Administrative Law Articles 138 Harv. L. Rev. 985

Federal Tort Liability After Egbert v. Boule: The Case for Restoring the Officer Suit at Common Law

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Introduction

For much of the nineteenth century, victims of federal government misconduct pursued common law tort claims against responsible federal employees.1 But the framework for government tort litigation changed dramatically in the twentieth century. Congress adopted the Federal Tort Claims Act2 (FTCA), imposing vicarious liability on the federal government for some (but not all) torts committed by its officers and employees within the scope of their employment.3 Notably, the FTCA omitted many intentional tort claims from its coverage, leaving those matters to resolution under state common law.4 Then, in 1971, the Supreme Court recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics5 a federal judge-made right to seek damages for federal officials’ violations of the Fourth Amendment.6 Legislation adopted in 1974 extended the FTCA’s vicarious liability regime to the intentional torts of law enforcement officers.7 Victims of tortious misconduct can, at least in theory, sue the government under the FTCA for law enforcement torts and wrongdoing officers under the Bivens doctrine.8

While available in theory, these remedies often go missing in practice, as they did in Hernández v. Mesa,9 the Supreme Court’s cross-border shooting case from 2020.10 The latest decision in the Bivens line, Egbert v. Boule,11 confirms the Court’s reluctance to expand the rights of individuals to pursue constitutional tort claims against federal officials.12 The Egbert Court reiterated that its more recent decisions “instruct that, absent utmost deference to Congress’ preeminent authority in this area, the courts ‘arrogat[e] legislative power.’”13 Under this vision of the separation of powers, Congress (rather than the federal courts) must take the lead in authorizing individuals to enforce the federal Constitution, especially in suits against officers of the federal government. Bivens may survive in the context of federal policing and imprisonment but has no growing power.14 For example, the Egbert Court rejected (without dissent) a new claim for First Amendment retaliation.15

When coupled with gaps in the FTCA, the Court’s persistent refusal to expand the Bivens remedy has produced a series of notable remedial failures. When federal government officials unlawfully detain and torture individuals outside the United States, they almost invariably enjoy immunity from judicial oversight.16 Thus, suits to secure compensation for government torture committed during the Bush Administration’s war on terror have consistently run afoul of the territorial limits of the FTCA and the reluctance to fashion a Bivens remedy.17 Closer to home, scholars have observed that victims of sexual assault and battery in the federal workplace face severe obstacles in securing redress under either Bivens or the FTCA.18 Even a simple assault and battery claim, brought by a low-level employee who had been choked on the job by an aggressive superior, was consigned to the remedial abyss.19

Legislation, of course, might help.20 But in this Article, we argue that current law affords individuals a broad right to pursue tort-based redress, either against the federal government under the FTCA or against federal officers based on state common law. That argument runs headlong into Westfall Act21 immunity as it is currently understood.22 Adopted as an amendment to the FTCA in 1988, the Westfall Act provides that remedies available against the government under the FTCA shall be “exclusive,” thereby foreclosing suit against federal employees for common law negligence and other torts covered by the FTCA.23 The federal courts have broadly interpreted the Westfall Act as immunizing federal officers from liability for all tortious conduct committed within the scope of their employment.24 This entrenched reading often denies the aggrieved plaintiff redress against the government under the FTCA and against the responsible federal official at common law.25

We make the novel argument that broad Westfall Act immunity rests on a fundamental misreading of the statute. The text of the Westfall Act specifies official immunity only for claims that implicate the government’s vicarious liability under the FTCA, rather than for claims that arise within the scope of the official’s employment. Where the claim in question falls outside the scope of the government’s vicarious liability under the FTCA, the statute’s exclusivity and preclusion provisions do not come into play to bar employee liability. The FTCA thus presumes that state common law will continue to provide a viable right to sue federal officials for tort claims that fail to implicate the subject matter of the FTCA.26 As a corollary to its text-based reluctance to “[r]ais[e] up” rights to sue through implied rights of action,27 the Supreme Court should also refrain from recognizing a broad Westfall Act immunity that the statute itself does not confer.

We develop our argument for the current availability of common law redress in three parts. Part I sketches the changing role of tort-based remediation, from a nineteenth-century model of assured redress to a modern regime in which remedial gaps have gained broader acceptance in the law and scholarship. After describing the common law system of the nineteenth century, Part I shows that such redress still has a role to play in addressing positive government wrongs. Tort law furnishes remedies for a range of government misconduct that the Bivens doctrine and the FTCA do not address.28 Such remedies could, in proper cases, trigger a constitutional test of the government’s activities. Engaging with the paradigmatic work of Professors Richard Fallon and Daniel Meltzer, which argues for a system of remedies sufficient to keep the government mostly within the bounds of the law most of the time,29 Part I argues that assured tort-based remediation can supplement systemic remediation without disrupting the balance of constitutional right and remedy that Fallon and Meltzer would preserve.

