Since 1946, the Federal Tort Claims Act1 (FTCA) has waived the government’s sovereign immunity for damages claims brought against the United States for the tortious conduct of its employees.2 This waiver has allowed those wronged by a federal officer to seek recovery through claims predicated on the common law tort of the state in which the wrong occurred.3 But that waiver is subject to a litany of exceptions.4 One is 28 U.S.C. § 2680(a), which retains the government’s immunity for any claim based on an employee’s performance or failure to perform “a discretionary function or duty . . . whether or not the discretion involved be abused.”5 The lower courts have interpreted this “discretionary function exception” capaciously, rendering it remarkably broad and applicable to innumerable acts.6 In large part because of this, when the government has invoked the exception at the motion to dismiss stage, it has succeeded in dismissing nearly seventy-five percent of claims.7
But notable disagreements persist concerning the exception’s bounds. One such disagreement has resulted in a split amongst the courts of appeals. It concerns the interplay between the discretionary function exception and the U.S. Constitution. Does the exception immunize the government from tort claims that also constitute constitutional violations — even though the Constitution cannot form the basis of a plaintiff’s FTCA tort claim?8 Or does the Constitution place bounds on the “discretion” that the exception can immunize?
For instance, imagine a case in which a U.S. Park Police Officer arrested a woman for organizing a large prayer service on National Park grounds.9 Her arrest was not legally authorized and thus could constitute false arrest under the common law. If she brought an FTCA claim against the United States alleging false arrest, the government would, in the ordinary course, move to dismiss on grounds that the discretionary function exception applies.10 But could she successfully oppose that motion by arguing that the arrest plausibly violated her First Amendment rights, so the exception cannot apply?
That question has real ramifications. Many claims that could be pleaded as constitutional violations could also be pleaded as violations of state tort law.11 For instance, many Fourth Amendment violations overlap with torts such as battery and invasion of privacy.12 So plaintiffs alleging official federal misconduct can pursue two damages claims: (1) an FTCA claim against the federal government for the tort and (2) a claim against the officer in their personal capacity for the constitutional violation.13 But today, plaintiffs will have trouble succeeding on the latter claim — commonly referred to as a Bivens action for the 1971 case, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,14 which implied a private right to damages relief for constitutional violations.15 Over the last few decades, the Court has appreciably cut back the availability of Bivens remedies.16 Judicially created causes of action, in its eyes, impermissibly blur the constitutional lines between legislative and judicial power.17 With Bivens largely gutted, the FTCA provides virtually the only path to damages relief for individuals harmed by a federal officer’s unconstitutional conduct. And whether that path is a feasible one turns on whether the discretionary function exception applies to unconstitutional conduct.
For almost fifty years, nearly every court of appeals to consider the issue reached the same conclusion. The government could not invoke the discretionary function exception in response to an FTCA claim if the tort alleged also constituted a constitutional violation.18 These courts generally reasoned that “[i]t is, of course, a tautology that a federal official cannot have discretion to behave unconstitutionally.”19 This proposition was considered so “elementary” that these courts adopted this stance with little justification or interpretation of the FTCA itself.20
But in 2019, some circuits began challenging this entrenched conclusion. With Judge Easterbrook writing for a majority, the Seventh Circuit declared: “[T]he theme that ‘no one has discretion to violate the Constitution’ has nothing to do with the Federal Tort Claims Act . . . .”21 The Eleventh Circuit followed, describing the dominant view as writing in an “extra-textual ‘constitutional-claims exclusion’” into the statute.22 The Seventh and Eleventh Circuits largely rooted their arguments in the text. Section 2680(a) applies “whether or not the discretion involved be abused,” so the statute is “unambiguous and categorical” in its scope, they argued.23 It does not “carve[] out certain behavior,” even unconstitutional behavior, from the exception.24 This makes sense, they said, because “Congress did not create the FTCA to address constitutional violations at all but, rather, to address violations of state tort law.”25 And Congress made that explicit when it amended the FTCA in 1988, clarifying its inapplicability to claims “brought for a violation of the Constitution.”26 That amendment, both courts argued, proved that FTCA claims must be considered “without regard to constitutional theories.”27
The resulting split has spurred myriad commentators to side with the majority view, but largely with defenses that double down on that view’s original axiom — that any other reading of the exception is simply incompatible with the Constitution.28 This Note offers a different tack that places the majority view on firmer footing. It argues that Congress transplanted the common law term “discretion,” which governed officer suits at common law, into the discretionary function exception. And it demonstrates how that exception, when properly interpreted against this common law backdrop, retains the government’s immunity only for “constitutionally permissible” discretionary functions.29 Part I explains the doctrine of “discretion” that governed officer suits at common law. This Part argues the predominant view at common law was that the Constitution placed boundaries on the “discretion” that could be conferred on officers. Part II discusses the upshot for interpreting the discretionary function exception. And it shows how interpreting “discretion” as referring to “constitutionally permissible discretion” fits within the larger mechanics of the FTCA’s scheme and Supreme Court doctrine implementing it. Part III concludes by discussing the implications of this interpretation for how plaintiffs looking to vindicate constitutional rights through tort suits under the FTCA should plead their FTCA claims.
