It's Time to Resolve the Circuit Split: Unconstitutional Actions by Federal Employees Should Not Fall Within the Scope of the Discretionary Function Exception of the Ftca

• Publication year: 2022

It's Time to Resolve the Circuit Split: Unconstitutional Actions by Federal Employees Should Not Fall Within the Scope of the Discretionary Function Exception of the FTCA

Laney Ivey

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It's Time to Resolve the Circuit Split: Unconstitutional Actions by Federal Employees Should Not Fall Within the Scope of the Discretionary Function Exception of the FTCA

Laney Ivey^*

I. Introduction

The Federal Torts Claims Act (FTCA) is an avenue for United States citizens to sue the federal government for torts committed by government employees within the scope of their work. Congress designed the FTCA to allow citizens to overcome the doctrine of sovereign immunity, which allows citizens to recover from injuries suffered at the hands of government agents. Under the FTCA, there are exceptions where recovery is not allowed; the most prominent exception is known as the discretionary function exception, under which discretionary actions by government employees are immune from liability under the FTCA.

The intent of the discretionary function exception is to keep the courts from second guessing discretionary actions by executive employees, and to keep executive employees from being hesitant to

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exercise discretion for fear of liability.¹ The scope of the discretionary function exception is much litigated and one legal issue that has arisen is whether unconstitutional actions by an executive official can ever fall within the exception. There is currently a circuit split regarding whether unconstitutional actions fall within the exception. The First, Third, Eighth, Ninth, and D.C. Circuits all believe unconstitutional actions should not fall within the exception, while the Seventh and Eleventh Circuits believe they should. The Supreme Court of the United States has yet to weigh in on the issue and has not commented on the ambiguity surrounding the exception in over twenty-five years. This Comment will argue that unconstitutional actions are outside the scope of discretion provided by the exception, and therefore should be excluded from the exception.

From the inception of the FTCA, the scope and implication of the discretionary function exception has been extensively litigated. Faced with a lack of clarity in the statute, courts have wrestled with articulating the functions that Congress intended to be "discretionary," and thus prohibiting civil liability. The underlying theme throughout the cases debating the discretionary function exception is that the core purpose of the FTCA is to hold the Government responsible for the harm it causes.

The FTCA radically changed the way citizens seek relief for their claims against the government. Before the adoption of the FTCA, citizens could not sue the federal government for negligent acts committed by a government official. Sovereign immunity protected these officials, regardless of how egregious their actions were.² While there were options available to citizens seeking relief, they were limited to seeking a private action bill.³ Hoping to make a change, which would allow for Americans to seek redress for tortious actions by the government, Congress passed the FTCA.⁴

The goal of this Article is to expound on various courts' interpretations of the discretionary function exception, and to offer an opinion on the current divide, as well as a workable test which would remedy the confusion surrounding the exclusion of unconstitutional actions from the exception. First, this Article discusses the history of sovereign immunity within the United States, and the process a citizen would have to undertake to seek redress in a suit against a government

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entity. Next, it will address the FTCA and its creation, along with Congress's considerations in their drafting of the legislation.

Following the background of the FTCA, the focus will shift to the discretionary function exception. This Comment will address the function and purpose of the exception, as well as the test commonly used in cases where sovereign immunity and a discretionary action are at play. This Comment will then turn to the different stances of the judicial circuits who have issued opinions regarding whether unconstitutional actions by a government employee fall within the scope of the discretionary function exception. Finally, this Comment will offer a solution to the split, commenting on the need for a Supreme Court opinion clarifying the discretionary function exception and highlighting the three main areas of contention and the concerns of those for the inclusion.

II. Before and After the Federal Torts Claims Act

A. The History of Sovereign Immunity and Redress for Torts Claims Prior to the FTCA

Sovereign immunity is a key foundation of the FTCA.⁵ The doctrine of sovereign immunity permits a sovereign state or entity to be sued only to the extent that it has consented to being sued, and such permission can only be given by the legislative branch.⁶ "Thus, except as Congress has consented to a cause of action against the United States, 'there is no jurisdiction . . . in any . . . court to entertain suits against the United States.'"⁷ This body of law is the shield protecting the United States from suit.

