these principles, the plain meaning of the law
enforcement proviso compels the holding we reach today. See
IGNACIO v.UNITED STATES 11
Panel Op. at 6 ("[W]e decline to import a requirement that an
officer commit the tort in the course of an investigative or law
enforcement activity and hold instead that the law enforce-
ment proviso waives immunity whenever the two conditions
specified by the plain language are satisfied.").* Those courts
that have strayed from the plain language to import a limita-
tion not otherwise expressed in the statute have failed to per-
suasively explain how the text of the statute admits of any
ambiguity. In Pooler, the Third Circuit did not address
whether the statute was ambiguous but instead merely "read"
the limitation into the statute to better accord with its view of
what "Congress intended." 787 F.2d at 872. In Orsay, the
Ninth Circuit found that the statute was ambiguous because it
was "reasonably susceptible" to multiple interpretations but
failed to explain how the meaning of the language employed
in the statute was anything other than plain. 289 F.3d at 1134.
Noting that "any ambiguities in the scope of the government’s
waiver must be construed in favor of immunity," the court
proceeded directly to a discussion of Congress’s intent and
the legislative history, without addressing the plain language
of the statute. Id. at 1133–35.
I agree with Judge Floyd, however, that "[w]here as here,
the text of the statute is unambiguous, we should not engage
*As Judge Floyd notes, "the proviso does not relax the FTCA’s jurisdic-
tional mandate requiring that torts be committed within the scope of
employment." Panel Op. at 6. The scope of employment requirement,
however, may do little to remedy the incongruity of treating law enforce-
ment officers differently from other federal employees when assessing the
sovereign’s liability under the FTCA. If anything, resorting to state law to
determine whether a federal employee’s conduct is within the scope of
employment is likely to lead to disparate results based on differences in
the law from state to state. Moreover, as is the case here, the scope of
employment question may present factual disputes that preclude early res-
olution. In short, the scope of employment requirement is no substitute for
a limiting principle that avoids the inconsistent application of sovereign
immunity created by the law enforcement proviso. Nevertheless, I agree
with my colleagues that our authority does not extend so far as to impose
such a limiting principle in this case.
12 IGNACIO v.UNITED STATES
in an analysis of legislative history to fabricate ambiguity."
Panel Op. at 6. Instead, we must apply the plain meaning of
the statute unless the result would be absurd. While the incon-
sistent treatment of investigative and law enforcement officers
and other federal employees may well be arbitrary and unrea-
sonable, I cannot say that the result is so absurd as to "shock
the general moral or common sense." See Md. State Dep’t of
Educ., 98 F.3d at 169 (quotation omitted). To the contrary,
although I am troubled by the manner in which the statute
parses liability for workplace torts committed by federal
employees, it is certainly plausible that Congress intended to
hold law enforcement officers to a higher standard given the
important trust society places in them. When the language of
a statute is subject to a plausible construction, we are com-
pelled to follow the plain meaning. See Sunterra, 361 F.3d at
268. Accordingly, I concur in Judge Floyd’s opinion.