I. The Discretionary Function Exception’s Common Law Backdrop
When the FTCA was enacted in 1946, it did not emerge ex nihilo. Rather, it built upon a long tradition of official accountability rooted in tort law that prevailed since the early republic. Prior to the FTCA’s passage, individuals could not receive damages directly from the United States for the tortious conduct of its officers.30 Sovereign immunity barred any suit for money damages brought directly against the United States.31 But it did not bar suit against the officers who committed the wrongs.32 Throughout the nineteenth century, individuals wronged by official misconduct sought redress against individual officers by suing them in tort.33 And if the officer was found liable, the officer could in turn seek indemnification from the government in the form of a private bill from Congress.34 In the era prior to the Civil War, about sixty percent of officers who sought indemnity received it.35 But by the early twentieth century, this practice had become arduous and distracting for Congress.36 And so in 1946, Congress enacted the FTCA to replace the antiquated scheme.
Given this history, one cannot understand the modern regime without first grasping its common law foundations. This Part begins by examining the common law roots of “discretion” — a doctrinal fixture in officer suits at common law that dictated the extent to which an individual executive official could be held liable for misconduct. It then draws upon examples of individual officer suits at common law to explain how the common law viewed the Constitution as imposing constraints on discretion.
A. “Discretion” at Common Law
As early as Marbury v. Madison,37 the Supreme Court — apparently motivated by separation of powers concerns — articulated the principle that courts should not “enquire” into how officers “perform duties in which they have . . . discretion.”38 By the mid-nineteenth century, courts captured this immunity principle through a distinction between “ministerial” and “discretionary” functions.39 Officials had discretionary rather than ministerial duties when the law gave them the authority to use their own judgment to decide how to best carry out their obligations.40 Because this latitude of judgment was similar to that granted to judges,41 discretionary authority for executive officials was sometimes referred to as “quasi-judicial.”42 Courts used this distinction to determine the individual damages liability of an officer for carrying out his duties improperly.43
To be sure, the line between ministerial and discretionary functions was not always clear. Courts did not always agree about whether a particular duty constituted a ministerial or a discretionary one.44 For example, when the FTCA was enacted, state courts were divided over whether a warden’s duty to preserve the health and safety of jails and their occupants was ministerial or discretionary in nature.45 And as the distinction developed throughout the early twentieth century, some criticized it as being largely indeterminate and unhelpful for deciding the proper scope of an officer’s liability.46 Professor Louis Jaffe described it as “a way of stating rather than arriving at the result,” merely a “convenient device for extending the area of nonliability without making the reasons explicit.”47 And Dean William Prosser’s 1941 Handbook of the Law of Torts labeled it a “rather unworkable distinction.”48 But regardless of the academic disdain for the distinction, it remained alive and well in the courts. Through the early twentieth century, courts consistently employed the distinction to determine whether an officer could be held liable in damages for his misdeeds.49
B. The Boundaries of Common Law Discretion
Nonetheless, “discretion” at common law was not a blank permission slip. As this Part describes, even if a court found that an officer was delegated “discretionary” authority, it could still find the officer liable for his misdeeds. This is because a separate principle generally embraced at common law stated that “discretionary” officers were shielded from liability only if they did not “act wholly outside of their jurisdiction or official authority.”50
As Professor James Pfander helpfully describes it, this “discretion” was a “zone.”51 As long as “discretionary” officers operated within that zone, they “were free to exercise their best judgment without judicial oversight.”52 But if a court determined that an officer “act[ed] beyond his jurisdiction,” as the Supreme Court put it in the 1849 case Wilkes v. Dinsman,53 that court would treat the officer “as not acting in the capacity of an officer at all”54 but rather as merely a private citizen, stripped of any official defenses from suit.55
How would a court determine when an officer had stepped outside these boundaries? One cannot and should not pretend that courts were always consistent. But the common law tended to embrace the principle that an officer could exceed these bounds by contravening the Constitution.56 That is, “discretion,” no matter how broadly conferred, could not dissolve constitutional limits. This Part explores the two types of paradigmatic common law cases that illustrate this principle.
