Sunday, May 21, 2017

Federal Official Liability for Intentional Wrongdoing: Recovering the Past

Guest Blogger

Gregory Sisk

For the symposium on James Pfander, Constitutional Torts and the War on Terror.

In his new book “Constitutional Torts and the War on Terror,” Prof. James Pfander shines a bright spotlight on the “utter failure” of the federal courts to hold the United States Government accountable for unlawful harm deliberately visited on the individuals who have become collateral damage in the “War on Terror.” (61) With the litigation evidence painstakingly (and empirically) laid out by Pfander, constitutional tort actions brought by the victims of unconstitutional detention, harsh interrogation, and other outrages in the War on Terror have invariably gone down to defeat in the federal appellate courts. (167-180) Claims may be dismissed “on the ground that federal law does not create a right to sue the responsible officers for the particular form of mistreatment alleged,” or because the government has interposed a “state secrets” defense to foreclose further litigation, or because “the doctrine of qualified immunity blocks an action against the officers in question.” (xv)

Offering a historically-grounded solution, Pfander harkens back to the pre-Bivens nineteenth century practice by which federal courts entertained simple common-law trespass claims against federal officers for unlawful conduct that harmed individuals, uncomplicated by sovereign immunity or by qualified immunity for officers. These courts evaluated “the simple legality” of the governmental conduct, imposed compensatory damages on the individual officer who transgressed statutory or constitutional limits, and left the officer to seek indemnity from Congress. (7) Pfander urges our twenty-first century federal courts to craft a revived constitutional tort cause of action, one that directly adjudicates the constitutional legality of the government conduct and is not encumbered by the inappropriate political considerations and policy-justified hesitations that cloud current Bivens doctrine. (99-100) In Pfander’s view, this upgraded and enhanced Bivens constitutional tort claim would be a modern version of the nineteenth century common-law trespass action for official wrongdoing.

To get back where we started in the early Republic, Pfander argues that we do not need “the passage of more laws,” (159) but rather that the courts should “fundamentally rethink the manner in which they enforce constitutional rights protections through their Bivens jurisprudence” (xvii). Although I am persuaded that Pfander has identified a powerful paradigm for governmental accountability by resurrecting the nineteenth century practice, I suggest that “the passage of more laws” is exactly what we need. In particular, reform of the Federal Tort Claims Act would put claims against the government for intentional wrongdoing on more secure footing and do so in the simpler format of an ordinary common-law tort action.

What Pfander has highlighted in the context of the War on Terror is part of a larger legal regime in which intentional official wrongdoing at the federal level too often falls between the cracks of judicial compensation schemes. When federal agents are negligent, the injured have a well-worn path to compensation in court through the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b)(1), 2674-80. The FTCA makes the government itself liable for official carelessness under the tort law of the state in which the harm occurred. But when government officials deliberately and calculatedly direct harm against others, the road to recovery is muddy and covered with obstacles.

The FTCA excludes claims for most intentional torts, including assault and battery. 28 U.S.C. § 2680(h). While a “law enforcement proviso” permits some intentional tort claims to be pursued when the federal actor was as law enforcement agents, those who are victimized by other federal employees are left without any recourse. Even in law enforcement episodes, when the harm can be characterized as the consequence of a policy decision, the government regularly asserts the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a). To make matters worse, even when the government does escapes liability through exceptions to the FTCA, the injured party may be unable to pursue an alternative claim against the individual officer under state tort law. When the federal officer was acting within the scope of employment, the Westfall Act simultaneously substitutes the United States as the only defendant and immunizes the officer from personal liability. 28 U.S.C. § 2679(b)(1).

If the victim of intentional official wrongdoing looks instead to the Bivens constitutional tort remedy, he or she will encounter doubts about whether this judicially-implied cause of action is legitimate or a relic of judicial activism. Governmental policy interests, such as military discipline or protecting national security, may be asserted as counseling against extension of the remedy to any new context. And the officer typically will assert qualified immunity against liability, contending any constitutional constrains on conduct were not clearly established at the time of the episode.

In sum, the victim of intentional federal misconduct may be barred from relief against either the federal government or the individual officer.

In my view, the solution lies not in any hope for a judicial course correction in Bivens jurisprudence, but rather in a legislative overhaul of official liability for intentional wrongdoing by the federal government and its agents. And Pfander has done us the considerable service of offering a template for legislative reform, through the model of the nineteenth century common-law remedy against federal official wrongdoing.

In the historical background to his book, Pfander contends that the early Republic recognized a “sturdy common-law trespass action [that] provided individuals with an assured right to bring federal government officials to account.” (xxii) Through this common-law precursor, the courts “applied a fairly unyielding body of tort law in assessing the liability of government actors for invasions of rights to person and property,” unqualified by doctrines of official immunity. (3) In this way, the courts protected individual rights and articulated the fundamental limitations on justifiable government action. Given the doctrine of federal sovereign immunity, the federal government could not be held vicariously liable, but the equivalent was achieved by judicial imposition of damages against individual federal officers who crossed legal lines and congressional award of indemnity to the officer. (3) In the end, “Congress accepted financial responsibility for government wrongdoing.” (3)

Resurrecting this paradigm in the twenty-first century can best be accomplished through a statutory waiver of sovereign immunity, by updating the existing remedy against the government through the Federal Tort Claims Act. Rather than creating any new causes of action, the FTCA “build[s] upon the legal relationships formulated and characterized by the States” with respect to principles of tort law. Richards v. United States, 396 U.S. 1, 7 (1962). As Pfander correctly observes, the FTCA makes “no provision for constitutional suits against the federal government itself.” (19) But neither did the nineteenth century exemplar, which was grounded in the common law. By holding the federal government accountable for “ordinary common-law torts,” Dalehite v. United States, 346 U.S. 15, 28 (1953), the FTCA more closely resembles the common-law trespass remedy to curb governmental wrongdoing than does the judicially-devised Bivens constitutional tort cause of action.

