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February 26, 1993



The opinion of the court was delivered by: MILTON I. SHADUR

Employers Insurance of Wausau ("Wausau") has filed this action against the United States under the Federal Tort Claims Act ("FTCA," 28 U.S.C. §§ 2671-2680). *fn1" Wausau challenges the determination, made by the Environmental Protection Agency ("EPA"), that Wausau had responsibility under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA," 42 U.S.C. §§ 9601-9660) *fn2" for the cleanup of contamination at a facility in Romulus, Michigan. Because Wausau had to spend over $ 2 million to carry out that cleanup, it advances three claims to recoup those costs, one sounding in malicious prosecution (Count I), another in abuse of process (Count II) and the third in negligence (Count III).

 In response the United States has moved to dismiss Wausau's action for lack of subject matter jurisdiction. Its motion is based on two limitations built into FTCA as exceptions to the government's waiver of sovereign immunity under that statute:

1. Section 2680(a)'s discretionary function provision and
2. Section 2680(h)'s preclusion of malicious prosecution and abuse of process claims except for those within the scope of a proviso enacted in 1974 (Pub. L. 93-253, § 2, 88 Stat. 50).

 Because the Supreme Court has twice spoken to the discretionary function issue in a definitive way in the past few years ( Berkovitz v. United States, 486 U.S. 531, 100 L. Ed. 2d 531, 108 S. Ct. 1954 (1988) and United States v. Gaubert, 113 L. Ed. 2d 335, 111 S. Ct. 1267 (1991)), and because that Section 2680(a) provision is potentially dispositive of the entire case while Section 2680(h) is not, this Court has directed the parties to limit their current attention to questions bearing on the discretionary function exception--eschewing any discussion of Section 2680(h) at least for the time being. Wausau has not heeded that direction in its just-tendered 44-page responsive memorandum, *fn3" but what it has said there about Section 2680(h) has only succeeded in talking itself out of court on its Counts I and II.

 As stated earlier, it was in 1974 that Section 2680(h) was amended to carve out an exception to the statute's previously-existing absolute prohibition against private actions against the government charging malicious prosecution, abuse of process and a group of other intentional torts. Here is the present version of the statute, with its original total bar having been modified by the entire proviso that follows:

(h) 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 investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 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 prosecution. For the purpose of this subsection, "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.

 Nothing in EPA's conduct, in the course of reaching its decision that required Wausau to clean up the contaminated property, involved any searches, any seizure of evidence or any arrests (or, for that matter, any other conduct even remotely approaching any such activity). Wausau nevertheless urges that the mere existence of such powers in EPA personnel is enough to trigger operation of the proviso.

 But Wausau's arguments on that score are wholly unpersuasive:

1. First Wausau points to CERCLA § 9606(a) as permitting EPA to "require the Attorney General of the United States to secure such relief as may be necessary to abate" what the same section labels as "an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility." To begin with, that is a somewhat misleading quotation from CERCLA § 9606(a). *fn4" But even if the statement is viewed as an accurate portrayal of EPA's powers, it is of course absurd to suggest that simply because EPA might be able to enlist the government's premier law enforcement officer to carry out CERCLA's statutory purposes, that would somehow convert EPA's people themselves into law enforcement officers. If anything, the conclusion to be drawn from that provision (even as Wausau portrays it) would point in exactly the opposite direction, for it would tend to confirm the nonexistence of such power in the EPA people on their own.
2. Wausau seeks to bootstrap from that same statutory provision (thus necessarily resting on a foundation built on sand) by pointing to this excerpt (found in S. Rep. No. 98-351, 98th Cong., 2d Sess. 51 (1984), reprinted in 1984 U.S.C.C.A.N. from the legislative history of the predecessor to CERCLA, the Resource Conservation and Recovery Act:
As under other environmental statutes, EPA has inherent authority under RCRA to initiate and conduct investigations under the criminal provisions of the statute and to refer the results of these investigations to the Attorney General for prosecution in appropriate cases.
But as will be discussed in a moment or two, it is not a fair reading of the Section 2680(h) proviso to treat the potential of investigative activity looking toward a criminal prosecution (that is, law enforcement activities in the traditional sense) by others as somehow triggering liability for claimed malicious prosecution and abuse of process for EPA's own ...

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