1. Suits Against Officers for Tortious Conduct. — When an individual was harmed by official misconduct at common law, they “could normally seek redress by invoking forms of action available at common law and in equity that included suits against governmental officials under ordinary tort law.”57 The claim was not pled as a constitutional violation. But the Constitution still played a role in these suits if the federal officer attempted to respond by raising defenses that were available to him by virtue of his federal official status.58 For example, an officer might claim in defense that he was acting in his official capacity pursuant to a lawful order.59 But if his actions nonetheless violated the Constitution, the plaintiff could argue in reply that the officer’s claimed authority to act violated the Constitution.60 That the officer relied on an official order in good faith was no defense; “what mattered was legality.”61 As the Supreme Court explained in the officer suit case of Mitchell v. Harmony,62 a person who executes an “order to do an illegal act,” such as one that violates the Constitution, has still committed an illegal act.63 In these contexts, the constitutional violation would effectively “strip” the officer “of his official character,” rendering him liable in damages for his misconduct like any ordinary citizen.64 Many officers held liable under this scheme successfully turned to Congress, ultimately shifting the liability of judgment onto the public fisc.65
These principles would have done the same work in the context of officers who violated the Constitution acting pursuant to “discretionary” authority.66 After all, an individual stripped of his official character would not have been able to invoke any official justification for his behavior, including that he was acting with latitude of discretion conferred to him under federal law.
2. Suits Against Officers for Enforcing Unconstitutional Statutes. — Another type of officer suit that commonly recurred at common law illustrates how the common law would have treated “discretion” as being constrained by constitutional limits. At common law, plaintiffs could bring damages suits against officers who carried out duties pursuant to unconstitutional statutes.67 And when they did so, even officers acting in a discretionary capacity were denied the ability to invoke the unconstitutional statute in defense to such claims.68 In such contexts, as the Supreme Court expounded in 1949, “the power has been conferred in form but the grant is lacking in substance because of its constitutional invalidity.”69 Scores of precedents from state courts70 and the federal Supreme Court71 invoked this rule. It was rooted in a basic principle: if the government enacted a statute that was unconstitutional, the government exceeded its lawful powers, and the statute would not shield the officer who acted as the government’s agent from suit.72 This practice accorded with the long-accepted premise that an unconstitutional statute is no law at all.73
The same principles would have applied had a statute conferred discretion on an official to act, and the official did so in a manner that contravened the Constitution. After all, a legislature that lacks the authority to directly authorize its agents to carry out unconstitutional acts likewise lacks the authority to do so indirectly. Consequently, a statute authorizing officers discretion to carry out certain acts could not have shielded those who committed unconstitutional acts in the exercise of that discretion from liability simply because the statute granted the officers latitude of judgment.74
The 1880 case of Gross v. Rice75 is illustrative of the point. Gross sued Rice, his prison warden, for damages for false imprisonment when Rice kept him imprisoned beyond his initial sentence.76 Rice responded by arguing that his actions were authorized by a statute allowing wardens to hold prisoners beyond their sentence by the amount of time they had spent in solitary confinement for contravening prison rules.77 The Supreme Judicial Court of Maine nonetheless found Rice liable because it held that the statute was unconstitutional.78 It empowered Rice to deprive Gross of his liberty “without any new accusation, trial and sentence,” thereby violating his right to due process of law.79 The court conceded that “the punishment of refractory convicts is a matter within the discretion of the warden.”80 But as the court put it, “[i]t does not follow that because a warden may inflict some punishment, he may inflict any.”81 Rather, his “discretion” was subject to “limits,” of which the Constitution was one.82
The court in Rice bolstered its reasoning by considering what would have occurred had the warden held Gross beyond his sentence without a statute authorizing him to do so.83 The court had little difficulty concluding the result would have been the same. The warden still would have “deprive[d] the prisoner of his liberty without any process of law and without any legal excuse or justification whatever.”84 Because legislatures do not have the power to transform acts that would be unconstitutional into constitutional ones, the statute clearly could not shield the warden from liability by merely granting him “discretion.”
