Government Discretion Advised (even if It's Unconstitutional): How the Eleventh Circuit Has Expanded the United States's Immunity from Tort Suits
| Publication year | 2022 |
Government Discretion Advised (Even If It's Unconstitutional): How the Eleventh Circuit Has Expanded the United States's Immunity from Tort Suits
John Rodriquez
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Mackie Shivers, a sixty-four-year-old man, was stabbed in the eye by his mentally-ill cellmate with a pair of scissors.1 Although the attack left Shivers permanently blind, he received no legal remedy to compensate him for his injuries.2 This result is due, at least in part, to the United States Court of Appeals for the Eleventh Circuit's decision to interpret the discretionary function exception to the Federal Torts Claim Act (FTCA)3 in a broader way than virtually all of its sister circuits.4 The holding by the Eleventh Circuit in Shivers v. United States bars FTCA claims under the exception even for unconstitutional conduct by government employees so long as the conduct was discretionary.5
Congress passed the FTCA in order to hold the government liable for the misconduct of government employees acting within the scope of their employment.6 The discretionary function exception to the FTCA was
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intended to prevent judicial second-guessing of legislative decisions that have their roots in public policy.7 By holding that this exception applies to even unconstitutional conduct, the Eleventh Circuit has left many future tort victims without a proper redress for injuries caused by the misfeasance of government employees and has implied that there is some kind of policy rationale for such employees to be given discretion to violate the Constitution.
Because the Supreme Court of the United States has yet to rule on whether unconstitutional conduct falls under the discretionary function exception, the circuit courts have been left to answer the question on their own. Virtually every circuit that has broached the issue presented in Shivers has held that unconstitutional conduct is not protected by the exception.8 The Eleventh Circuit has now joined the United States Court of Appeals for the Seventh Circuit in holding the opposite.9
Mackie Shivers was a sixty-four-year-old inmate at a federal prison in Florida.10 Prison officials assigned Marvin Dodson, a twenty-six-year-old, mentally unstable inmate to share Shivers's cell. Both inmates were imprisoned for cocaine drug convictions. Eight months passed with no incident between the two cellmates until Dodson stabbed Shivers in the eye with a pair of scissors while Shivers was asleep. The attack left Shivers permanently blind in that eye.11
After the incident, Shivers pursued his available administrative remedies. Another inmate, Gordan Reid, helped him in this endeavor.12 Both men agreed that Shivers completed the first three steps of the process—he informed the prison staff of the issue, submitted a written Request for Administrative Remedy (form BP-9) to the warden, and then submitted an Administrative Remedy Appeal (form BP-10) to the designated regional director. Shivers received denials at each stage. Shivers believed he had properly submitted an appeal to the General Counsel at Bureau of Prisons' (BOP) Central Office—the final step of the
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administrative process—but the government claimed at trial that the form was never received.13
Under the impression he had exhausted all administrative remedies, Shivers then brought a FTCA and a Bivens action14 against the United States and five prison employees.15 Shivers's complaint alleged that the prison officials knew or should have known that Dodson was showing violent tendencies toward other inmates and had a history of assaulting his cellmates before the man was assigned to Shivers's cell. Shivers's complaint also alleged that he informed prison officials, prior to the stabbing, that he was afraid for his safety. He claimed that the prison officials choice to move Dodson into his cell was negligent and that his right to be free from cruel and unusual punishment was violated.16
The United States District Court for the Middle District of Florida dismissed Shivers's FTCA claim against the United States for lack of subject matter jurisdiction, concluding that the conduct exercised by the prison officials fell under the discretionary function exception, 28 U.S.C. § 2680(a), to the FTCA's waiver of sovereign immunity.17 The court also dismissed, without prejudice, the Bivens claim against the five prison officials due to Shivers's failure to exhaust all his administrative remedies. Shivers appealed both dismissals, and on June 9, 2021, the United States Court of Appeals for the Eleventh Circuit affirmed the lower court's dismissal of both claims.18 Ultimately, the court's decision in this case allows the discretionary function exception to shield government employees who violate the Constitution from liability under the FTCA.
A. The Federal Torts Claim Act
The United States, as a sovereign entity, is immune from suit without the consent of Congress.19 In 1946, Congress passed the FTCA as Title IV of the Legislative Reorganization Act, 60 Stat. 842.20 Congress had
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considered such an act for nearly thirty years as a mechanism to hold the government liable for the misfeasance of federal employees while acting in the scope of their duties.21 Prior tort claim bills that Congress considered included waiver of sovereign immunity in specific realms of federal activity, such as "postal service, the activities of the Securities and Exchange Commission, or the collection of taxes."22 Two years earlier, Congress had drafted two exceptions to tort claims dealing with "the execution of a regulation or statute or on the exercise of a discretionary function."23 This was done to ensure the government would not be liable for torts arising from "errors in administration or in the exercise of discretionary functions."24 The necessity of these exceptions was clarified by an Assistant Attorney General who appeared before Congress to explain that legally authorized activities do not give rise to a tort action against the government "merely because 'the same conduct by a private individual would be tortious.'"25 The FTCA was not intended to allow the "constitutionality of legislation, the legality of regulations, or the propriety of a discretionary administrative act" to be second-guessed by the courts in a tort claim.26
When Congress passed the FTCA, it waived sovereign immunity for injury or loss caused by "the negligent or wrongful act or omission" of a government employee "while acting within the scope of [their] office or employment . . . ."27 In a 1994 case, FDIC v. Meyer,28 the Supreme Court held that constitutional tort claims are not cognizable under the FTCA when standing absent from a state tort claim. The Court stated that, in order for a claim to be actionable under the FTCA, a party must show that the United States would be liable to the plaintiff as a private person would be under the "law of the place where the act or omission occurred."29 The Court has continuously held that the "law of the place" language found in the statute means the law of the state in which the alleged injury occurred.30 The Court in Meyer went on to say the source of liability for a claim alleging a breach of a federal constitutional right
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is, by definition, federal law and not state law.31 Thus, the FTCA was enacted to provide a remedy for those individuals injured by state torts committed by federal employees.32 However, the FTCA was not intended as a route to enforce federal statutory duties.33 Although the Supreme Court has held that constitutional tort claims are not actionable under the FTCA when standing alone, it has yet to decide on the actionability of FTCA claims which have their basis in state tort law and are paired with a violation of constitutional rights.
B. The Discretionary Function Exception and the Two-Part Test
Although the FTCA provides a waiver of sovereign immunity, it is limited by exemptions that potentially deprive federal courts of subject matter jurisdiction over a plaintiff's claim.34 Of relevance here is the FTCA's exemption of "[a]ny claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."35 This exception is more commonly called the "discretionary function" exception.36 The purpose of this exception is 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."37 Congress intended to strike a balance between its "willingness to impose tort liability upon the United States" and its desire to allow the government to engage in certain activities without the threat of suit by private individuals.38 Congress took steps to avoid subjecting the government to liability for its employees' discretionary acts that would seriously encumber efficient government operations.39 The Supreme Court has concluded that it is impossible to define with infallible precision every aspect of the discretionary function exception.40
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There is, however, a way to determine if the exception applies in a specific case.41 In Gaubert, the Supreme Court used a two-prong test to determine whether challenged conduct falls within the discretionary-function exception.42 The court must first ascertain if the conduct is "discretionary in nature," meaning it involves an "element of judgment or choice."43 This "nature of the conduct" is the controlling factor in determining whether the exception applies and not the status of the actor. 44 The requirement of judgment or choice is not met if there is a federal statute...
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