See, e.g., Tort, Black's Law Dictionary (10th10^th ed. 2014) (defining "tort" as "a civil wrong, other than breach of contract, for which a remedy may be obtained, usu[ally] in the form of [monetary] damages"). See generally CRS In Focus IF11291, Introduction to Tort LawCRS Legal Sidebar LSB10118, Tort and Litigation Reform in the 115th Congress, by Kevin M. Lewis (describing tort law, its purposes, and its relevance to Congress).

Bryant Walker Smith, Automated Driving and Product Liability, 2017 Mich. St. L. Rev. 1, 66. See also Jeffrey Axelrad, Federal Tort Claims Act Administrative Claims: Better Than Third-Party ADR For Resolving Federal Tort Claims, 52 Admin. L. Rev. 1331, 1332 (2000) (describing "an automobile accident" as a "paradigm" example of a tort).

E.g., Alberto Galasso & Hong Luo, Tort Reform and Innovation, 60 J.L. & Econ. 385, 386 (2017). See also John C. P. Goldberg, Twentieth-Century Tort Theory, 91 Geo. L.J. 513, 514–83 (2003) (discussing various scholarly accounts of the purposes of tort law).

See, e.g., Limone v. United States, 579 F.3d 79, 83 (1st1^st Cir. 2009) (affirming district court's determination that several Federal Bureau of Investigation (FBI) agents committed various torts).

E.g., Paul Figley, Ethical Intersections & The Federal Tort Claims Act: An Approach for Government Attorneys, 8 U. St. Thomas L.J. 347, 348–49 (2011) [hereinafter Figley, Ethical Intersections] (explaining that "[f]or a century and a half, . . . the United States' sovereign immunity . . . protected it from suit[s]" filed by "citizens injured by the torts of federal employees").

Axelrad, supra note 2, at 1332 ("Until the Federal Tort Claims Act was enacted in 1946, no general remedy existed for torts committed by federal agency employees."). See also Figley, Ethical Intersections, supra note 5, at 348 (explaining that, until 1946, "the only practical recourse for citizens injured by the torts of federal employees was to ask Congress to enact private legislation affording them relief").

28 U.S.C. §§ 1346(b), 2671–80. See also, e.g., id. §§ 2401(b), 2402 (additional provisions of the U.S. Code that apply in FTCA cases). See also infra "Background" (describing the circumstances leading to the FTCA's enactment in 1946).

See, e.g., 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.").

See, e.g., Gibson v. United States, 809 F.3d 807, 809–10 (5th5^th Cir. 2016) (lawsuit seeking compensation for injuries the plaintiff allegedly sustained as a result of falling off a stepladder while exiting a trailer owned by the Federal Emergency Management Agency).

Hallett v. United States, 877 F. Supp. 1423, 1425 (D. Nev. 1995). The court ultimately dismissed the plaintiffs' claims against the United States on a variety of grounds. See id. at 1427–32; Hallett v. United States, 850 F. Supp. 874, 877–83 (D. Nev. 1994).

See Andrade v. Chojnacki, 65 F. Supp. 2d 431, 441, 446 (W.D. Tex. 1999). The United States ultimately prevailed at trial and on appeal. See Andrade v. Chojnacki, 338 F.3d 448, 453 (5th5^th Cir. 2003).

This report periodically references decisions by federal appellate courts of various regional circuits. For purposes of brevity, references to a particular circuit in the body of this report (e.g., the First Circuit) refer to the U.S. Court of Appeals for that particular circuit.

See Limone v. United States, 579 F.3d 79, 83–84, 102, 108 (1st1^st Cir. 2009). See also Bravo v. United States, 583 F.3d 1297, 1299 n.2 (11th11^th Cir. 2009) (Carnes, J., concurring in the denial of rehearing en banc) ("Theopining that "[t]he facts in the Limone case grew out of one of the darkest chapters in the history of the FBI, which involved rampant misconduct and corruption in the Boston office spanning a period of at least two decades.").

The Bureau's Annual Report to Congress for Fiscal Year 2018, https://fiscal.treasury.gov/judgment-fund/annual-report-congress.html, lists all payments that the United States made to individual claimants under the FTCA and other compensatory statutes between October 1, 2017, and September 30, 2018. The sum of the "Confirmed Payment Amounts" for all reported "Litigative Payments" and "Administrative Payments" pursuant to the FTCA equaled a total of $318,912,807.83. This value includes only those payments that the Bureau explicitly coded as "Federal Tort Claims Act" payments.

Table 5 of the United States Attorneys' Annual Statistical Report, https://www.justice.gov/usao/page/file/1081801/1199336/download, reports that plaintiffs filed 2,9713,009 tort cases against the United States during FY2017FY2018, and that an additional 4,128211 tort cases against the federal government remained pending from the previous year. In addition, the report states that the Department of Justice received 3,019051 new tort-related civil matters during FY2017FY2018.

Mark C. Niles, "Nothing But Mischief": The Federal Tort Claims Act and the Scope of Discretionary Immunity, 54 Admin. L. Rev. 1275, 1309 (2002).

See Gregory C. Sisk, Official Wrongdoing and the Civil Liability of the Federal Government and Officers, 8 U. St. Thomas L.J. 295, 322 (2011) ("The claim for individual justice in court to an aggrieved person or entity must be balanced against the common good advanced by effective collective measures of government and the preservation of democratic rule."); David W. Fuller, Intentional Torts and Other Exceptions to the Federal Tort Claims Act, 8 U. St. Thomas L.J. 375, 377 (2011) ("While a concern for fairness and equity in favor of aggrieved plaintiffs certainly motivated legislators, that concern had to be balanced against others and was not the only impetus behind the FTCA."); Niles, supra note 16, at 1296 ("The critical objective in providing for governmental exposure to tort liability is arriving at the proper balance between positive disincentives for negligent and unreasonable activity on the one hand and negative liability threats which distort the proper decision making process on the other.").

See infra "Exceptions to the FTCA's Waiver of Sovereign Immunity."

See infra "Other Limitations on Damages."

See infra "Procedural Requirements."

This report is not intended to provide an exhaustive treatment of all topics related to the FTCA. Treatises that analyze the FTCA in greater depth include Lester S. Jayson & Hon. Robert C. Longstreth, Handling Tort Claims: Administrative and Judicial Remedies (2005) and Gregory C. Sisk, Litigation with the Federal Government: Cases and Materials (Foundation Press, 2d ed. 2008).

See infra "Background."

See infra id.; "The Preclusion of Individual Employee Tort Liability Under the FTCA."

See infra "Exceptions to the FTCA's Waiver of Sovereign Immunity."

See infra "Other Limitations on Damages."

See infra "Procedural Requirements."

See infra "Legislative Proposals to Amend the FTCA."

See Harbury v. Hayden, 522 F.3d 413, 417 (D.C. Cir. 2008).

See id.

See infra "The Preclusion of Individual Employee Tort Liability Under the FTCA."

See, e.g., Stephen G. Gilles, The Judgment-Proof Society, 63 Wash. & Lee L. Rev. 603, 606 (2006) ("[W]hen it comes to larger, litigable [tort] claims, many Americans are 'judgment-proof': They lack sufficient assets (or sufficient collectible assets) to pay the judgment in full (or even in substantial part)."); Harbury, 522 F.3d at 417 (describing "federal employee[s]" as "potentially judgment-proof").

See Harbury, 522 F.3d at 417.

See Figley, Ethical Intersections, supra note 5, at 361 ("From the perspective of a plaintiff . . . for whom the FTCA provides a remedy, the government is the very best sort of deep pocket defendant."); Axelrad, supra note 2, at 1333 (describing the United States as "the ultimate 'deep pocket'"); Richard H. Seamon, Causation and the Discretionary Function Exception to the Federal Tort Claims Act, 30 U.C. Davis L. Rev. 691, 739 (1997) ("There is no defendant with a deeper pocket than the United States."). To that end, Congress has created a standing appropriation from which successful claimants may collect FTCA judgments and settlements known as the "Judgment Fund." 31 U.S.C. § 1304. See also James E. Pfander & Neil Aggarwal, Bivens, the Judgment Bar, and the Perils of Dynamic Textualism, 8 U. St. Thomas L.J. 417, 426–27 & nn.51–52 (describing the Judgment Fund and its history); Figley, Ethical Intersections, supra note 5, at 352–54 (same).

See Harbury, 522 F.3d at 417.

E.g., Pornomo v. United States, 814 F.3d 681, 687 (4th4^th Cir. 2016) ("The default position is that the federal government is immune to suit."); Lipsey v. United States, 879 F.3d 249, 253 (7th7^th Cir. 2018) ("The United States as sovereign is immune from suit unless it has consented to be sued."); Evans v. United States, 876 F.3d 375, 380 (1st1^st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018 Cir. 2017) ("The United States is immune from suit without its consent.").

Figley, Ethical Intersections, supra note 5, at 348–49 (explaining that, "for a century and a half, . . . the United States' sovereign immunity . . . protected it from suit" against "citizens injured by the torts of federal employees").

Id. at 348. See also Axelrad, supra note 2, at 1332 ("Until the [FTCA] was enacted in 1946, no general remedy existed for torts committed by federal agency employees.").

See, e.g., Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983).

Figley, Ethical Intersections, supra note 5, at 350 (claiming that "Members of Congress had long recognized that" private bills were "a poor way to resolve private claims against the government").