The nineteenth century predecessor did not impose liability directly against the United States Government, yielding to federal sovereign immunity. However, as Pfander writes, a “striking feature of the system [was] an expectation that the officers in question would be indemnified and held harmless by Congress” by enactment of private bills that covered the amount of any judgment against the officer for damages. The FTCA accomplishes that purpose more forthrightly by shifting liability from the officer to the United States, thus holding the government directly accountable and removing the risk of undue sympathy by a trier of fact toward an individually-responsible defendant.

When enacted as an experiment in governmental liability in 1946, the FTCA was subject to a number of cautious exceptions and limitations. If the FTCA is to fulfill its promise of compensating individuals for harm by government wrongdoing, it must now be enhanced to offer relief for most forms of intentional wrongdoing. At present, claims for assault, battery, false arrest, and false imprisonment are excluded from FTCA recovery. 28 U.S.C. § 2680(h), thus eliminating the government itself as a target for liability. When the FTCA was originally enacted in 1946, the exclusion of intentional torts from the FTCA ran parallel with state respondeat superior rules that generally held the intentional tortfeasor-employee outside the scope of employment and thus subject to personal liability. With state respondeat superior rule expanding to impose vicarious employer liability for more and more intentional conduct by employees, and with the Westfall Act covering federal employees with personal immunity for actions within the scope of employment, the suit against the individual intentional tortfeasor may be barred. The evolution of the law demands repeal of the assault-and-battery exception lest the victims of intentional wrongdoing at the hands of government be left without any remedy in any court against any defendant.

By bringing intentional tort claims into the FTCA and using the vehicle of common-law torts to address governmental wrongdoing, the goal of clarity in articulating legal limits would also be achieved. As Pfander sees it, one of the great merits of the nineteenth century trespass claim against the officer was “a fairly unyielding rule of personal liability whenever an official of the United States invaded the legal rights of an individual.” (xix) Without any deflection by the doctrine of qualified immunity, early Republic courts “increasingly came to understand that their duty was to apply the law and determine . . . the legality of official action.” (9) Nor did national security or other policy concerns “trigger any hesitation on the part of the courts; they proceeded to the merits and adjudicated the claim.” (16)

An enhanced FTCA that provides a remedy for intentional torts would achieve the same clarity in legal framework for governmental action. When the United States is the defendant to a state tort law claim through the FTCA, qualified immunity is not available as a defense. Rivera v. United States, 928 F.2d 592, 609 (2d Cir. 1991) (“[Under the FTCA, t]he United States does not have the advantage of any defense of official immunity that the employee might have had[.]”) Instead, the defenses available to the federal government in an FTCA suit “are defined by the same body of law that creates the cause of action, the defenses available to the United States in FTCA suits are those that would be available to a private person under the relevant state law.”  Vidro v. United States, 720 F.3d 148, 151 (2d Cir. 2013). Because the government is directly liable under the FTCA, the concerns animating qualified immunity—about imposing personal liability for understandable legal errors by an individual—fall off the table.

Accordingly, under an FTCA regime for intentional wrongdoing at the federal level, constitutional or statutory justifications for the federal agent’s conduct would have to be raised as an affirmative defense under the pertinent state tort law. Because constitutional standards presumably would be a factor when evaluating justification for an arrest, detention, or exercise of force, those constitutional parameters would be adjudicated through the state tort vehicle. Notably, the justification affirmative defense to an intentional tort claim would turn on whether the law actually justified the agent’s conduct. Previous ambiguity in the law would not count as a valid justification for unlawful conduct. Thus, as with the nineteenth century regime, the FTCA approach should allow an individual to obtain “tort damages whenever the government official was thought to have invaded a legally protected interest without proper justification.” (xv)

There may (or may not) be a need to tweak the FTCA’s discretionary function exception, 28 U.S.C. § 2680(a), to ensure that purported policy justifications may not be raised to avoid accountability for constitutional violations. The Supreme Court already has held that the exception is not implicated unless there is room for the permissible exercise of discretion, Berkovitz v. United States, 486 U.S. 531, 536-48 (1988). If constitutional standards are not deemed sufficiently specific in direction to preclude the discretionary function exception, clarifying language would be in order to confirm that appropriate deference to policy-making prerogatives does not sanction violation of constitutional rights.

At the end of the day, Pfander and I are on the same road toward greater governmental accountability, even if we are traveling in different vehicles. While I believe that a legislative transport has greater promise and proceeds on more solid pavement, Pfander’s judicial conveyance would bring us to the same destination. We both wish to see “the federal judiciary . . . bearing institutional responsibility for governmental compliance with law.” (xv)

Gregory Sisk is Laghi Distinguished Chair in Law, University of St. Thomas (Minnesota).  You can reach him by email at gcsisk at

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