Neither Rice nor its reasoning was an anomaly. As Professor Edwin Borchard summarized the existing law in 1924, “the Supreme Court has never hesitated to enjoin or otherwise control the instrument or agent of the State acting under an unconstitutional statute or, of course, acting unconstitutionally in the execution of a valid statute.”85
By the end of the nineteenth century, the Supreme Court began developing immunity doctrines that broke with the common law’s strict liability regime, as many scholars have documented.86 But even then, the Court did not abandon the fundamental principle that “discretion” does not transcend constitutional limits, as exemplified by the two patterns of cases described above.87 This is why, for instance, the Supreme Court has reiterated that “[o]f course, a prosecutor’s discretion is ‘subject to constitutional constraints.’”88 So when the FTCA was enacted, it codified “discretion” against a well-developed background principle that “discretion” referred only to the “discretion contemplated by law.”89
II. The FTCA Upshot
Whether the discretionary function exception applies to tortious conduct that is also a constitutional violation is one of many contested questions about the exception’s meaning. The FTCA does not include a definition of the phrase “discretionary function or duty.”90 As a result, courts have long struggled to determine the exception’s bounds.91 The Supreme Court’s test for determining whether the exception applies offers little additional guidance.92 Under that test, if the conduct “involves an element of judgment or choice” “grounded in social, economic, and political policy” considerations, the exception applies.93 But, as one treatise puts it, “the exact boundaries of the exception remain unclear.”94
This Part argues that the common law helps to illuminate those boundaries, particularly those drawn by the Constitution. The common law often plays a “gap-filling role in statutory interpretation.”95 As Justice Thomas once explained, the Supreme Court “presume[s] that Congress legislates against the backdrop of the common law.”96 So when a statute uses a “term[] of art” that took on a particular meaning at common law,97 the Court often relies on the common law as “an authoritative external source of [the statute’s] meaning,” just as it would a dictionary or a semantic canon.98 The FTCA is particularly well-suited to this mode of construction. As the Supreme Court contended in 1962, “[i]t is evident that the Act was not patterned to operate with complete independence from . . . the common law.”99 Instead, the FTCA was devised to “build upon the legal relationships formulated and characterized by the States.”100
A. Incorporating Common Law “Discretion” into the FTCA
“Discretion,” as understood and applied at common law, would have been a familiar concept to the FTCA-enacting Congress.101 In the decades preceding the FTCA’s enactment, Congress evaluated thousands of private claims for indemnification based on tort judgments rendered against officers under the common law.102 When Congress enacted the FTCA to replace this scheme, its primary aim was to get the legislature out of the business of considering each damages claim individually.103 It was not to entirely restructure the substance of these suits — something the Supreme Court has recognized since the FTCA’s infancy.104 This is apparent from the way that claims under the Act piggyback off existing state tort regimes. As one treatise puts it, “the Act does not create new causes of action . . . in the sense of inventing new types of torts.”105 Rather, it simply waives sovereign immunity for tort claims available to plaintiffs suing a “private person” in the state where the act or omission occurred.106 The Supreme Court has described the Act as “merely substitut[ing] the District Courts for Congress as the agency to determine the validity and amount of the claims” that were previously considered by private bills.107