Before the creation of the FTCA, or any other applicable waiver of sovereign immunity, Americans injured by torts of government officials could not sue the government for damages resulting from their injuries.⁸ However, this did not leave Americans without a remedy, as the First Amendment guaranteed their right to petition the government for redress.⁹ The issue of establishing an efficient way for Americans to seek redress is not new. Even in the beginning years of the country,

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citizens petitioned Congress for special legislation which would grant an avenue for financial recovery for injuries caused by the federal government.¹⁰ However, time proved that the legislative process was ill-suited for resolving tort claims, with many leaders calling for a change.¹¹

Congress introduced and adopted a wide variety of remedies for a range of claims, however, none of them offered a remedy for tort actions. First, in 1855, Congress passed the Court of Claims Act,¹² however, it was interpreted to exclude torts.¹³ Next, in 1886, Congress enacted the Tucker Act,¹⁴ which explicitly excluded torts, as the government did not want to waive sovereign immunity.¹⁵ In the years following the Tucker Act, there were a number of statutes passed which offered a tort remedy for various claimants including "horse owners, oyster growers, and persons injured by operations of the Post Office."¹⁶

From the early 1920s forward, pressure mounted for the enactment of a law that would more efficiently process tort claims against the government. Congress wrestled with the issue for over twenty years, which resulted in over thirty potential bills regarding tort claim redress.¹⁷ At this point in time, the only opportunity for a citizen to seek compensatory relief was through a private congressional bill.¹⁸ Private bills "impose[d] 'a substantial burden on the time and attention of Congress,' [and] some members of the public became increasingly concerned 'that the private bill system was unjust and wrought with

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political favoritism.'"¹⁹ However, the administration of these claims became burdensome, as seen during the Seventieth Congress, where 2,268 private claim bills were introduced, totaling more than $100 million in damages.²⁰ Of the 2,268 private claim bills that were introduced, only a 336 were enacted.²¹

The issue came to a head in 1945 when a B-25 bomber plane crashed into the Empire State Building.²² The crash, caused by a negligent United States Army Air Force pilot, left fourteen people dead and many others injured. Eight months after the crash, the U.S. government offered money to families of the victims. Some accepted, but others initiated a lawsuit that resulted in landmark legislation.²³

B. The FTCA is Born

Hoping to end the inefficient system and fueled by lawsuits following the 1945 Empire State Building crash, the 79th Congress set out to resolve the burden of a faulty remedy system for tort claims in 1946.²⁴ Thus the Federal Torts Claims Act was born. The purpose of this act is to give the general public an avenue by which they can pursue legal action (and financial compensation) against the federal government.²⁵ The drafters of the FTCA imagined an act where citizens could circumvent the doctrine of sovereign immunity and have their day in court for any nonfeasance or misfeasance created by the government or those acting on behalf of the government.²⁶

A person injured by the tortious activity of a federal employee commonly has two potential targets that he could name as a defendant in a tort lawsuit: (1) the federal employee who committed the tort and (2) the federal government itself.²⁷ In numerous cases, however, suing the employee is not a viable option.²⁸ The FTCA generally authorizes suits against the United States for damages arising out of:

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[I]njury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.²⁹

"Under the FTCA, the federal government acts as a self-insurer, and recognizes liability" for the tortious actions "of its employees acting within the scope of their sanctioned duties.³⁰ "The United States is liable to the same extent" a private individual would be in similar circumstances.³¹ The FTCA does not itself create a new federal cause of action against the U.S.; instead, the FTCA waives the U.S's sovereign immunity from certain claims that exist under state tort law.³² Therefore, the liability of the United States in an FTCA case is typically determined by...