Id. See also Helen Hershkoff, Early Warnings, Thirteenth Chimes: Dismissed Federal-Tort Suits, Public Accountability, and Congressional Oversight, 2015 Mich. St. L. Rev. 183, 187 (describing the significant burdens of "investigating the thousands of tort claims submitted to [Congress] each year for payment and enacting legislation for any claimant Congress chose to compensate").

Stephen L. Nelson, The King's Wrongs and the Federal District Courts: Understanding the Discretionary Function Exception to the Federal Tort Claims Act, 51 S. Tex. L. Rev. 259, 267 (2009). See also Axelrad, supra note 2, at 1332 ("Favoritism in Congress . . . could make or break the claimant's ability to be made whole.").

See, e.g., Nelson, supra note 41, at 268–71 (discussing the FTCA's legislative history).

E.g., Evans v. United States, 876 F.3d 375, 380 (1st1^st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018 Cir. 2017).

Notably, however, "the United States . . . has not rendered itself liable under [the FTCA] for constitutional tort claims." FDIC v. Meyer, 510 U.S. 471, 478 (1994) (emphasis added). See also Dianne Rosky, Respondeat Inferior: Determining the United States' Liability for the Intentional Torts of Federal Law Enforcement Officials, 36 U.C. Davis L. Rev. 895, 942 n.166 (2003) ("Repeated subsequent attempts to pass legislation creating federal liability for constitutional torts have failed."). As a general matter, "federal constitutional claims for damages are cognizable only under" the Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), "which runs against individual governmental officers personally," Loumiet v. United States, 828 F.3d 935, 945 (D.C. Cir. 2016), or under the Tucker Act, which waives the government's immunity against certain types of constitutional claims under specified conditions. See, e.g., Paret-Ruiz v. United States, 827 F.3d 167, 176 (1st1^st Cir. 2016) (citing 28 U.S.C. § 1491(a)(1)). Nevertheless—and as explained below—even though constitutional tort claims are not themselves actionable under the FTCA, whether a government employee transgressed constitutional bounds while performing his duties may nonetheless inform whether an exception to the FTCA's general waiver of sovereign immunity bars a plaintiff's nonconstitutional tort claim. See infra notes 189–194193–198 and accompanying text.

In addition to the FTCA, other federal statutes may also allow persons to obtain compensation from the United States for injuries or property damage caused by an individual acting on the United States's behalf. See, e.g., 10 U.S.C. § 2733(a) (allowing the armed forces to "settle[] and pay" certain "claim[s] against the United States for" property loss, personal injury, or death caused by an officer or employee of the armed forces); id. § 2734(a) (allowing the armed forces to "settle and pay" certain "claim[s] against the United States" brought by an "inhabitant of a foreign country" for property loss, personal injury, or death). See generally Lt. Cmdr. Clyde A. Haig, Discretionary Activities of Federal Agents Vis-A-Vis the Federal Tort Claims Act and the Military Claims Act: Are Discretionary Activities Protected at the Administrative Adjudication Level, and to What Extent Should They Be Protected?, 183 Mil. L. Rev. 110, 110–50 (2005) (comparing 10 U.S.C. § 2733(a) to the FTCA).

See infra "Employees and Independent Contractors."

Meyer, 510 U.S. at 477 (quoting 28 U.S.C. § 1346(b)).

Pfander & Aggarwal, supra note 33, at 424. See also, e.g., Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983) (noting that Congress enacted the FTCA "in the interest of providing a more efficient means of compensation" than "securing recompense by private bill").

Figley, Ethical Intersections, supra note 5, at 347. See also Hershkoff, supra note 40, at 196 (explaining that the FTCA "by design shifted responsibility for disputes about government negligence from Congress to the Article III courts").

Pfander & Aggarwal, supra note 33, at 424. See also, e.g., Sutton v. United States, 819 F.2d 1289, 1292 (5th5^th Cir. 1987) (explaining that Congress enacted the FTCA "to afford easy and simple access to the federal courts for persons injured by the activities of government" (quoting Collins v. United States, 783 F.2d 1225, 1233 (5th5^th Cir. 1986) (Brown, J., concurring))).

Loumiet v. United States, 828 F.3d 935, 941 (D.C. Cir. 2016).

E.g., Pornomo v. United States, 814 F.3d 681, 687 (4th4^th Cir. 2016) ("The FTCA does not create a new cause of action; rather, it permits the United States to be held liable in tort by providing a limited waiver of sovereign immunity."); Raplee v. United States, 842 F.3d 328, 331 (4th4^th Cir. 2016) (explaining that "the FTCA merely waives sovereign immunity to make the United States amenable to a state tort suit"), cert. denied, 137 S. Ct. 2274 (June 19, 2017); Hornbeck Offshore Transp., LLC v. United States, 569 F.3d 506, 508 (D.C. Cir. 2009) ("This statutory text does not create a cause of action against the United States; it allows the United States to be liable if a private party would be liable under similar circumstances in the relevant jurisdiction.").

Raplee, 842 F.3d at 331. See also, e.g., 28 U.S.C. § 1346(b)(1) (providing that the United States may be liable to the plaintiff in tort under the FTCA "if a private person[] would be liable to the claimant in accordance with the law of the place where the act or omission occurred"); Garling v. EPA, 849 F.3d 1289, 1294 (10th10^th Cir. 2017) ("State substantive law applies to suits brought against the United States under the FTCA." (quoting Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1117 (10th10^th Cir. 2004))). Because "state law operates in the FTCA not of its own force, but by congressional incorporation[,] [s]everal commentators have cited the FTCA as a relatively unusual example of state law that operates in the federal system by congressional choice." Rosky, supra note 44, at 957.

Richards v. United States, 369 U.S. 1, 6 (1962). See also, e.g., 28 U.S.C. § 2674 ("The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.").

Niles, supra note 16, at 1300. See also Fuller, supra note 17, at 377 ("Congress never intended the FTCA as a comprehensive waiver of governmental immunity from tort liability.").

Niles, supra note 16, at 1300.

See infra "Exceptions to the FTCA's Waiver of Sovereign Immunity"; "Other Limitations on Damages"; "Procedural Requirements."

28 U.S.C. § 1346(b)(1) ("Subject to the provisions of chapter 171 of this title, the district courts, together with . . . the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions against the United States . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government . . . ."). A litigant aggrieved by a district or territorial court's judgment in an FTCA case generally has the right to appeal to a regional U.S. Court of Appeals. See id. § 1291 (providing that, with limited exceptions, "the courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . and the District Court of the Virgin Islands"). A litigant aggrieved by the U.S. Court of Appeals' ruling in an FTCA case may then request that the U.S. Supreme Court exercise its discretionary authority to review the case. See id. § 1254 ("Cases in the courts of appeals may be reviewed by the Supreme Court . . . [b]y writ of certiorari granted upon the petition of any party to any civil . . . case . . . after rendition of judgment.").

Matthew L. Zabel, Advisory Juries and Their Use and Misuse in Federal Tort Claims Act Cases, 2003 B.Y.U. L. Rev. 185, 205 (citing 92 Cong. Rec. 10,092 (1946) (statement of Rep. Scrivner)).

28 U.S.C. § 2402; Carlson v. Green, 446 U.S. 14, 22 (1980) ("A plaintiff cannot opt for a jury in an FTCA action."). See also Osborn v. Haley, 549 U.S. 225, 252 (2007) (explaining that the U.S. Constitution does not require a jury trial in FTCA cases because "the Seventh Amendment, which preserves the right to a jury trial . . . does not apply to proceedings against the sovereign"). But see Zabel, supra note 59, at 194 (noting that federal courts sometimes empanel "advisory juries" in FTCA cases to render nonbinding verdicts); Allgeier v. United States, 909 F.2d 869, 875 (6th6^th Cir. 1990) (FTCA case in which a "trial before an advisory jury took place").

See, e.g., Jude v. Comm'r of Soc. Sec., 908 F.3d 152, 157 n.4 (6^th Cir. 2018) ("[T]he only proper defendant in an FTCA claim is the United States.").

Levin v. United States, 568 U.S. 503, 509 (2013). See also 28 U.S.C. § 2679(b)(1) ("The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim . . . .").

Levin, 568 U.S. at 509.

28 U.S.C. § 2679(b)(1). This provision of the FTCA is "often called the Westfall Act." Levin, 568 U.S. at 509.

Adams v. United States, 420 F.3d 1049, 1054 (9th9^th Cir. 2005).

See, e.g., United States v. Smith, 499 U.S. 160, 165 (1991) (concluding that federal law "immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government").

See infra "Employees and Independent Contractors."

See infra "Scope of Employment."

28 U.S.C. § 1346(b)(1) (emphasis added).

See, e.g., Kinebrew v. United States, No. 15-6855, 2016 WL 3014887, at *1 (E.D. Pa. May 26, 2016) ("The United States has not waived it sovereign immunity under the FTCA for claims based on the alleged negligence of non-employees . . . ."); Gonzalez v. United States, C.A. No. C-06-352, 2007 WL 2008675, at *3 (S.D. Tex. July 5, 2007) ("The FTCA does not impose liability on the government for the acts of non-employees . . . .").

