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 stthomas.edu.