Part II argues that current law, correctly read, furthers assured redress by preserving the right of individuals to pursue tort claims against either the federal government or its responsible officers and employees. While the Westfall Act confers some official immunity, the language in question limits the scope of the FTCA’s exclusivity, and, by extension, the scope of the officer’s statutory immunity, to claims brought against federal officers “by reason of the same subject matter” as an FTCA claim against the United States.30 These terms of art operate to restrict the Westfall Act immunity to the very matters on which the federal government has accepted vicarious liability; when a tort claim does not implicate the FTCA directly or arise from or relate to an FTCA claim, the statute provides no warrant for its displacement. Federal officers remain personally liable for non-FTCA intentional torts committed within the scope of their employment, despite the present judicial consensus to the contrary.31

Part III describes the systemic implications of restoring federal officer liability for intentional torts committed on the job. Common law presumptively subjects federal officers to suits brought in any court with jurisdiction, subject only to any defenses or immunities conferred by federal law.32 The transitory tort doctrine ensures that many victims of wrongdoing outside the United States can sue for redress inside the United States, in any court where the tortfeasor can be found.33 Such redress traditionally extended to claims that implicated foreign relations and national security concerns.34 Indeed, nineteenth-century jurists made it quite clear that such concerns were matters for the legislative and executive branches to address through indemnification, while the courts focused on issues of legality.35 Officer suits can also provide authority for adjudication of constitutional challenges to government programs that the Bivens doctrine can no longer furnish.36


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* Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law. We thank Zach Clopton, Dick Fallon, John Goldberg, Paul Gowder, Vicki Jackson, Andrew Kent, John McGinnis, Randy Milch, Henry Monaghan, Alex Reinert, Joanna Schwartz, David Shapiro, Greg Sisk, and the public law workshops of Indiana, Michigan, and Northwestern law schools, for comments on an early draft. We thank the Northwestern Law faculty fund and senior research program for supporting this endeavor. For any remaining mistakes, omissions, and positive authorial wrongs, we accept full responsibility.

** J.D. Northwestern University Pritzker School of Law, 2022. Thanks to Kimberly Sheehan and my family for their endless support and encouragement.

Footnotes

  1. ^ On the nineteenth-century approach to government accountability, see infra Part I, pp. 992–1025; see also James E. Pfander, Constitutional Torts and the War on Terror 3–17 (2017) [hereinafter Pfander, Constitutional Torts]; James E. Pfander, Dicey’s Nightmare: An Essay on the Rule of Law, 107 Calif. L. Rev. 737, 748–50, 754–56, 762–66 (2019) [hereinafter Pfander, Dicey’s Nightmare].

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  2. ^ 28 U.S.C. §§ 1346(b), 2671–2680.

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  3. ^ Legislative Reorganization Act of 1946, ch. 753, 60 Stat. 812 (codified as amended in scattered sections of 2 and 33 U.S.C.) (original Public Law enacting the FTCA). Early federal decisions recognized that one purpose of the FTCA was to eliminate the burden on Congress associated with the processing of petitions for relief by private bill. See Maryland ex rel. Burkhardt v. United States, 165 F.2d 869, 872 (4th Cir. 1947) (FTCA’s purpose was to eliminate private bills); United States v. LePatourel, 571 F.2d 405, 408 (8th Cir. 1978) (FTCA was passed with “twin purposes” of compensating tort victims and eliminating the need for private bills); Downs v. United States, 522 F.2d 990, 995 (6th Cir. 1975) (basic purpose of FTCA “was to relieve Congress of the burden of considering” and passing private bills (citing United States v. Muniz, 374 U.S. 150, 153–54 (1963); Dalehite v. United States, 346 U.S. 15, 24–25 (1953); Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 703–04 (1949))).

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  4. ^ See, e.g., 28 U.S.C. § 2680(h).

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  5. ^ 403 U.S. 388 (1971).

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  6. ^ Id. at 389. On the origin of the Bivens doctrine, see James E. Pfander, The Story of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, in Federal Courts Stories 275, 280 (Vicki C. Jackson & Judith Resnik eds., 2010). On the doctrine’s application in recent years, see generally Joanna C. Schwartz, Alexander Reinert & James E. Pfander, Going Rogue: The Supreme Court’s Newfound Hostility to Policy-Based Bivens Claims, 96 Notre Dame L. Rev. 1835 (2021). On the Court’s failure to grapple with the common law underpinnings of federal official liability, see generally James E. Pfander & David Baltmanis, Rethinking Bivens: Legitimacy and Constitutional Adjudication, 98 Geo. L.J. 117 (2009).