28 U.S.C. § 2671.

See, e.g., U.S. Tobacco Coop. Inc. v. Big S. Wholesale of Va., LLC, 899 F.3d 236, 248 (4th4^th Cir. 2018) ("[A]n 'employee' for purposes of the [FTCA] need not have formal employee status.").

See, e.g., Creel v. United States, 598 F.3d 210, 211–15 (5th5^th Cir. 2010) (concluding that, because individual physician at Veterans Affairs Medical Center was an independent contractor rather than an employee of the federal government, plaintiff's medical malpractice claim against that surgeon could proceed); Woodruff v. Covington, 389 F.3d 1117, 1125 (10th10^th Cir. 2004) (affirming denial of individual defendants' motion to dismiss the plaintiff's tort claims against them and to substitute the United States as the defendant on the ground that the individual defendants were "not 'federal employees'").

See infra "The Boyle Rule."

See, e.g., Creel, 598 F.3d at 211–15 (remanding with instructions to deny nonemployee's motion to dismiss and to grant United States' motion to dismiss); Ezekiel v. Michel, 66 F.3d 894, 903–04 (7th7^th Cir. 1995) (explaining that if individual defendant was "an independent contractor rather than a federal employee," the plaintiff's case against that defendant could proceed).

See, e.g., In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 331 (4th4^th Cir. 2014) ("Since the United States began its military operations in Afghanistan and Iraq in 2001 and 2003, respectively, its use of private contractors to support its mission has risen to 'unprecedented levels.' At times, the number of contract employees has exceeded the number of military personnel alongside whom they work in these warzones." (quoting Comm'n on Wartime Contracting in Iraq and Afghanistan, At What Risk? Correcting Over-Reliance on Contractors in Contingency Operations 1 (Feb. 24, 2011))).

See 28 U.S.C. § 2671; U.S. Tobacco, 899 F.3d at 248 ("An 'employee' does not include an 'independent contractor' working for the government.") (citing 28 U.S.C. § 2671; United States v. Orleans, 425 U.S. 807, 814 (1976)).

Edison v. United States, 822 F.3d 510, 514 (9th9^th Cir. 2016). Accord, e.g., Carroll v. United States, 661 F.3d 87, 93 (1st1^st Cir. 2011) ("The FTCA expressly does not waive the government's immunity for claims arising from the acts or omissions of independent contractors."); Tsosie v. United States, 452 F.3d 1161, 1163 (10th10^th Cir. 2006) ("Although 'employees' of the government include officers and employees of federal agencies, 'independent contractors' are not 'employees.' As such, 'the FTCA does not authorize suits based on the acts of independent contractors or their employees.'" (quoting Curry v. United States, 97 F.3d 412, 414 (10th10^th Cir. 1996))).

See, e.g., Creel, 598 F.3d at 211–15 (concluding that, because individual physician at Veterans Affairs Medical Center was an independent contractor rather than an employee of the federal government, plaintiff's medical malpractice claim against that surgeon could proceed); Woodruff v. Covington, 389 F.3d 1117, 1125 (10th10^th Cir. 2004) (affirming denial of individual defendants' motion to dismiss the plaintiff's tort claims and to substitute the United States as the defendant on the ground that the defendants were "not 'federal employees'"); Ezekiel, 66 F.3d at 903–04 (concluding that if individual defendant was "an independent contractor rather than a federal employee," the plaintiff's case against the defendant could proceed). But see infra "The Boyle Rule."

Compare, e.g., U.S. Tobacco, 899 F.3d at 248 n.4 ("Although none are dispositive of the question, factors that courts may consider in making the determination [of whether the tortfeasor is an independent contractor] include: '(a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business.'" (quoting Robb v. United States, 80 F.3d 884, 889 n.5 (4th4^th Cir. 1996))), and Creel, 598 F.3d at 213–14 (listing similar factors), with, e.g., Woodruff, 389 F.3d at 1126 ("We have devised seven factors to guide this determination: (1) the intent of the parties; (2) whether the United States controls only the end result or may also control the manner and method of reaching the result; (3) whether the person uses his own equipment or that of the United States; (4) who provides liability insurance; (5) who pays social security tax; (6) whether federal regulations prohibit federal employees from performing such contracts; and (7) whether the individual has authority to subcontract to others." (quoting Lilly v. Fieldstone, 876 F.2d 857, 859 (10th10^th Cir. 1989))).

U.S. Tobacco, 899 F.3d at 248. See also, e.g., Creel, 598 F.3d at 213 (same); Bryant v. United States, No. CIV 98-1495 PCT RCB, 2000 WL 33201357, at *5 (D. Ariz. Jan. 11, 2000) (same).

U.S. Tobacco, 899 F.3d at 248 (quoting Wood v. Standard Prods. Co., 671 F.2d 825, 829 (4th4^th Cir. 1982)) (internal quotation marks omitted).

See, e.g., Bird v. United States, 949 F.2d 1079, 1080 (10th10^th Cir. 1991) ("[A]t the time in question the [certified registered nurse anesthetist] was not an independent contractor but was an employee of the government[.]"); Bryant, 2000 WL 33201357, at *11 (concluding that nurse anesthetist "was acting as an employee of the federal government within the meaning of the FTCA").

See Bryant, 2000 WL 33201357, at *9 ("[T]he written policy and procedure of the Medical Center required either the chief anesthesiologist or the operating surgeon to exercise immediate clinical supervision of CRNAs . . . ."); id. at *9–10 ("[A] CRNA's ability to exercise his or her professional judgment is limited . . . [S]o long as the directions of the surgeon comply with standards of safe anesthesia practice, a CRNA is obligated to follow those directions even if he or she disagrees."); id. at *10 ("[T]he undisputed evidence of record demonstrates that CRNA Franc was subject to the supervision and control of operating surgeons when engaging in her activities as a nurse anesthetist. Unlike a physician, her actions in administering anesthesia were subject to the control of federal employees.").

Robb, 80 F.3d at 890 (citing numerous cases). See also Creel, 598 F.3d at 212 (concluding that orthopedic surgeon who performed surgical procedure at Veterans Affairs Medical Center "was an independent contractor"). Cf. Woodruff, 389 F.3d at 1128 (holding that defendant physicians failed to prove they were federal employees for FTCA purposes).

That said, there is no per se rule "that a physician must always be deemed an independent contractor;" whether any particular physician hired by the government qualifies as an independent contractor depends on the facts of each case. Robb, 80 F.3d at 889. See also Ezekiel v. Michel, 66 F.3d 894, 903–04 (7th7^th Cir. 1995) (concluding that "resident physician in training" was "an 'employee of the Government' for purposes of the FTCA").

Moreover, Congress has provided that, under specified circumstances, certain types of medical contractors qualify as employees of the federal government for the purposes of the FTCA. See Glenn v. Performance Anesthesia, P.A., No. 5:09-CV-00309-BR, 2010 WL 3420538, at *5 (E.D.N.C. Aug. 27, 2010), aff'd, Hancox v. Performance Anesthesia, P.A., 455 F. App'x 369 (4^th Cir. 2011) ("[P]ursuant to the Gonzalez Act, health care providers who serve under a personal services contract authorized by the U.S. Secretary of Defense are deemed to be employees of the government for the purpose of disposing of personal injury claims."); 10 U.S.C. § 1089 (the Gonzalez Act).

See, e.g., Creel, 598 F.3d at 211–15 (concluding that, because individual physician at Veterans Affairs Medical Center was an independent contractor rather than an employee of the federal government, plaintiff's medical malpractice claim against that surgeon could proceed); Woodruff, 389 F.3d at 1125 (affirming denial of individual defendants' motion to dismiss the plaintiff's tort claims and to substitute the United States as the defendant on the ground that the defendants were "not 'federal employees'"); Ezekiel, 66 F.3d at 903–04 (concluding that if individual defendant was "an independent contractor rather than a federal employee," the plaintiff's case against the defendant could proceed).

487 U.S. 500, 507 (1988) (quoting United States v. Kimbell Foods, Inc., 440 U.S. 715, 728 (1979); Wallis v. Pan Am. Petroleum Corp., 384 U.S. 63, 68 (1966)).

See, e.g., Boyle, 487 U.S. at 512 ("[S]tate law which holds Government contractors liable for design defects in military equipment does in some circumstances present a 'significant conflict' with federal policy and must be displaced."); Saleh v. Titan Corp., 580 F.3d 1, 8 (D.C. Cir. 2009) ("[W]hether the defendant is the military itself or its contractor, the prospect of military personnel being haled into lengthy and distracting court or deposition proceedings is the same where, as here, contract employees are so inextricably embedded in the military structure. Such proceedings, no doubt, will as often as not devolve into an exercise in finger-pointing between the defendant contractor and the military, requiring extensive judicial probing of the government's wartime policies. Allowance of such suits will surely hamper military flexibility and cost-effectiveness, as contractors may prove reluctant to expose their employees to litigation-prone combat situations."); Koohi v. United States, 976 F.2d 1328, 1336–37 (9th9^th Cir. 1992) (concluding that federal law preempted claims against private companies involved in construction of air defense system). But see Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 481 (3d Cir. 2013) (allowing claim against defense contractor to proceed where "[t]he military did not retain command authority over" the contractor); In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 995–96, 1000–01 (9th9^th Cir. 2008) (concluding that federal statute governing liability for nuclear accidents precluded government contractor from asserting Boyle defense against claims arising out of nuclear incident).