Because the FTCA was written against this rich common law backdrop and “discretion” had a recognizable meaning at common law, early commentators concluded that Congress must have intentionally invoked the phrase to codify the common law doctrine of nonliability for officers exercising acts requiring discretion.108 The Supreme Court recognized the common law doctrine’s relevance when it considered the exception for the first time in Dalehite v. United States.109 But the analogy did not catch hold. Struggling to define the exception’s vague contours in practice, the Supreme Court began to craft various tests to liquidate the exception’s meaning.110 The result is that modern discretionary function jurisprudence is rooted in a judicially constructed test that is largely disconnected from the original meaning of the statutory text.111 It is possible that the Court opted not to adopt the analogy this Note is propounding because many scholars and courts at the time were critical of the ministerial/discretionary model, in large part because they believed the dichotomy between the two was muddled.112 But those criticisms, however accurate they may be, should not be a barrier to using the analogy in this context. After all, the relevant question is whether Congress incorporated the common law definition of “discretion” into the FTCA at all, not whether the specific contours of the ministerial/discretionary distinction were well defined.
And there is strong evidence Congress intended the analogy. As the Supreme Court noted in Dalehite, Congress added the exception later on in the drafting process “as a clarifying amendment” to ensure that courts adjudicating FTCA claims would continue to employ the common law doctrine governing liability for discretionary officials.113 The House Committee on the Judiciary was advised that, even without such clarification, “[i]t [wa]s not probable that the courts would extend a [T]ort [C]laims [A]ct into the realm of the validity of . . . discretionary administrative action,” as then–Assistant Attorney General Shea explained in a House hearing.114 Instead, the FTCA’s drafters thought such cases would have been “exempted” already by “judicial construction.”115 The bill was modified only to “make [this] explicit.”116
To be sure, the entire purpose of the discretionary function exception is to demarcate a category of cases in which the FTCA’s general waiver of the government’s immunity from suit “shall not apply.”117 By contrast, “discretion” at common law was used to determine an officer’s immunity from suit. And at common law, the scope of an officer’s immunity was not coterminous with the government’s. When an individual officer exceeded his authority by offending the Constitution, he could be sued even though the government could not.118 Indeed, officer suits in these cases were in effect a means of getting around the sovereign immunity of the state.119 Sovereign immunity would not bar such a claim against the officer precisely because the officer’s actions in such a situation were not “attributed to the sovereign.”120 Consequently, interpreting a waiver of sovereign immunity via an analogy to officer immunity may seem inapt.
But the analogy has a strong doctrinal basis. First, recall that Congress enacted the FTCA to contend with the relationship between sovereign immunity and officer liability at common law, as this Part has described. Because the FTCA was designed to replace the pre-FTCA regime — formally transferring the liability of government officers to the government itself — it makes sense that Congress would draw on the mechanics of officer liability in crafting this regime.
Second, consider that the rationales underlying official immunity are largely the same as those justifying sovereign immunity in the modern era. Courts and commentators have long rationalized official immunity as necessary to address two distinct but interrelated concerns. The first is that without immunity, public officers would be “unduly hampered” in the execution of their duties by the threat of liability,121 thus impeding the “effective administration of public affairs.”122 The second is that without immunity, courts would be forced to scrutinize the propriety of policymaking decisions, thereby threatening separation of powers.123 Though sovereign immunity was originally introduced in the United States as a vestige of the English common law axiom “the King can do no wrong,”124 it is sustained today on largely similar public policy grounds.125 Courts have long rationalized that without sovereign immunity, the government’s focus and resources would be unduly tied up in litigation, jeopardizing its ability to effectively govern.126 Likewise, scholars have argued that sovereign immunity prevents the kind of judicial second-guessing of a coordinate branch’s functions that undermines separation of powers.127 In light of these parallels, it makes sense to draw upon the common law principles of officer immunity to interpret a statute governing the government’s immunity from suit.
