The FTCA & The Constitution

Adam Shelton · March 4, 2022

Government officials don’t have the discretion to violate the Constitution. This should be uncontroversial; the Constitution is the supreme law of the land after all. Unfortunately, but not unsurprisingly, the government has a much different view on the question—at least in the context of the discretionary function exception to the Federal Tort Claims Act (FTCA).

The FTCA is a limited waiver of the government’s sovereign immunity. In other words, it allows an individual to sue the United States government directly for certain harms committed by federal employees. Before the FTCA, an individual could only sue the employee him or herself, but the FTCA opened up another avenue for individuals to receive compensation for their injuries. Congress included certain limited exceptions to this general waiver, including the discretionary function exception. Under the exception, an individual cannot sue the government over a tort committed by a federal employee when that tort results from a “discretionary” action or inaction. Setting aside what exactly qualifies as a discretionary action or inaction, it certainly does not include actions which violate the Constitution.

Unfortunately, a district court in the Third Circuit not only disagreed but also brought qualified immunity’s “clearly established” analysis into the equation. The district court held that the discretionary function exception applied so long as the government employee’s action did not violate any clearly established constitutional right. This importation of qualified immunity and the more general holding that sometimes government employees have the discretion to violate the Constitution led us at IJ to file an amicus brief.

The case involves Professor Xiaoxing Xi. He is an expert in thin film superconducting technology and a professor of physics at Temple University. But his life went off the rails for a few months in 2015 after FBI agents burst into his home in the early morning to arrest him under the belief that he was a Chinese spy. The problem? There was no evidence that he was actually a Chinese spy.

For reasons still unknown the government launched an investigation into Professor Xi under the government’s “China Initiative.” The investigation uncovered a series of emails about the sending of blueprints for technology to associates in China. The FBI agent leading the investigation believed these blueprints were for a pocket heater—useful in superconductor research—that Xi did not have the legal power to transfer. They weren’t. Instead, they were blueprints for an invention of his own making. His invention was as similar to a pocket heater as is a toaster to a microwave.

The government eventually realized this and dropped the charges, but only after a few months had passed. And not before Professor Xi had to spend thousands of dollars on legal representation, Temple University suspended him, and national media outlets sullied his reputation by calling him a “Chinese Spy.” Understandably, Professor Xi wants compensation for the harm he endured, so he brought claims against the FBI officer who led the investigation into him, and tort claims against the government under the FTCA. The claims against the officer were brought under Bivens, the implied right of action the Supreme Court has recognized against federal officials for some constitutional protections.

The district court rejected both the Bivens claims and the FTCA claims. But in rejecting the FTCA claims the court broke with the Third Circuit’s own precedent and imported qualified immunity’s “clearly established” analysis into the FTCA context—a place where qualified immunity is completely irrelevant. If this decision stands it threatens to close off one of the few remining remedies for harms committed by federal employees. IJ often litigates to ensure that Bivens remedies remain open, but as we are litigating that issue we also want to ensure that other avenues remain open. Our amicus brief focuses solely on the FTCA issues and makes two main arguments.

First, we argued that government officials simply do not have the discretion to violate the Constitution. Thus, the discretionary function exception is inapplicable when the tort also constitutes a constitutional violation. This is the longstanding precedent of the Third Circuit and Supreme Court precedent supports this majority rule.

The Supreme Court in United States v. Gaubert, and Berkovitz v. United States, held that if a government employee violates a statute or regulation, the discretionary function exception does not apply. It would defy logic to hold that the exception does not apply when the alleged tortious action violated a statutory or regulatory mandate but does apply when the alleged tortious conduct violates the Constitution. Such a holding would mean that statutes and regulations are more binding than the Constitution.

In keeping with the Supreme Court’s doctrine, most circuits have agreed with this Court’s rule. The First, Second, Fourth, Eighth, Ninth, and D.C. Circuits have all come to similar conclusions. Only the Seventh and Eleventh Circuits have held that the discretionary function exception applies even when the tort constitutes a constitutional violation. This circuit split stems from a misunderstanding of the role the Constitution plays in determining the applicability of the exception. Both the Seventh and Eleventh Circuits held that it applies even if a tort constitutes a constitutional violation because the FTCA compensates state tort law violations—not constitutional violations. This is certainly true. But it is also beside the point. The relevance of a constitutional violation is that an action that violates the Constitution cannot be a discretionary one. Government employees—and the government itself—simply do not possess the discretion to violate the Constitution. The Constitution’s only role then is to rebut the applicability of the discretionary function exception, which then leaves the plaintiff with the ability to prove the elements of their state law tort claim.

This structure mirrors the role the Constitution consistently played in pre-FTCA tort claims against government officials. Before Congress enacted the FTCA, an individual’s main recourse was to sue a federal employee directly for that employee’s tortious action. The Constitution would come into play in rebutting a federal employee’s defense that they were authorized to take the action due to their official role. If the action violated the Constitution, the employee’s authorization defense would fail because they exceeded the scope of any authorization by violating the Constitution. And nothing in the FTCA suggests that Congress intended to upset this role for the Constitution in tort suits. The FTCA did not create a new tort action; it simply opened up a new party to suit with certain expectations but left the rest of tort law exactly where it was.

Second, we argued that the district court was wrong to import qualified immunity’s clearly established test into the equation. The importation of qualified immunity’s clearly established analysis is misguided both because the policy justifications behind qualified immunity are irrelevant in the FTCA context and because whether a federal employee violated a “clearly established” right is a distinct question from whether that employee violated the Constitution.

The Supreme Court created qualified immunity based on policy considerations not relevant in the FTCA context. The Court created qualified immunity for Bivens cases to protect federal employees from being held personally liable. The Court later expanded qualified immunity into the realm of Section 1983 (which gives a cause of action against state officials) where, again, government actors were held personally liable for constitutional violations. But under the FTCA it is the government itself that will be held liable and required to pay damages, not the individual employee. And as qualified immunity has come under recent criticism from Supreme Court justices, lower courts, and academics as lacking any historical, textual, or legal justifications, it makes little sense to expand it to new areas of law.

Additionally, whether an action violates a “clearly established” constitutional right is distinct from whether an action violates the Constitution. An action can violate the Constitution without violating a “clearly established” (as the Supreme Court has defined that phrase) constitutional right. And in the discretionary function exception context, the Constitution is relevant insofar as an employee necessarily is acting outside their permitted discretion if the employee acts in a way that violates the Constitution

We now wait to see what the Third Circuit will do in this case. While we are awaiting the result, we will continue working in other cases to ensure that as many avenues as possible remain open for individuals to receive compensation for harms caused by federal employees, because there can be no right without a remedy.

Visit here to learn more about the Institute for Justice’s Project on Immunity & Accountability.

Adam Shelton is IJ’s Immunity & Accoutability Fellow.

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