See, e.g., Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720, 731 (9th9^th Cir. 2015) ("In the Ninth Circuit, however, the government contractor defense is only available to contractors who design and manufacture military equipment. This precedent renders the government contractor defense unavailable to VSE, a non-military contractor.") (internal citations, quotation marks, and brackets omitted). But cf. In re Katrina Canal Breaches Litig., 620 F.3d 455, 459 n.3 (5th5^th Cir. 2010) (declining to decide whether "Boyle is applicable only to military contractors").

See supra "Background"; "The Preclusion of Individual Employee Tort Liability Under the FTCA."

28 U.S.C. § 1346(b)(1).

Folley v. Henderson, 175 F. Supp. 2d 1007, 1016 (S.D. Ohio 2001) (emphasis added). See also, e.g., Zeranti v. United States, 167 F. Supp. 3d 465, 468–69 (W.D.N.Y. 2016) ("[I]f the federal employee was acting outside the scope of his or her employment, then the FTCA does not apply and the Court does not have jurisdiction over a vicarious liability claim asserted against the United States for its employee's negligence.").

Folley, 175 F. Supp. 2d at 1016. See also, e.g., Dowdy v. Hercules, No. 07-CIV-2488(EVEN) (LB), 2010 WL 169624, at *5 (E.D.N.Y. Jan. 15, 2010) ("As implied by the text of the FTCA, lawsuits against federal employees arising out of actions taken outside of the scope of their federal employment would face no sovereign immunity obstacles, because such claims are against those individuals, not the United States."); Moreland v. Barrette, No. CR 05-480 TUC DCB, 2007 WL 2480235, at *3 (D. Ariz. Aug. 28, 2007) (concluding that because doctor employed by army hospital "did not act within the scope of his employment" at the time he allegedly committed a tort, "the Government [wa]s not liable under the FTCA for his alleged negligent acts," and the doctor himself was "not immune from suit under the FTCA").

See, e.g., Fountain v. Karim, 838 F.3d 129, 135 (2d Cir. 2016) ("We interpret the FTCA's 'scope of employment' requirement in accordance with the . . . law of the jurisdiction where the tort occurred."); Johnson v. United States, 534 F.3d 958, 963 (8th8^th Cir. 2008) ("Scope of employment questions are governed by the law of the state where the alleged tortious acts took place.").

Compare, e.g., Johnson, 534 F.3d at 963 ("In determining whether an employee's act is within the scope of employment [under South Dakota law,] a court considers a number of factors, including: (1) whether the act is commonly done in the course of business; (2) the time, place, and purpose of the act; (3) whether the act is within the enterprise of the master; the similarity of the act done to the act authorized; (4) whether the means of doing harm has been furnished by the master; and (5) the extent of departure from the normal method of accomplishing an authorized result."), with, e.g., Rodriguez v. Sarabyn, 129 F.3d 760, 766 (5th5^th Cir. 1997) ("Texas's general rule . . . is that an employee acts within his scope of employment if the act is done (1) within the employee's general authority, (2) in furtherance of the employer's business, and (3) for the accomplishment of the objective for which the employee was employed."). See also Paula Dalley, Destroying the Scope of Employment, 55 Washburn L.J. 637, 641 (2016) ("[T]he definition of 'scope of employment' varies from state to state.").

See, e.g., Merlonghi v. United States, 620 F.3d 50, 55 (1st1^st Cir. 2010) ("Massachusetts courts . . . determine whether an employee's conduct is within the scope of his employment based on (1) 'whether the conduct in question is of the kind the employee is hired to perform,' (2) 'whether it occurs within authorized time and space limits,' and (3) 'whether it is motivated, at least in part, by a purpose to serve the employer.'" (quoting Clickner v. City of Lowell, 663 N.E.2d 852, 855 (Mass. 1996))); Rodriguez, 129 F.3d at 766 ("Texas's general rule . . . is that an employee acts within his scope of employment if the act is done (1) within the employee's general authority, (2) in furtherance of the employer's business, and (3) for the accomplishment of the objective for which the employee was employed."); Callaham ex rel. Foster v. United States, C/A No. 3:12-cv-579-JFA, 2012 WL 1835366, at *2 (D.S.C. May 21, 2012) ("In South Carolina, an act done for the purpose of benefitting the employer is considered within the scope of employment."); Birke v. United States, No. 4:08CV1608MLM, 2009 WL 1605771, at *4 (E.D. Mo. June 8, 2009) ("Florida law provides [that] to establish employer liability based on its employee's acting within the scope of his employment, a plaintiff must show that '(1) the conduct is of the kind the employee is hired to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part by a purpose to serve the master.'" (quoting Fernandez v. Fla. Nat'l Coll., Inc., 925 So.2d 1096, 1100 (Fla. Dist. Ct. App. 2006))).

See, e.g., Doe, 929 F.3d at 166 ("[E]ven intentional torts and illegal conduct may fall within employees' scope of employment. In considering whether an intentional tort or an illegal act falls within the scope of employment, the inquiry is whether the tort or crime was a foreseeable aspect of the employee's employment.") (internal citations omitted).

965 F. Supp. 1220, 1222–23 (E.D. Wis. 1997).

Id. at 1223.

Id.

620 F.3d at 52.

Id. at 52.

Id.

Id. at 53.

Id. at 56.

Id.

Id.

Id. at 57.

Id. at 58.

Courts have disagreed regarding whether the Attorney General may certify a corporation, rather than a natural person, as a federal "employee" that is immune from liability under the FTCA. Compare Adams v. United States, 420 F.3d 1049, 1055 (9th9^th Cir. 2005) ("Corporate entities . . . are not eligible for immunity certification as government employees under the FTCA."), with B & A Marine Co. v. Am. Foreign Shipping Co., 23 F.3d 709, 715–16 (2d Cir. 1994) (affirming district court's ruling that corporate entity was an "employee[] of the Government acting within the scope of [its] employment" for FTCA certification purposes).

See Hershkoff, supra note 40, at 200 (noting that injured persons will sometimes "file[] a garden-variety personal-injury suit" against an individual "in state court, not knowing that the tortfeasor is an agent or employee of the United States").

28 U.S.C. § 2679(d)(1)–(2).

Id.

Osborn v. Haley, 549 U.S. 225, 230 (2007). See also 28 U.S.C. § 2679(d)(1)–(2).

Osborn, 549 U.S. at 230 ("Upon the Attorney General's certification" in a case "commenced in state court, the case is to be removed to a federal district court, and the certification remains 'conclusive . . . for purposes of removal.'" (quoting 28 U.S.C. § 2679(d)(2))); id. at 231 ("Once certification and removal are effected, exclusive competence to adjudicate the case resides in the federal court, and that court may not remand the suit to the state court.").

Id. at 231.

Id. at 238.

Id. at 252.

Harbury v. Hayden, 522 F.3d 413, 416 (D.C. Cir. 2008) (citing 28 U.S.C. § 2679(d)(1)).

Id. at 417.

See infra "Exceptions to the FTCA's Waiver of Sovereign Immunity."

United States v. Smith, 499 U.S. 160, 165 (1991). See also Hershkoff, supra note 40, at 201 (explaining that the FTCA "bars relief against individual employees for torts committed in the course of employment even if the FTCA precludes relief against the government").

B & A Marine Co. v. Am. Foreign Shipping Co., 23 F.3d 709, 715 (2d Cir. 1994).

Harbury, 522 F.3d at 417. Cf. Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420 (1995) (holding that the Attorney General's scope-of-employment certification under the FTCA is subject to judicial review).

Harbury, 522 F.3d at 417.

Id.

Id.

Harbury, 522 F.3d at 417.

See id. ("From the plaintiff's perspective, [the federal government substituting itself as the sole defendant] can produce a net positive: Although the plaintiff must now litigate against the Federal Government, the original defendant—a potentially judgment-proof federal employee—has been replaced by the seemingly bottomless U.S. Treasury.").

Pfander & Aggarwal, supra note 33, at 443 n.133.

Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 422 (1995) ("Ordinarily, scope-of-employment certifications occasion no contest.").

E.g., Doe, 929 F.3d at 160.

See Collins v. United States, 564 F.3d 833, 836 (7th7^th Cir. 2009) ("[T]he government, when it is held liable under the [FTCA], has no right of indemnity from its negligent employee.").

See Osborn v. Haley, 549 U.S. 225, 229 (2007) (explaining that the FTCA "accords federal employees absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties").

Fountain v. Karim, 838 F.3d 129, 133 n.3 (2d Cir. 2016) (citing 28 U.S.C. § 2679(d)(3)).

Harbury v. Hayden, 522 F.3d 413, 416 n.1 (D.C. Cir. 2008) (citing 28 U.S.C. § 2679(d)(3)–(4)).

Id.

See supra "Background."

See, e.g., Calderon v. United States, 123 F.3d 947, 948 (7th7^th Cir. 1997) (noting that the FTCA's "waiver of immunity is far from absolute," as "many important classes of tort claims are excepted from the Act's coverage").

Gray v. Bell, 712 F.2d 490, 506 (D.C. Cir. 1983).

