United States District Court, Southern District of New York
July 15, 1991
LAWRENCE WILSON, PLAINTIFF,
THE UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action pursuant to the Federal Tort
Claims Act (the "FTCA"), 28 U.S.C. § 1346(b), 2680 et seq.
(1988). Plaintiff was sentenced to serve an aggregate of nine
years for interstate transportation of stolen money and use of
the mails in a scheme to defraud. He was paroled on May 5, 1982
and placed in a parole category requiring a high level of
On January 22, 1986, plaintiff was arrested for parole
violations. A hearing was held and it was determined that
plaintiff had violated his parole. That decision was successfully
challenged in the United States District Court for the Northern
District of Texas because the Court found that plaintiff had been
deprived of a neutral and detached hearing. At a subsequent
hearing, however, plaintiff was again found guilty of violating
Plaintiff now claims that the United States Parole Commission
(the "Commission") improperly revoked his parole and that certain
actions taken by parole officers caused him undue stress which
led him to close his business several months before he was
reincarcerated. See Deposition of Lawrence Wilson at 8.
Defendant moves to dismiss the second amended complaint, or in
the alternative, for summary judgment. The Court has considered
the evidentiary materials submitted by the defendant and has
given plaintiff notice of its intent to treat the motion as one
for summary judgment and an opportunity to submit evidentiary
materials. For the reasons that follow and for the reasons given
on the record at Oral Argument, the defendant's motion for
summary judgment is granted.
The FTCA represents a limited waiver of sovereign immunity by
the United States for certain "claims . . . for injury or loss of
property, or personal injury or death caused by the negligent or
wrongful act or omission of an employee of the Government."
28 U.S.C. § 1346(b) (1988). The FTCA also sets out certain
categories of claims that are excepted from the purview of the
Act. See Lambertson v. United States, 528 F.2d 441, 444 (2d
Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d
374 (1976). One of these, the discretionary function exception,
bars any claims against the United States based upon the
performance of a discretionary function or duty on the part of a
federal employee or agency, even if that discretion is abused.
28 U.S.C. § 2680(a) (1988). See United States v. Varig Airlines,
467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).
Defendant asserts that plaintiff's claims to the extent that
they are based on the Commission's decision to revoke his parole
fall squarely within the discretionary function exception. The
Court agrees. The Commission's decisions concerning parole
clearly constitute an exercise of its discretionary authority.
See 18 U.S.C. § 4214(d) (1988). See United States v.
Addonizio, 442 U.S. 178, 188, 99 S.Ct. 2235, 2242, 60 L.Ed.2d
805 (1979); Taitt v. United States, 770 F.2d 890, 894 (10th
Cir. 1985). Since "Congress wished to prevent judicial
`second-guessing' of legislative and administrative decisions
grounded in social, economic, and political policy through the
medium of an action in tort," Varig, 467 U.S. at 814, 104 S.Ct.
at 2765, plaintiff's claims arising out of the decision to revoke
parole cannot be brought under the FTCA.
Plaintiff's claims for false imprisonment and malicious
prosecution do not fall within the discretionary function
exception of the FTCA. However, these claims are barred by the
intentional tort exception of the FTCA which excludes claims
arising out of, inter alia, assault, battery, false arrest and
malicious prosecution,*fn1 so long
as these torts are not committed by a law enforcement officer of
the United States Government. 28 U.S.C. § 2680(h) (1988).
Section 2680(h) defines a 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 violation of
Federal law." Parole officers are not authorized by statute or
regulation to execute searches, to seize evidence, or to make
arrests. See Declaration of Michael Stover ("Stover Decl.") at
¶ 3 (General Counsel of the United States Parole Commission).
When supervising a parolee, if the officer has probable cause to
believe that the parolee has violated the conditions of his
release, the officer cannot arrest the parolee but rather must
recommend to the Parole Commission that a warrant be issued. Id.
See 18 U.S.C. § 4213 (1988)*fn2; 28 C.F.R. § 2.46. Indeed, the
only time a parole officer can seize contraband from a parolee is
if the contraband is observed in plain view during the course of
the officer's normal contacts with the parolee and the parolee
gives his consent to the seizure. 28 C.F.R. § 2.40(a)(12); Parole
Commission Procedures Manual at 113, ¶ 2.40-14(a), (b); Stover
Decl. at ¶ 4. This limited authority to seize evidence is not
sufficient to bring parole officers within the definition of "law
enforcement officers" under the FTCA. See e.g., E.E.O.C. v.
First Nat. Bank of Jackson, 614 F.2d 1004, 1008 (5th Cir. 1980),
cert. denied, 450 U.S. 917, 101 S.Ct. 1361, 67 L.Ed.2d 342
(1981) (E.E.O.C. agents' authority to have access to evidence
does not give rise to liability); Solomon v. United States,
559 F.2d 309, 310 (5th Cir. 1977) (military exchange security guards
are not law enforcement officers); Aronson v. United States,
595 F. Supp. 178, 180 (D.Pa.), aff'd, 774 F.2d 1150 (3d Cir.
1984) (government attorneys are not law enforcement officers);
Art Metal-U.S.A. v. United States, 577 F. Supp. 182, 184 (D.D.C.
1983), aff'd, 753 F.2d 1151 (1985) (inspector general is not
law enforcement officer even though he caused subpoenas to
Plaintiff contends that since the same individual can act as
both a probation officer and a parole officer, see 18 U.S.C. § 3606,
3653,*fn3 that parole officers must also fall within the
meaning of "law enforcement officers," merely because probation
officers are concededly law enforcement officers under the FTCA.
However, the statutes regulating probation and parole officers
demonstrate an intent by Congress to treat these two functions
distinctly.*fn4 Compare 18 U.S.C. § 3601-56 with
18 U.S.C. § 4201-18. Release on probation involves a different agency,
different statutes and different regulations than release on
Nor can there be any question as to the validity of the
regulations which confer or withhold enforcement powers on an
individual serving in both capacities, depending upon the
capacity in which he is acting. Those regulations constitute a
"permissible construction" of the statutes establishing the
Parole Commission and are therefore "sufficiently reasonable" to
require judicial deference to agency interpretation. Detsel
v. Sullivan, 895 F.2d 58, 62 (2d Cir. 1990) (citing Chevron
U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984)). It
follows that since parole officers are not "law enforcement
officers" within the meaning of the FTCA, plaintiff's claims must
Accordingly, defendant's motion for summary judgment is
It is SO ORDERED.