B. Operationalizing the FTCA’s Common Law Backdrop
If we accept the premise that the FTCA’s text points us toward the common law of officer immunity as a window into the meaning of the discretionary function exception, where does that take us?128 The history articulated in Part I suggests we should reject Judge Easterbrook’s conclusion that “the theme that ‘no one has discretion to violate the Constitution’ has nothing to do with the Federal Tort Claims Act.”129 After all, if “discretion” at common law was understood to refer only to “constitutionally permissible discretion,”130 one cannot disregard “constitutional theories” in determining the scope of the exception.131 Doing so would contravene the very text of the statute.
Text-based arguments to the contrary fail upon closer inspection. First, courts have emphasized that the exception applies to all acts of discretion “whether or not the discretion involved be abused.”132 And because an officer who acts unconstitutionally has abused their discretion, the argument goes, the exception applies to such conduct.133 Indeed, even the federal government has taken this position recently, embracing the litigating position that “application of the exception does not turn on whether the official has exercised the discretion in a permissible manner.”134 It has marshaled some dicta from the Supreme Court in support of this view.135 But unconstitutional conduct does not “abuse” discretion; it exceeds discretion. As Part I describes, acts that violated the Constitution at common law were treated as acts taken outside the realm of the officer’s discretionary authority. Acts that abuse discretion, by contrast, are merely errors in judgment, even if “monumental” and of “inexcusable proportions.”136 This is so because discretion vests officers with the power to use their authority “according to [their] own view of what is necessary and proper,” creating a zone that insulates officers who get that calculation wrong.137 Officers step outside that zone only by engaging in conduct that removes their discretion wholesale — such as acts that violate the Constitution.
The second and third contentions can be grouped together because they rely on the same category error. The FTCA applies only to state tort claims for which a “private person” could be liable.138 That “[t]he Constitution governs the conduct of public officials, not private ones” seems to be in tension with this premise.139 Indeed, in Federal Deposit Insurance Corp. v. Meyer,140 the Supreme Court explicitly held that a “constitutional tort claim is not ‘cognizable’” under the FTCA, relying largely on the “private person” language.141 Moreover, in 1988 Congress passed the Westfall Act, amending the FTCA to ensure it would not cover claims “brought for a violation of the Constitution.”142 But both the “private person” proviso and the Westfall Act limitation clarify the type of claim that can be brought under the FTCA. They say nothing about the types of arguments one can raise to defeat the government’s invocation of the discretionary function exception in response to their claims.143 A tort claim “brought for” tortious conduct is not “brought for a violation of the Constitution” just because the tortious conduct also could have been pled as a constitutional violation.144 Rather, a tort claim is brought for a violation of rights secured by common law. In this context, then, the Constitution enters into the equation to serve not as a basis for the plaintiff’s claim but only as a response to the government’s attempt to rely on the exception to defeat that claim.