See generally 28 U.S.C. § 2680(a)–(f), (h)–(n). In addition to Section 2680, other provisions of the U.S. Code—as well as certain judicially created doctrines—also preserve the United States' immunity from various types of tort suits. See, e.g., id. § 1346(b)(2) (providing that, notwithstanding the FTCA's general waiver of sovereign immunity, "no person convicted of a felony who is incarcerated while awaiting sentencing or while serving a sentence may bring a civil action against the United States . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act"); Laird v. Nelms, 406 U.S. 797, 802–03 (1972) (holding that the FTCA does "not authorize suit against the Government on claims based on strict liability for ultrahazardous activity"); United States v. Demko, 385 U.S. 149, 149–54 (1966) (holding that 18 U.S.C. § 4126, which entitles injured inmates to compensation under specified circumstances, barred injured prisoner from recovering additional damages under the FTCA); Williamson v. United States, 862 F.3d 577, 578–79 (6th6^th Cir. 2017) (holding that Federal Employees' Compensation Act precluded plaintiff from obtaining damages under the FTCA). See generally Fuller, supra note 17, at 381–32 ("Numerous other federal statutes either prohibit or provide their own single mechanism for potential recovery against the government and thus indirectly prevent claims that would otherwise be cognizable under the FTCA.").

See 28 U.S.C. § 2680(a). See also infra "The Discretionary Function Exception."

28 U.S.C. § 2680(b). See also, e.g., Dolan v. USPS, 546 U.S. 481, 483–92 (2006) (analyzing the scope of Section 2680(b)).

See 28 U.S.C. § 2680(c) (providing that, with four specified exceptions, the FTCA does not authorize claims "arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer"). See also, e.g., Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 215–28 (2008) (interpreting Section 2680(c)); DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1123–26 (9^th Cir.), cert. denied, 2019 WL 5301048 (Oct. 21, 2019) (applying Section 2680(c)'s "detention of goods exception").

"Admiralty" is defined as "the rules governing contract, tort, and workers'-compensation claims arising out of commerce on or over navigable water." Admiralty, Black's Law Dictionary (10th10^th ed. 2014).

See 28 U.S.C. § 2680(d) (providing that the FTCA does not apply to "[a]ny claim for which a remedy is provided by chapter 309 or 311 of title 46 relating to claims or suits in admiralty against the United States").

28 U.S.C. § 2680(e). Among other things, the Trading with the Enemy Act "affords the President broad powers to regulate, license, and prohibit trade with foreign nations." Odebrecht Constr., Inc. v. Sec'y, Fla. Dep't of Transp., 715 F.3d 1268, 1275 (11th11^th Cir. 2013). See generally 50 U.S.C. §§ 4301–41.

28 U.S.C. § 2680(f).

See id. § 2680(h). See also infra "The Intentional Tort Exception."

28 U.S.C. § 2680(i).

Id. § 2680(j). See also infra "The Combatant Activities Exception."

28 U.S.C. § 2680(k). See also infra "The Foreign Country Exception."

28 U.S.C. § 2680(l). See also Thacker v. Tenn. Valley Auth., --- S. Ct. ---, 2019 WL 1886028, at *4 (Apr. 29, 139 S. Ct. 1435, 1441 (2019) ("Congress made a considered decision not to apply the FTCA to the [Tennessee Valley Authority].") (emphasis omitted).

28 U.S.C. § 2680(m). The Panama Canal Treaty of 1977 replaced the Panama Canal Company with the Panama Canal Commission. E.g., Black v. Office of Pers. Mgmt., 641 F. App'x 1007, 1008 (Fed. Cir. 2016).

28 U.S.C. § 2680(n).

See, e.g., DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1123 (9^th Cir.), cert. denied, 2019 WL 5301048 (Oct. 21, 2019).

See, e.g., Matthews v. United States, Civil No. 07-00030, 2011 WL 3471140, at *2 (D. Guam Aug. 5, 2011), aff'd, 586 F. App'x 366 (9^th Cir. 2014) (describing "the discretionary function exception" as "the most frequently litigated" statutory exception to the FTCA); James R. Levine, The Federal Tort Claims Act: A Proposal for Institutional Reform, 100 Colum. L. Rev. 1538, 1541 (2000) (similar).

See 28 U.S.C. § 2680(a) (stating that the FTCA's waiver of sovereign immunity "shall not apply to . . . [a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused").

E.g., Evans v. United States, 876 F.3d 375, 380 (1st1^st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018 Cir. 2017).

E.g., Tsolmon v. United States, 841 F.3d 378, 380 (5th Cir. 2016).

See, e.g., Hon. Robert C. Longstreth, Does the Two-Prong Test for Determining Applicability of the Discretionary Function Exception Provide Guidance to Lower Courts Sufficient to Avoid Judicial Partisanship?, 8 U. St. Thomas L.J. 398, 403 (2011) (describing the discretionary function exception as "heavily litigated"); Nelson, supra note 41, at 262 ("The DFE[discretionary function exception] is the most criticized and litigated exception to the FTCA.").

Niles, supra note 16, at 1300. See also Sisk, supra note 17, at 301 ("The most important [exception] (in terms of frequency of assertion by the government, successfully more often than not) is the discretionary function exception."); Seamon, supra note 33, at 700–01 (describing the discretionary function exception as "broad," and as "the most important exception" to the FTCA's waiver of sovereign immunity).

Seamon, supra note 33, at 694–95.

See Niles, supra note 16, at 1307 ("Two basic reasons have been offered to justify the different judicial treatment of claims challenging discretionary acts, and claims focused on merely ministerial functions.").

Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536–37 (1988) (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)) (internal quotation marks omitted).

Niles, supra note 16, at 1308. See also Seamon, supra note 33, at 703 (explaining that the discretionary function exception reflects "(1) separation-of-powers concerns and, relatedly, (2) the incompetence of courts, compared to executive-branch officials, to decide matters of public policy").

Varig Airlines, 467 U.S. at 814 (quoting United States v. Muniz, 374 U.S. 150, 163 (1963)).

See Niles, supra note 16, at 1309 (noting the possibility "that the threat of liability will induce government officials to make decisions based not on the relevant and applicable policy objectives that should be governing the execution of their authority, but based rather on" avoiding "possible exposure to substantial civil liability").

Id. at 1310.

Varig Airlines, 467 U.S. at 808.

See infra "Whether the Challenged Conduct Is Discretionary"; "Whether Policy Considerations Influence the Exercise of the Employee's Discretion."

E.g., Gordo-Gonzalez v. United States, 873 F.3d 32, 36 (1st1^st Cir. 2017).

Id. See also, e.g., Garling v. EPA, 849 F.3d 1289, 1295 (10th10^th Cir. 2017) ("If both elements are met, the governmental conduct is protected . . . and sovereign immunity bars a claim that involves such conduct.").

Seamon, supra note 33, at 706–07.

E.g., Evans v. United States, 876 F.3d 375, 380 (1st1^st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018 Cir. 2017) (quoting Fothergill v. United States, 566 F.3d 248, 252 (1st1^st Cir. 2009)).

E.g., Pornomo v. United States, 814 F.3d 681, 687 (4th4^th Cir. 2016) (quoting Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536 (1988)).

"State law will not suffice" to render the discretionary function exception inapplicable; "only federal statutes, regulations, or policies will suffice to . . . divest the federal government of its sovereign immunity." Evans, 876 F.3d at 381 (emphasis added).

Id. (quoting Berkovitz, 486 U.S. at 536). See also, e.g., Compart's Boar Store, Inc. v. United States, 829 F.3d 600, 605 (8th8^th Cir. 2016) ("Government employees act with discretion unless they are following a regulation or policy that is 'mandatory and . . . clearly and specifically define[s] what the employees are supposed to do.'" (quoting C.R.S. ex rel. D.B.S. v. United States, 11 F.3d 791, 799 (8th8^th Cir. 1993))).

Berkovitz, 486 U.S. at 536.

Tsolmon v. United States, 841 F.3d 378, 384 (5th5^th Cir. 2016). See also, e.g., Sanders v. United States, 937 F.3d 316, 330 (4^th Cir. 2019) (holding that discretionary function exception did not apply where agency employee allegedly "failed to comply with the mandatory directives in" the agency's standard operating procedures); Cir. 2016). See also, e.g., Collins v. United States, 564 F.3d 833, 840 (7th7^th Cir. 2009) ("If a statute or regulation or other directive intended to be binding forbids the specific act contended to have been negligent, the employee who committed the act was not exercising authorized discretion.").

Compart's Boar Store, 829 F.3d at 605 (quoting Herden v. United States, 726 F.3d 1042, 1047 (8th8^th Cir. 2013)).

Gonzalez v. United States, 814 F.3d 1022, 1029 (9th9^th Cir. 2016) (citing Conrad v. United States, 447 F.3d 760, 765–66 (9th9^th Cir. 2006); Ochran v. United States, 117 F.3d 495, 500-01 (11th11^th Cir. 1997); Kelly v. United States, 924 F.2d 355, 358, 360–61 (1st1^st Cir. 1991)).

Id. at 1030 (quoting Sabow v. United States, 93 F.3d 1445, 1453 (9th9^th Cir. 1996)).

Compart's Boar Store, 829 F.3d at 605 (quoting Hart v. United States, 630 F.3d 1085, 1086 (8th8^th Cir. 2011)).

811 F.3d 140 (4th4^th Cir. 2015).

See id. at 141–42.

See id. at 145 (analyzing 28 C.F.R. § 524.72).