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  7. ^ See Pfander & Baltmanis, supra note 6, at 131–33 (providing an overview of the 1974 amendments).

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  8. ^ On the viability of both FTCA and Bivens claims for the same misconduct, see Carlson v. Green, 446 U.S. 14, 23 (1980).

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  9. ^ 140 S. Ct. 735 (2020).

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  10. ^ See id. at 740, 750 (rejecting constitutional tort claim in circumstances in which the Court assumed no other remedy was available to redress the fatal shooting of a fifteen-year-old Mexican national).

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  11. ^ 142 S. Ct. 1793 (2022).

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  12. ^ Id. at 1799 (explaining that, “[o]ver the past 42 years, . . . we have declined 11 times to imply a similar cause of action for other alleged constitutional violations”). In turning away a Fourth Amendment claim for the unreasonable use of force, the Court emphasized that the case involved issues of border security that made the setting different from that in Bivens. See id. at 1804. Boule operated an inn near the border of Canada; the federal government officials were investigating illegal border crossings when they allegedly entered Boule’s property and roughed him up. Id. at 1800–01. Bivens, by contrast, lived in an apartment in New York; the federal government officials there were investigating drug trafficking when they entered his property and roughed him up. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971). That slight difference in context was sufficient, the Court found, to support its conclusion that Bivens did not provide Boule a right to sue. Egbert, 142 S. Ct. at 1806.

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  13. ^ Egbert, 142 S. Ct. at 1803 (alteration in original) (quoting Hernández, 140 S. Ct. at 741–42).

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  14. ^ One can argue that, at a minimum, the Westfall Act’s savings provision for constitutional tort claims, 28 U.S.C. § 2679(b)(2)(A), preserves several contexts for such litigation. See Pfander & Baltmanis, supra note 6, at 131.

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  15. ^ See Egbert, 142 S. Ct. at 1807. But see Hartman v. Moore, 547 U.S. 250, 252 (2006) (assuming the viability of a First Amendment retaliation claim under Bivens and specifying the pleading requirements for such litigation); Harlow v. Fitzgerald, 457 U.S. 800, 805–06 (1982) (assuming the viability of a retaliation claim and erecting a new qualified immunity standard to protect officers named as defendants in such litigation); Butz v. Economou, 438 U.S. 478, 480, 485 (1978) (assuming the viability of a retaliation claim).

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  16. ^ See Jonathan Hafetz, Torture, Judicial Review, and the Regulation of Custodial Interrogations, 62 N.Y.U. Ann. Surv. Am. L. 433, 435 (2007).

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  17. ^ See, e.g., Padilla v. Yoo, 678 F.3d 748, 768 (9th Cir. 2012) (rejecting claim that Department of Justice lawyer had facilitated torture through shabby legal analysis); Lebron v. Rumsfeld, 670 F.3d 540, 556, 562 (4th Cir. 2012) (rejecting domestic torture claim under Bivens); Vance v. Rumsfeld, 701 F.3d 193, 205 (7th Cir. 2012) (en banc) (rejecting overseas torture claim under Bivens); Doe v. Rumsfeld, 683 F.3d 390, 396 (D.C. Cir. 2012) (rejecting overseas torture claim under Bivens). See generally Pfander, Constitutional Torts, supra note 1, at 31–56.

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  18. ^ See, e.g., Gregory C. Sisk, Holding the Federal Government Accountable for Sexual Assault, 104 Iowa L. Rev. 731, 734–35 (2019) (describing the gaps in federal accountability as “hypocritical” and “intolerable”).

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  19. ^ See Majano v. United States, 545 F. Supp. 2d 136, 137–38, 148 (D.D.C. 2008) (dismissing intentional tort claim against high-ranking official who had assaulted and choked a member of the custodial staff). In most instances, the cases we discuss were resolved on motions instead of a trial on the merits. In describing the facts in such cases, we proceed, as the rules of procedure suggest, in assuming the truth of the plaintiff’s allegations, recognizing that a trial might have proven them unfounded. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).

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  20. ^ See Sisk, supra note 18, at 740, 792 (proposing amendments to expand the FTCA to more intentional tort claims); Thomas A. Koenig & Christopher D. Moore, Of State Remedies and Federal Rights 5 (Feb. 6, 2024) (unpublished manuscript), https://ssrn.com/abstract=4462807 [https://perma.cc/X26S-8QGA] (discussing that states could adopt rights of action to enforce the Constitution against federal officers); cf. Michael W. Dolan, Constitutional Torts and the Federal Tort Claims Act, 14 U. Rich. L. Rev. 281, 298–309 (1980) (evaluating legislative proposals to make the United States government liable under the FTCA for its officials’ constitutional torts).

