                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                              )
VINCENT EDWARDS,                              )
                                              )
               Plaintiff,                     )
                                              )
         v.                                   )           Civil Action No. 15-cv-1418 (TSC)
                                              )
UNITED STATES OF AMERICA,                     )
                                              )
                                              )
               Defendant.                     )
                                              )

                                  MEMORANDUM OPINION

         Plaintiff Vincent Edwards brings this action against the United States of America

asserting that the District of Columbia Court Services and Offender Supervision Agency

(“CSOSA”) negligently detained him for thirty days after a no probable cause parole violation

finding. Defendant has filed a Motion to Dismiss. (ECF No. 9). For the reasons set forth below,

the court will GRANT the motion.

A. BACKGROUND

         The United States Marshals Service arrested Plaintiff on October 29, 2013 for an alleged

probation violation. (Compl. ¶ 5). On November 12, 2013, a court found that there was no

probable cause to support a finding that Plaintiff had violated his parole and ordered his

immediate release, but he ended up being held for an additional thirty days and was released on

December 13, 2013. (Id. ¶¶ 7–8). Plaintiff alleges that CSOSA “negligently caused his over

detention by losing his paperwork” and he brings claims pursuant to the “tort claims act.” (Id. ¶¶

4, 9).




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       Defendant seeks dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of

subject matter jurisdiction, arguing that the government has not waived its sovereign immunity

for Plaintiff’s “negligence” claims.

B. STANDARD OF REVIEW

       In considering a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a court

“must review the complaint liberally, granting the plaintiff the benefit of all inferences that can

be derived from the facts alleged.” Disner v. United States, 888 F. Supp. 2d 83, 87 (D.D.C.

2012)(citing Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004)). However, “the Court need

not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts

alleged in the complaint, nor must the Court accept plaintiff’s legal conclusions.” Speelman v.

United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006) (citation omitted). “The party claiming

subject matter jurisdiction bears the burden of demonstrating that such jurisdiction exists.”

Stoddard v. Wynn, 68 F. Supp. 3d 104, 110 (D.D.C. 2014) (citing Khadr v. United States, 529

F.3d 1112, 1115 (D.C. Cir. 2008)).

C. ANALYSIS

       Ordinarily, the United States is

       immune from suit unless there is explicit statutory waiver of its sovereign
       immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 114 S. Ct. 996, 127 L. Ed. 2d
       308 (1994) (“Absent a waiver, sovereign immunity shields the Federal
       Government and its agents from suit.”). “Sovereign immunity is jurisdictional in
       nature,” so a claim barred by sovereign immunity lacks subject matter jurisdiction
       and may be dismissed under a 12(b)(1) motion. Id.

       One avenue for statutory waiver of sovereign immunity is the Federal Tort Claims
       Act (“FTCA”). The FTCA operates as a limited waiver of sovereign immunity,
       rendering the United States amenable to suit for certain . . . claims, subject to
       various exceptions set forth in 28 U.S.C. § 2680.




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Scruggs v. Bureau of Engraving & Printing, Civil Case No. 15-2205 (RJL), 2016 WL 4098314,

at *3 (D.D.C. Aug. 1, 2016) (footnote and some citations omitted). Thus, as a general

proposition, the government is liable for some claims under the FTCA “in the same manner and

to the same extent as a private individual under like circumstances.” Hornbeck Offshore

Transp., LLC v. United States, 563 F. Supp. 2d 205, 210 (D.D.C. 2008) (citing 28 U.S.C. §§

2674, 1346(b)(1)), aff’d, 569 F.3d 506 (D.C. Cir. 2009).

       There are exceptions, however, to this general proposition that the government is subject

to suit “in the same manner” as a private individual. One of those exceptions

       preserves sovereign immunity in claims against the government for certain
       intentional torts, See 28 U.S.C. § 2680(h) (sovereign immunity bars “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”). This is known as the “intentional tort
       exception.” Millbrook, 133 S. Ct. at 1443.

       The intentional tort exception has its own exception, known as the “law
       enforcement proviso,” wherein sovereign immunity is waived. Id. This proviso
       “extends the waiver of sovereign immunity to claims for six intentional torts,
       including [false imprisonment], when they are based on the acts of omissions of
       law enforcement officers.” Id. Therefore, while the government retains sovereign
       immunity against suits for most intentional torts, [a lawsuit is permissible] if one
       of six enumerated torts [including false imprisonment] was committed by a law
       enforcement or investigative officer “acting within the scope of his office or
       employment.” Id. at 1445.

Scruggs, 2016 WL 4098314, at *3 (emphasis added).