Id. See also Rinaldi v. United States, 904 F.3d 257, 273 (3d Cir. 2018) ("[H]ousing and cellmate assignments unquestionably involve an 'element of judgment or choice.'" (quoting United States v. Gaubert, 499 U.S. 315, 322 (1991))); Cohen v. United States, 151 F.3d 1338, 1343 (11th11^th Cir. 1998) ("Congress intended to give the BOP discretion in making its classification decisions and determinations about placement of prisoners."); Calderon v. United States, 123 F.3d 947, 950 (7th7^th Cir. 1997) (holding that BOP's "decision not to separate" two inmates "is properly classified as a discretionary act"). But see Parrott v. United States, 536 F.3d 629, 638 (7th7^th Cir. 2008) (concluding that once "a valid separation order" separating two inmates "is in effect, there is no discretion left" for the discretionary function exception to protect).

See 486 U.S. 531, 542–43 (1988).

Id. at 542.

Id. at 533.

Id. at 532, 542–43.

See, e.g., Loumiet v. United States, 828 F.3d 935, 939 (D.C. Cir. 2016) ("We conclude, in line with the majority of our sister circuits to have considered the question, that the discretionary-function exception does not categorically bar FTCA tort claims where the challenged exercise of discretion allegedly exceeded the government's constitutional authority to act.") (emphasis added).

Id. at 944. See also, e.g., Limone v. United States, 579 F.3d 79, 101 (1st1^st Cir. 2009) ("[T]he discretionary function exception does not . . . shield conduct that transgresses the Constitution."); Raz v. United States, 343 F.3d 945 (8th, 948 (8^th Cir. 2003) (concluding that government's actions "f[e]ll outside the FTCA's discretionary-function exception because [the plaintiff] alleged they were conducted in violation of [the Constitution]"); Medina v. United States, 259 F.3d 220, 225 (4th4^th Cir. 2001) ("[F]ederal officials do not possess discretion to violate constitutional rights . . . ." (quoting U.S. Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988))); Nurse v. United States, 226 F.3d 996, 1002 n.2 (9th9^th Cir. 2000) ("The Constitution can limit the discretion of federal officials such that the FTCA's discretionary function exception will not apply.").

That is not to say, however, that these courts permit FTCA claims against the United States predicated solely on violations of federal constitutional law. The Supreme Court has squarely held that "the United States . . . has not rendered itself liable under [the FTCA] for constitutional tort claims." FDIC v. Meyer, 510 U.S. 471, 478 (1994). Rather, the above-cited cases hold that the discretionary function exception will not bar a state law tort claim against the United States when a government employee also violates the U.S. Constitution in the course of committing that tort. See Loumiet, 828 F.3d at 945–46 ("A plaintiff who identifies constitutional defects in the conduct underlying her FTCA tort claim . . . may affect the availability of the discretionary-function defense, but she does not thereby convert an FTCA claim into a constitutional damages claim against the government; state law is necessarily still the source of the substantive standard of FTCA liability."); Limone, 579 F.3d at 102 n.13 ("[W]e do not view the FBI's constitutional transgressions as corresponding to the plaintiffs' causes of action—after all, the plaintiffs' claims are not Bivens claims [against individual federal officers alleging violations of the Constitution]—but rather, as negating the discretionary function defense."). That said, some judges have doubted whether there is a coherent distinction between (1) a federal constitutional tort claim and (2) a claim that a federal employee violated the U.S. Constitution in the course of committing a state law tort. See Castro v. United States, 560 F.3d 381, 394 (5th5^th Cir.) (Smith, J., dissenting) ("It is difficult to conceive of a violation of a constitutional right that does not also give rise to a state [law] cause of action . . . . Under the majority's framework, by a plaintiff's artful pleading, the United States can be liable whenever the Constitution is violated even though, under Meyer, the sovereign is not subject to liability for constitutional torts."), rev'd en banc, 608 F.3d 266 (5th5^th Cir. 2010).

Loumiet, 828 F.3d at 944 (quoting Owen v. City of Indep., Mo., 445 U.S. 622, 649 (1980)). See also, e.g., Medina, 259 F.3d at 225 ("[F]ederal officials do not possess discretion to violate constitutional rights . . . ." (quoting U.S. Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988))); U.S. Fid. & Guar. Co., 837 F.2d at 120 ("[C]onduct cannot be discretionary if it violates the Constitution.").

See Kiiskila v. United States, 466 F.2d 626, 627–28 (7th7^th Cir. 1972). See also Linder v. United States, 937 F.3d 1087, 1090 (7^th Cir. 2019) ("[T]he theme that 'no one has discretion to violate the Constitution' has nothing to do with the [FTCA], which does not apply to constitutional violations."). 197Linder v. McPherson, Case No. 14-cv-2714, 2015 WL 739633, at *13 (N.D. Ill. Jan. 29, 2015) ("In spite of th[e] recent trend of courts holding that it is outside of the discretion of federal employees to engage in behavior that violates the Constitution, the only Seventh Circuit case the Court has located squarely held just the opposite.").

See Kiiskila, 466 F.2d at 628 ("28 U.S.C. § 2680(a) precludes action for abuse of discretionary authority whether through negligence or wrongfulness."). See also 28 U.S.C. § 2680(a) (stating that the discretionary function exception applies "whether or not the discretion involved be abused").

See Doe v. United States, 831 F.3d 309, 319–20 (5th5^th Cir. 2016) ("Whether a properly pled constitutional violation allows a plaintiff to circumvent the discretionary function exception is an open question in this circuit. Because we conclude the plaintiffs did not sufficiently plead [a constitutional violation], we need not settle the issue of whether a constitutional violation removes the applicability of the discretionary function exception."); Doe KS v. United States, Case No. 17-2306, 2017 WL 6039536, at *4 (D. Kan. Dec. 5, 2017) ("Assuming—without holding—that the majority of appellate courts are correct about FTCA liability for exceeding constitutional authority . . . .") (emphasis added).

E.g., Evans v. United States, 876 F.3d 375, 380 (1st1^st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018 Cir. 2017) (quoting Fothergill v. United States, 566 F.3d 248, 252 (1st1^st Cir. 2009)).

E.g., Gonzalez v. United States, 814 F.3d 1022, 1033 (9th9^th Cir. 2016).

Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 537 (1988).

E.g., Compart's Boar Store, Inc. v. United States, 829 F.3d 600, 605 (8th8^th Cir. 2016) (quoting Herden v. United States, 726 F.3d 1042, 1050 (8th8^th Cir. 2013)).

See Morales v. United States, 895 F.3d 708, 716 (9th9^th Cir. 2018) ("We reject the suggestion that the government cannot invoke the discretionary function exception whenever a decision involves considerations of public safety . . . . In case after case, we have considered the government's balancing of public safety with a multitude of other factors.").

See, e.g., Croyle ex rel. Croyle v. United States, 908 F.3d 377, 382 (8^th Cir. 2018) ("Balancing safety, reputational interests, and confidentiality is the kind of determination 'the discretionary function exception was designed to shield.'") (quoting Berkovitz, 486 U.S. at 536).

See, e.g., Gonzalez, 814 F.3d at 1032 ("In determining if the conduct involves policy judgment, we do not look to an agent's subjective weighing of policy considerations."); Cohen v. United States, 151 F.3d 1338, 1341 (11th11^th Cir. 1998) ("[W]e do not focus on the subjective intent of the government employee or inquire whether the employee actually weighed social, economic, and political policy considerations before acting." (quoting Ochran v. United States, 117 F.3d 495, 500 (11th11^th Cir. 1997))).

E.g., Seaside Farm, Inc. v. United States, 842 F.3d 853, 858 (4th4^th Cir. 2016). See also, e.g., Buckler v. United States, 919 F.3d 1038, 1045 (8^th Cir. 2019) ("[A]s long as a discretionary decision is susceptible to policy analysis, the [discretionary function] exception applies whether or not [the] defendant in fact engaged in conscious policy-balancing.") (internal citations and quotation marks omitted); Jude v. Comm'r of Soc. Sec., 908 F.3d 152, 159 (6^th Cir. 2018) ("Such 'social, economic, or political' policy analysis need not have actually occurred in the disputed instance, but rather the decision need only have been theoretically susceptible to policy analysis."). Cir. 2016).

Gonzalez, 814 F.3d at 1028 (quoting GATX/Airlog Co. v. United States, 286 F.3d 1168, 1174 (9th9^th Cir. 2002)). See also, e.g., Gibson v. United States, 809 F.3d 807, 813 (5th5^th Cir. 2016) ("Our inquiry is 'not whether the decision maker in fact engaged in a policy analysis when reaching his decision but instead whether his decision was susceptible to policy analysis.'" (quoting In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 713 F.3d 807, 810 (5th5^th Cir. 2013))).

Pornomo v. United States, 814 F.3d 681, 687–88 (4th4^th Cir. 2016) (quoting Holbrook v. United States, 673 F.3d 341, 350 (4th4^th Cir. 2012)). See also 28 U.S.C. § 2680(a) (providing that the applicability of the discretionary function exception does not hinge on "whether or not the discretion involved be abused").