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  21. ^ Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), Pub. L. No. 100-694, 102 Stat. 4563 (codified at 16 U.S.C. § 831c-2 and 28 U.S.C. §§ 2671, 2674, 2679).

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  22. ^ In discussing the FTCA’s implications for the tort liability of the federal government, this Article uses conventional modes of doctrinal analysis and a text-based approach to statutory interpretation not unlike the approach taken in earlier work on the interaction of the Bivens doctrine and the government’s tort liability under the FTCA. See Pfander & Baltmanis, supra note 6, at 122 n.23 (assuming, in keeping with the conventional wisdom, that the Westfall Act largely displaced official liability for torts within the scope of employment); see also Carlos M. Vázquez & Stephen I. Vladeck, State Law, The Westfall Act, and the Nature of the Bivens Question, 161 U. Pa. L. Rev. 509, 566 (2013) (agreeing with the suggested account). In later work, Pfander and a co-author argued that, on a close reading of the text, the FTCA’s judgment bar did not displace the right of individuals to pursue Bivens claims. See James E. Pfander & Neil Aggarwal, Bivens, The Judgment Bar, and the Perils of Dynamic Textualism, 8 U. St. Thomas L.J. 417, 457 (2011) [hereinafter Perils]. In the course of that work, it became clear that the “subject matter” limits of the judgment bar had important and previously unrecognized implications for the meaning of other FTCA provisions, id. at 421 (emphasis omitted) (quoting 28 U.S.C. § 2676), as further discussed in Part II, pp. 1026–44. This work follows Perils in suggesting that one must understand the FTCA’s terms of art in light of the interpretive conventions in place at the time of the statute’s adoption in 1946 and subsequent amendments in 1961, 1974, and 1988.

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  23. ^ Westfall Act, 102 Stat. at 4563. On the statute’s origins, see infra section II.B, pp. 1028–38.

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  24. ^ See, e.g., United States v. Smith, 499 U.S. 160, 166 (1991).

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  25. ^ The Westfall Act declares that the remedy against the United States conferred by the FTCA shall be a plaintiff’s exclusive remedy for certain claims, by reason of the same subject matter, 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.” 28 U.S.C. § 2679(b)(1). Scholars have long assumed that the Westfall Act immunity broadly immunizes federal employees for wrongful acts committed within the scope of their employment. See, e.g., Gregory C. Sisk, Litigation with the Federal Government 363, 365 (4th ed. 2006) (noting that the Westfall Act bars claims against employees, even if the government substitutes itself and then avoids liability through an exception or limitation); Pfander & Baltmanis, supra note 6, at 134; Vázquez & Vladeck, supra note 22, at 566.

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  26. ^ See infra section II.C, pp. 1039–44.

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  27. ^ See Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (“Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals.” (quoting Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in the judgment))).

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  28. ^ See 28 U.S.C. § 2680 (exempting various causes of action, including a broad swath of intentional tort claims, from the FTCA’s scope); Ziglar v. Abbasi, 137 S. Ct. 1843, 1854–55 (2017) (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971); Davis v. Passman, 442 U.S. 228, 248–49 (1979); Carlson v. Green, 446 U.S. 14, 19 (1980)) (noting Bivens doctrine’s limitation to claims implicating the Fourth, Fifth, and Eighth Amendments).

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  29. ^ See Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1822 (1991) [hereinafter Fallon & Meltzer, Remedies]; see also Richard H. Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Calif. L. Rev. 933, 939–40 (2019) [hereinafter Fallon, Bidding Farewell].

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  30. ^ 28 U.S.C. § 2679(b)(1).

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  31. ^ United States v. Smith, 499 U.S. 160, 166 (1991).

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  32. ^ See infra notes 415–18 and accompanying text.

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  33. ^ See Mitchell v. Harmony, 54 U.S. (13 How.) 115, 116, 118, 137 (1852) (upholding substantial federal court judgment against federal military officer for tortious taking of property during the Mexican-American War). Harmony pursued Mitchell in New York, far from the battlefield in Mexico where the seizure of property occurred. See id. at 116, 137, 150.

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  34. ^ See infra section III.A.3, pp. 1047–50.

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  35. ^ See infra section I.B, pp. 998–1005.

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  36. ^ See Egbert v. Boule, 142 S. Ct. 1793, 1803 (2022) (making clear the Court’s view that Bivens has fallen out of favor and that the judiciary should generally defer to Congress when it comes to the recognition of new damages actions).

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February 10, 2025

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