       Defendant argues that Plaintiff’s claims are not actionable under the FTCA because: (1)

the FTCA bars claims for false imprisonment; and (2) the officials who engaged in the alleged

misconduct were not “investigative or law enforcement officers.”

       1. Plaintiff’s Claim Sounds In False Imprisonment.

       In response to Defendant’s assertion that dismissal is appropriate because Plaintiff’s

claims—although labeled negligence claims—are instead claims for false imprisonment and

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therefore not actionable under the FTCA, Plaintiff argues that Defendant has mischaracterized

the nature of his claim. His claim is not one for false arrest or false imprisonment, he argues,

because he was never unlawful detained: he “was never imprisoned without legal justification,

nor did anyone intentionally cause him to be imprisoned without his consent.” (Pls. Br. pp. 3-4).

Instead, his allegation is that Defendant was negligent by losing his paperwork, which caused a

delay in the processing of his release. (Id.) In other words, Plaintiff appears to argue that he is

not bringing a false arrest, false imprisonment or other intentional tort claim, which is barred by

the FTCA, but is instead pursuing an “over-detention” negligence claim relating to a lawful

arrest and therefore he may proceed “in the same manner and to the same extent as a private

individual under like circumstances.” See 28 U.S.C. § 2674.

       Plaintiff’s argument is unpersuasive. Jurisdictional defects cannot simply be eliminated

by creative pleading. As the D.C. Circuit has noted, “a litigant cannot circumvent the FTCA by

the simple expedient of drafting in terms of negligence a complaint that in reality is a claim as to

which the United States remains immunized.” Art Metal-U.S.A., Inc. v. United States, 753 F.2d

1151, 1160 n.16 (D.C. Cir. 1985) (quoting Johnson v. United States, 547 F.2d 688, 691–92 (D.C.

Cir. 1976) (alterations omitted)). “Although the court must accept the plaintiff’s version of the

facts as true, the court need not accept “the plaintiff’s characterization of the facts.” Shuler v.

United States, 448 F. Supp. 2d 13, 18–19 (D.D.C. 2006) (emphasis in original) (citation omitted),

aff’d, 531 F.3d 930 (D.C. Cir. 2008).

       Snow-Erlin v. United States, 470 F.3d 804 (9th Cir. 2006), also involved an “over-

detention” claim. In that case, the plaintiff was arrested in 1996 for driving under the influence

(“DUI”) and sentenced to six months imprisonment. Id. at 806. Subsequently, the Parole

Commission revoked plaintiff’s parole from a prior sentence and added twenty months to the



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DUI sentence. Id. The following year, plaintiff filed a successful habeas petition challenging the

Parole Commission’s jurisdiction. Id. The court found that the plaintiff’s parole had actually

expired by the time of his DUI arrest and therefore the Commission had no jurisdiction to impose

the additional term of imprisonment. Id. Plaintiff subsequently filed a “negligence” claim,

where the “only harm alleged [wa]s that the United States kept [plaintiff] imprisoned for 311

days too long” on the DUI charge due to the miscalculation of his parole expiration date. Id. at

808-9, 807. The Ninth Circuit upheld the district court’s dismissal of the plaintiff’s claims,

noting that he could not “sidestep the FTCA’s exclusion of false imprisonment claims by suing

for the damage of false imprisonment under the label of negligence.” Id. at 809.

       Like the plaintiff in Snow-Erlin, Plaintiff here also challenges his “over-detention” (see

Compl. ¶ 10), and alleges that the agency’s negligence caused the over-detention. And like the

plaintiff in Snow-Erlin, Plaintiff’s “negligence” claim in this case is barred.

       Not only does the FTCA bar false imprisonment claims, but it also explicitly bars “[a]ny

claim arising out of . . . false imprisonment,” 28 U.S.C. § 2680(h)(emphasis added), whether or

not labeled as such. “Claims for false imprisonment and all claims ‘arising out of’ false

imprisonment, though labeled something else, are not actionable.” Stoddard v. Wynn, 68 F.

Supp. 3d 104, 115 (D.D.C. 2014) (emphasis added) (citations omitted). A lawful arrest or

detention that later turns into an unlawful detention involves a legal claim that “arises out of”

false imprisonment, because the foundation of such a claim is the unlawful deprivation of liberty.

See Gabrou v. May Dep’t Stores Co., 462 A.2d 1102, 1104 (D.C. 1983) (“‘In this jurisdiction,

the gravamen of a suit for false arrest or false imprisonment is an unlawful detention.’”) (citation

omitted); MacDonald v. Schenkel, 125 F.2d 737 (D.C. Cir. 1941) (false imprisonment claim by

plaintiff against his brother-in-law, after the brother-in-law agreed to drive the plaintiff home,



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but later took the plaintiff to the police station against his will); Wormley v. United States, 601 F.