Evans v. United States, 876 F.3d 375, 381 (1st1^st Cir. 2017), cert. denied, 139 S. Ct. 81 (2018 Cir. 2017). See also, e.g., Wood v. United States, 845 F.3d 123, 128 (4th4^th Cir. 2017) (explaining that the discretionary function exception "shield[s] decisions of a government entity made within the scope of any regulatory policy expressed in statute, regulation, or policy guidance, even when made negligently") (emphasis added).

Chadd v. United States, 794 F.3d 1104, 1111 (9th9^th Cir. 2015). See also, e.g., Wood, 845 F.3d at 128 ("The analysis also does not depend on whether the conduct was that of a high-level agency official making policy or a low-level employee implementing policy.").

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984).

Evans, 876 F.3d at 380 (quoting United States v. Gaubert, 499 U.S. 315, 334 (1991)).

Gaubert, 499 U.S. at 324.

Id.

Id. at 324–25.

E.g., Hajdusek v. United States, 895 F.3d 146, 150 (1st1^st Cir. 2018) (quoting Shansky v. United States, 164 F.3d 688, 693 (1st1^st Cir. 1999)).

Id. at 151.

See, e.g., Croyle ex rel. Croyle v. United States, 908 F.3d 377, 381-82 (8^th Cir. 2018) ("'[T]he decision to warn is, at its core, a policy decision.' Likewise, supervising employees typically involves policy considerations.") (internal citations omitted).

See supra "Whether the Challenged Conduct Is Discretionary."

Rich v. United States, 811 F.3d 140, 145 (4th4^th Cir. 2015) (quoting Cohen v. United States, 151 F.3d 1338, 1344 (11th11^th Cir. 1998)).

Id. at 146 (quoting Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791, 796 (8th8^th Cir. 1998)).

Id. See also Rinaldi v. United States, 904 F.3d 257, 274 (3d Cir. 2018) ("[T]he District Court correctly concluded that housing and cellmate assignments are 'of the kind that the discretionary function exception was designed to shield.'" (quoting Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000))); Cohen, 151 F.3d at 1345 (concluding that federal law "does not render the discretionary function exception inapplicable to cases . . . in which a prisoner attacks another prisoner"); Calderon v. United States, 123 F.3d 947, 951 (7th7^th Cir. 1997) ("[B]alancing the need to provide inmate security with the rights of the inmates to circulate and socialize within the prison involves considerations based upon public policy.").

Coulthurst v. United States, 214 F.3d 106, 111 (2d Cir. 2000) (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)).

Id. at 110–11 (citing United States v. Gaubert, 499 U.S. 315, 323 (1991)).

Palay v. United States, 349 F.3d 418, 432 (7th7^th Cir. 2003).

See Whisnant v. United States, 400 F.3d 1177, 1179, 1183 (9th9^th Cir. 2005).

See, e.g., Levin v. United States, 568 U.S. 503, 507 (2013) ("We have referred to [28 U.S.C.] § 2680(h) as the 'intentional tort exception.'" (quoting United States v. Shearer, 473 U.S. 52, 54 (1985))).

Kenneth J. Vandevelde, A History of Prima Facie Tort: The Origins of a General Theory of Intentional Tort, 19 Hofstra L. Rev. 447, 447 (1990). See also Nancy J. Moore, Intent and Consent in the Tort of Battery: Confusion and Controversy, 61 Am. U. L. Rev. 1585, 1587 (2012) (noting the "distinction between the intentional torts, such as battery, assault, and false imprisonment, and the non-intentional torts, such as the negligent infliction of physical or emotional harm and strict liability for defective products and abnormally dangerous activities").

See, e.g., Restatement (Second) of Torts § 13.

See infra "The Exception to the Intentional Tort Exception: The Law Enforcement Proviso."

But see Levin, 568 U.S. at 518 (holding that another federal statute, 10 U.S.C. § 1089(e), "abrogates the FTCA's intentional tort exception" with respect to torts committed by specified classes of government employees).

28 U.S.C. § 2680(h).

Levin, 568 U.S. at 507 n.1. See also Fuller, supra note 17, at 379–80 (observing "that the label 'intentional tort exception' is something of a misnomer" because § 2680(h) not only (1) "excludes some torts that courts have held need not always be intentional;" but also (2) "fails to include all intentional torts in the list of excluded causes of action"); Sisk, supra note 17, at 304 ("This exception . . . includes most intentional torts (but perhaps not all, as trespass, conversion, invasion of privacy, and intentional infliction of emotional distress are not listed).").

Levin, 568 U.S. at 507 n.1.

Fuller, supra note 17, at 383–84.

Id. at 384.

Id.

See supra "Introduction."

Hallett v. U.S. Dep't of Navy, 850 F. Supp. 874, 878 (D. Nev. 1994).

Id. at 877–78.

See Fuller, supra note 17, at 385; Pellegrino v. TSA, 896 F.3d 207, 214 (3d Cir. 2018) (same).

See, e.g., Millbrook v. United States, 569 U.S. 50, 52 (2013) (using the phrase).

28 U.S.C. § 2680(h).

Gregory C. Sisk, Twilight for the Strict Construction of Waivers of Federal Sovereign Immunity, 92 N.C. L. Rev. 1245, 1305 (2014). See also Nguyen v. United States, 556 F.3d 1244, 1255–56 (11th11^th Cir. 2009) (discussing the law enforcement proviso's purpose and legislative history); Caban v. United States, 671 F.2d 1230, 1234 (2d Cir. 1982) (noting that the enactment of the law enforcement proviso "was triggered by the abusive tactics of federal narcotics agents who engaged in illegal, unconstitutional 'no-knock' raids"); Rosky, supra note 44, at 939–43 (outlining the proviso's legislative history).

Pellegrino, 896 F.3d at 214 (quoting 28 U.S.C. § 2680(h)).

28 U.S.C. § 2680(h).

Pellegrino, 896 F.3d at 218See id.

Id.

28 U.S.C. § 2680(h).

Id.

Pellegrino, 896 F.3d at 225 (emphasis omittedSee Campos v. United States, 888 F.3d 724, 737 (5^th Cir. 2018), cert. denied, 139 S. Ct. 1317 (2019).

See Metz v. United States, 788 F.2d 1528, 1532 (11^th Cir. 1986) ("Because the FLETC and USDT officials are not themselves law enforcement officers and because the law enforcement proviso cannot be expanded to apply to governmental actors who are not law enforcement officers, the provisions of § 2680(h) bar liability for false arrest and false imprisonment based on the actions of the FLETC and USDT officials.").

See Pellegrino v. U.S. Transp. Sec. Admin., 937 F.3d 164, 167-81 (3d Cir. 2019) (en banc). For a CRS product analyzing the Pellegrino case in greater detail, see CRS Legal Sidebar LSB10363, Is a TSA Screener a "Law Enforcement Officer"? Court Allows Lawsuit Against United States to Proceed, by Kevin M. Lewis.

See Corbett v. Transp. Sec. Admin., 568 F. App'x 690, 701 (11^th Cir. 2014).

See, e.g., id. at 229–30 ("[TSA screeners,] like meat inspectors, OSHA workers, and other personnel who are permitted to perform only administrative searches . . . do not qualify as 'investigative or law enforcement officers' under the law enforcement proviso of the FTCA. Because the proviso does not apply, Pellegrino's intentional tort claims are barred by § 2680(h)'s intentional tort exception, and the District Court correctly dismissed those claims based on the United States' sovereign immunity.").

Millbrook v. United States, 569 U.S. 50, 55 (2013) (quoting 28 U.S.C. § 1346(b)(1)). See also Rosky, supra note 44, at 910 n.49 (noting that the law enforcement proviso "mak[es] federal law enforcement officers the only federal employees whose intentional torts may give rise to government liability"). See also supra "Scope of Employment."

Bunch v. United States, 880 F.3d 938, 941 (7th7^th Cir. 2018) (citing Millbrook, 569 U.S. at 55).

Millbrook, 569 U.S. at 57.

See id. at 51.

The Supreme Court expressed no opinion on whether the correctional officers in Millbrook "qualif[ied] as 'investigative or law enforcement officers' within the meaning of the FTCA." See id. at 55 n.3.

See id. at 51–57.

See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004) (using the phrase "foreign country exception").

28 U.S.C. § 2680(k).

Sosa, 542 U.S. at 712 (emphasis added).

E.g., Nurse v. United States, 226 F.3d 996, 1003 (9th9^th Cir. 2000).

853 F.3d 1056, 1057-–63 (9th9^th Cir. 2017).

Id. at 1058.

Id.

Id.

Id. at 1059.

Id. at 1063.

Id. at 1058 (quoting Restatement (First) Conflict of Laws § 377, n.1 (1934)).

28 U.S.C. § 2680(j).

See, e.g., Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 479 (3d Cir. 2013) ("The [FTCA] does not explicitly state the purpose of the [combatant activities] exception, nor does legislative history exist to shed light on it."); Saleh v. Titan Corp., 580 F.3d 1, 7 (D.C. Cir. 2009) ("The legislative history of the combatant activities exception is 'singularly barren.'" (quoting Johnson v. United States, 170 F.2d 767, 769 (9th9^th Cir. 1948))).

Saleh, 580 F.3d at 7. See also, e.g., Harris, 724 F.3d at 480 ("The purpose underlying § 2680(j) therefore is to foreclose state regulation of the military's battlefield conduct and decisions.").

See 974 F. Supp. 895 (E.D. Tex. 1996).

Id. at 896.

Id.