III. Pleading the “Constitutionally Permissible” Interpretation
If the Constitution is relevant to whether the discretionary function exception applies, what must a plaintiff plead to prevent the exception from defeating her claim?145 The federal government has recently taken the position that a constitutional violation might foreclose the exception, but only if the plaintiff could show that the officer violated “a specific, clearly established constitutional directive.”146 The government derives this rule from the doctrine of qualified immunity, the modern standard of officer immunity applicable to Bivens claims brought against federal officers and claims brought against state officers for violations of federal law under 42 U.S.C. § 1983.147 Under that doctrine, an officer cannot be held liable for violating the Constitution unless the constitutional violation was “clearly established.”148 Constitutional violations are clearly established only when “existing precedent” has placed the “constitutional question beyond debate.”149 The upshot of that standard is that courts can decide an officer did violate the Constitution yet still not grant the plaintiff relief if the violation was not already articulated by existing case law at the time the officer acted.150 Ironically, the government justifies importing that standard into the discretionary function exception by arguing that “the common-law doctrine of official immunity . . . formed the backdrop to the FTCA’s discretionary function exception.”151
Courts would be wrong to embrace the clearly established law standard in this context. Plenty of scholars152 and even some Justices153 have explained how the modern doctrine of qualified immunity masquerades as rooted in the common law of our early republic while being entirely inconsistent with the actual immunity regimes that predominated at common law. And as this Note has shown, officers performing “discretionary functions” at common law did not get judicial grace for tortious wrongs that violated the Constitution whenever the constitutional right was not already clearly established by law. Instead, the common law treated an officer who committed a constitutional violation despite having “discretion” as having acted beyond the limits of his discretion and thus relinquished his official status and defenses the moment he committed the unconstitutional act. That the officer acted in good faith, believing his actions were lawful, was no defense.154
A clearly established law requirement would also be inconsistent with how courts apply the discretionary function exception to conduct that violates federal statutes, regulations, or policies. Under modern Supreme Court precedent, “if a ‘federal statute, regulation, or policy specifically prescribes a course of action’” for an officer to adhere to, the exception is inapplicable.155 This makes sense. In such instances, the officer “has no rightful option but to adhere to the directive.”156 In other words, they lack discretion to act. But courts don’t apply a clearly established law requirement when deciding whether a statute contains a specific directive that constrains an officer’s authority. In fact, they are frequently forced to interpret federal statutes, policies, and regulations anew when contending with claims that the officer’s conduct violated them.157 And they don’t withhold relief if there is no “existing precedent” from other courts considering the question and thus placing the issue “beyond debate” like the clearly established law standard requires.158 Instead, they grant relief if they determine that the official conduct was prescribed by statute or regulation — whether they are the first court to reach that conclusion or not. The same standard should apply equally to FTCA claims involving constitutional violations.
To be sure, plaintiffs should not be able to render the exception inapplicable by merely pleading that the officer’s conduct implicated abstract constitutional principles. After all, that would transform the exception from a “steel” shield to a “paper” one, as one district court put it159 — taking an exception that has been rendered overly broad by courts and turning it into one that will be overly narrow. But existing doctrines can guard against that. The discretionary function exception is jurisdictional, so the burden is on plaintiffs to prove that it does not apply.160 This most commonly occurs at the motion to dismiss stage, when the government invokes the exception to argue that the court does not have jurisdiction over the complaint because the complained of conduct implicates a discretionary function or duty.161 To survive this motion, plaintiffs will need to be able to make a colorable claim that is “plausible on its face” that a constitutional violation occurred.162 Courts evaluating this argument will frequently look to existing case law and constitutional principles to determine whether such a claim is plausible.163
At least one court has argued that it “would make no sense whatsoever” for the FTCA to require courts to engage in such a detailed analysis from the outset to determine whether the United States is subject to suit.164 But courts already do just that when determining whether the exception applies in any context.165 They routinely leaf through National Park Service manuals and site management plans, for instance, when plaintiffs bring tort claims for accidents that occurred at national parks, looking to determine whether Park Service policies vested park officials with broad discretion.166 Plus, district courts have long been tasked with assessing the merits of alleged constitutional violations at the pleadings stage in other contexts, such as 42 U.S.C. § 1983 suits, when the government moves to dismiss by arguing qualified immunity applies.167 Properly interpreted, the FTCA demands no different.
Conclusion
Today, Bivens is a largely nonexistent form of relief. But the FTCA does not need to be interpreted in a way that nullifies its remedial potential as well. Congress meant something specific when it wrote the discretionary function exception into the Act. One just needs to know where to look to discern its meaning. The Supreme Court has long instructed that the FTCA was “designed to build upon” the common law that developed in the context of tort suits for officer wrongs.168 That common law backdrop serves as a critical guide to understanding the meaning of this enigmatic exception. Once one understands that “discretion,” properly constructed in light of its common law meaning, refers to “constitutionally permissible discretion,” the exact boundaries of the exception become clearer. Though the discretionary function exception has been interpreted to retain the government’s immunity in a breathtaking swath of cases, the proper interpretation suggests its reach should not extend to a potentially large category of cases — those in which plaintiffs can successfully plead that a constitutional violation preserves the court’s jurisdiction to hear their FTCA case.