Supp. 2d 27 (D.D.C. 2009) (FTCA claim for false imprisonment based on over-detention where

plaintiff was lawfully taken into custody, but remained in custody for close to five additional

months after serving her sentence); Smith v. D.C., 149 F. Supp. 3d 128 (D.D.C. 2015) (false

imprisonment claim by plaintiff who was ordered released as of March 18, 2014, but was not

freed until April 10, 2014); Joyner v. Sibley Mem’l Hosp., 826 A.2d 362 (D.C. 2003) (false

imprisonment claim by hospital employee who voluntarily entered a room for questioning, but

was later prevented from leaving); Douglas v. United States, 796 F. Supp. 2d 1354, 1365 (M.D.

Fla. 2011) (“Even though this Court finds that the government had probable cause to initiate the

removal proceeding in 2005, a lawful detention can become unlawful at the point when the

continued detention is no longer reasonable.”) (citing Caban v. United States, 728 F.2d 68 (2d

Cir. 1984)).

       Plaintiff points to no legal authority to support his proposition that he may proceed with

his claim simply because his initial dentition was lawful. Instead, he simply quotes from

Edwards v. Okie Dokie, Incorporated, 473 F. Supp. 2d 31, 44 (D.D.C. 2007), in which the court

set forth the elements for a false arrest/false imprisonment claim and examined whether the

police had probable cause to make an arrest. Nothing about that case is relevant to the dispute at

issue here.

       2. CSOSA Officers Are Not “Investigative or Law Enforcement Officers.”

       While “the FTCA retains the government’s immunity from suits predicated on claims

arising out of . . . false imprisonment, the government’s sovereign immunity is nevertheless

waived if the challenged conduct is committed by an ‘investigative or law enforcement officer.’”

Ford v. Mitchell, 890 F. Supp. 2d 24, 34-35 (D.D.C. 2012) (citing 28 U.S.C. § 2680(h)).



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Therefore, in light of the court’s finding that Plaintiff’s claims sound in false imprisonment, the

court will only have subject matter jurisdiction over his FTCA claim if the CSOSA Defendants

fall within the “investigative or law enforcement officer” exception under Section 2680(h).

       The court agrees with the holding in Ford v. Mitchell, 890 F. Supp. 2d 24, 35 (D.D.C.

2012) (citing 28 U.S.C. § 2680(h)), that the “‘investigative or law enforcement officer exception’

does not apply to the CSOSA . . . Defendants. The FTCA 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.’” However,

“CSOSA officers do not have the authority to make arrests, and only have authority to

recommend that the [United States Parole Commission] issue a warrant.” Ford, 890 F. Supp. 2d

at 35; see also Banks v. Harrison, 864 F. Supp. 2d 142, 147 n.2 (D.D.C. 2012) (noting that

CSOSA employee was “not a law enforcement officer within the definition of the FTCA”

because he had no “authority to ‘execute searches, to seize evidence, or to make arrests for

violations of Federal law’”); Wilson v. United States, 959 F.2d 12, 15 (2d Cir. 1992)(“[P]arole

officers lack any of the powers belonging to investigative or law enforcement personnel.”).

       Plaintiff cites to Millbrook v. United States, 133 S. Ct. 1441 (2013), which he contends

“gives a broader meaning to the phrase ‘investigative or law enforcement officer’ than whether

or not the official had arrest power.” (Pls. Br. 5.) However, Plaintiff misunderstands the

Supreme Court’s holding in that case. In Millbrook, the Court held that “the waiver effected by

the [investigative or law enforcement provision of § 2680(h)] extends to acts or omissions of law

enforcement officers that arise within the scope of their employment, regardless of whether the

officers are engaged in investigative or law enforcement activity, or are executing a search,

seizing evidence, or making an arrest.” Millbrook, 133 S. Ct. at 1446 (emphasis added). This



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means only that law enforcement officers need not be actively “executing a search, seizing

evidence, or making an arrest” in order for the waiver to apply. See id. at 1445-46. Thus,

Millbrook is inapplicable to the facts presented here.

D. CONCLUSION

        For the reasons explained above, Plaintiff’s claim—which sounds in false imprisonment

despite being couched in terms of negligence—is barred by the intentional tort exception of the

FTCA, and CSOSA officers do not fall within the “investigative or law enforcement” exception.

Accordingly, the court will GRANT Defendant’s motion to dismiss for lack of subject matter

jurisdiction.



Date: September 30, 2016



                                              Tanya S. Chutkan
                                              TANYA S. CHUTKAN
                                              United States District Judge




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