Id. at 898. In the alternative, the court also determined that the Feres doctrine barred the sergeant's claims. See id. at 897. See also infra "The Feres Doctrine."

See Feres v. United States, 340 U.S. 135, 146 (1950). See also, e.g., United States v. Johnson, 481 U.S. 681, 692 (1987) (reaffirming Feres).

See Feres, 340 U.S. at 136-37.

Id.

Id. at 137.

Id.

Id. at 146.

Ortiz v. United States ex rel. Evans Army Cmty. Hosp., 786 F.3d 817, 821 (10th10^th Cir. 2015) (quoting Pringle v. United States, 208 F.3d 1220, 1223–24 (10th10^th Cir. 2000) Cir. 2000)), cert. dismissed, 137 S. Ct. 1431 (2017). See also, e.g., Purcell v. United States, 656 F.3d 463, 465 (7th7^th Cir. 2011) (opining that the Feres doctrine "has been interpreted increasingly broadly over time"); Dreier v. United States, 106 F.3d 844, 848 (9th9^th Cir. 1996) ("[C]ourts applying the Feres doctrine have given a broad reach to Feres' 'incident to service' test.").

Ortiz, 786 F.3d at 821 (quoting Pringle, 208 F.3d at 1223–24). See also, e.g., Dreier, 106 F.3d at 848 (noting that Feres may bar recovery even "for injuries that at first blush may not have appeared to be closely related to [the plaintiff's] military service or status").

See, e.g., Daniel v. United States, 889 F.3d 978, 981 (9th9^th Cir. 2018), cert. denied, 139 S. Ct. 1713 (2019) Cir. 2018) ("[O]ur cases have consistently applied the Feres doctrine to bar medical malpractice claims predicated on treatment provided at military hospitals to active duty service members . . . ."), petition for cert. docketed, No. 18-460 (U.S. Oct. 11, 2018); Cutshall v. United States, 75 F.3d 426, 427 (8th8^th Cir. 1996) (concluding that Feres barred corporal's claim that Navy doctors failed to promptly detect corporal's cancer).

Significantly, some courts have interpreted the Feres doctrine to also bar certain medical malpractice claims by non-servicemember third parties. See, e.g., Ortiz, 786 F.3d at 824 (holding that if an injury to a civilian "has its origin in an incident-to-service injury to a service member, . . . then Feres applies as a bar to the third-party claim, just as it would to a claim by the service member for his or her injuries"). For example, some courts have held that, under certain circumstances, the Feres doctrine renders the United States "immune from damages for injuries its agents caused to an active-duty servicewoman's baby during childbirth," even though that baby was not (and, given her age, could not be) a member of the military. E.g., id. at 818. See generally Tara Willke, Commentary, Three Wrongs Do Not Make a Right: Federal Sovereign Immunity, The Feres Doctrine, and the Denial of Claims Brought by Military Mothers and Their Children for Injuries Sustained Pre-Birth, 2016 Wis. L. Rev. 263, 263 ("Through the application of the judicially created Feres doctrine, female service members who suffer injuries during pregnancy or the birthing process as a result of military medical malpractice are barred from seeking recovery under the [FTCA] and, depending on the jurisdiction in which the negligent medical treatment occurs, their children may also be barred from seeking recovery for the injuries they sustain as the result of the negligent prenatal medical care."). But see Brown v. United States, 462 F.3d 609, 614 (6th6^th Cir. 2006) (concluding that Feres is "inapplicable to suits for negligent prenatal care affecting only the health of the fetus" and not the health of the servicemember mother).

See, e.g., United States v. Johnson, 481 U.S. 681, 693 (1987) (Scalia, J., dissenting) ("Read as it is written, [the FTCA's] language renders the United States liable to all persons, including servicemen, injured by the negligence of Government employees. Other provisions of the Act set forth a number of exceptions, but none generally precludes FTCA suits brought by servicemen."); Patrick J. Austin, Incident to Service: Analysis of the Feres Doctrine and its Overly Broad Application to Service Members Injured by Negligent Acts Beyond the Battlefield, 14 Appalachian J.L. 1, 3 (2014) ("[T]he FTCA does not contain 'incident to service' language."); Maj. Thomas R. Folk, The Administrative Procedure Act and the Military Departments, 108 Mil. L. Rev. 135, 154 (1985) ("The Supreme Court has repeatedly recognized [the Feres] exception to the FTCA . . . despite the FTCA's failure to mention such an exception with other explicit exceptions applicable to activities by the armed forces.").

Although, as discussed above, see supra "The Combatant Activities Exception," the FTCA does contain a provision preserving the government's immunity "any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war," see 28 U.S.C. § 2680(j), that exception is not coextensive with the Feres doctrine as articulated by the Supreme Court. See, e.g., Matthew v. United States, 452 F. Supp. 2d 433, 444 (S.D.N.Y. 2006) ("The statutory exemption in 28 U.S.C. § 2680(j) applies to a much narrower set of circumstances than the Feres doctrine . . . .").

Ortiz, 786 F.3d at 821. See also, e.g., Wetherill v. Geren, 616 F.3d 789, 793 (8th8^th Cir. 2010) ("Underlying Feres was a recognition of 'the peculiar and special relationship of the soldier to his superiors, [and] the effects on the maintenance of [FTCA] suits on discipline.'") (quoting Chappell v. Wallace, 462 U.S. 296, 299 (1983)).

United States v. Shearer, 473 U.S. 52, 58 (1985) (alteration in original) (quoting Chappell, 462 U.S. at 302).

United States v. Johnson, 481 U.S. 681, 690 (1987) (quoting Shearer, 473 U.S. at 59).

See infra "Proposals to Abrogate or Modify Feres."

See, e.g., Johnson, 481 U.S. at 700 (Scalia, J., dissenting) (arguing that "Feres was wrongly decided and heartily deserves the 'widespread, almost universal criticism' it has received" (quoting In re Agent Orange Prod. Liab. Litig., 580 F. Supp. 1242, 1246 (E.D.N.Y. 1984))); Ortiz, 786 F.3d at 818 (stating that "[i]n the many decades since its inception, criticism of the so-called Feres doctrine has become endemic"); Ritchie v. United States, 733 F.3d 871, 878 (9th9^th Cir. 2013) ("We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long [as the Feres doctrine].").

See Johnson, 481 U.S. at 686, 688 ("This Court has never deviated from . . . the Feres bar . . . We decline to modify the doctrine at this late date."). See also Shearer, 473 U.S. at 57–59 (concluding that Feres barred plaintiff's FTCA claim).

See Stencel Aero Eng'g Corp. v. United States, 431 U.S. 666, 673 (1977) ("We conclude . . . that the third-party indemnity action in this case is unavailable for essentially the same reasons that the direct action by Donham is barred by Feres.").

See, e.g., Johnson, 481 U.S. at 700 (Scalia, J., dissenting) (opining that "Feres was wrongly decided and heartily deserves the 'widespread, almost universal criticism' it has received." (quoting Agent Orange, 580 F. Supp. at 1246)).

See, e.g., id. at 692 ("I can perceive no reason to accept petitioner's invitation to extend [Feres] as the Court does today."); Stencel Aero, 431 U.S. at 674 (Marshall, J., dissenting) ("I do not agree that [Feres's] extension to cover this case is justified.").

See Petition for Writ of Certiorari, Daniel v. United States, 587 U.S. ___139 S. Ct. 1713 (2019) (No. 18-460), at i ("Should Feres be overruled for medical malpractice claims brought under the Federal Tort Claims Act where the medical treatment did not involve any military exigencies, decisions, or considerations, and where the service member was not engaged in military duty or a military mission at the time of the injury or death?"); Daniel v. United States, 587 U.S. ___, No. 18-460, slip op. at 1139 S. Ct. 1713, 1713 (2019) ("The petition for a writ of certiorari is denied.").

See Johnson, 481 U.S. at 686 (majority opinion) ("Nor has Congress changed [Feres] in the close to 40 years since it was articulated, even though, as the Court noted in Feres, Congress 'possesses a ready remedy' to alter a misinterpretation of its intent." (quoting Feres v. United States, 340 U.S. 135, 138 (1950))).

See supra "Exceptions to the FTCA's Waiver of Sovereign Immunity."

E.g., Malmberg v. United States, 816 F.3d 185, 193 (2d Cir. 2016) ("Damages in FTCA actions are determined by the law of the state in which the tort occurred."); Lockhart v. United States, 834 F.3d 952, 955 (8th8^th Cir. 2016) (similar); Reilly v. United States, 863 F.2d 149, 161 (1st1^st Cir. 1988) (similar). Thus, if the state in which the tort occurred has enacted statutes that cap the amount of damages a plaintiff may recover in a state law tort case, those statutory caps may likewise limit the damages a plaintiff may recover from the United States in an FTCA case. E.g., Clemons v. United States, No. 4:10-CV-209-CWR-FKB, 2013 WL 3943494, at *2 (S.D. Miss. June 13, 2013) ("[S]tate law damages caps apply in FTCA cases."); Bowling v. United States, 740 F. Supp. 2d 1240, 1267 (D. Kan. 2010) ("With respect to compensatory damages, under the FTCA, damages are determined by the law of the state where the tortious act was committed, and presumes the application of any relevant damage caps that might be applied in the case of a private individual under like circumstances.").

See, e.g., 28 U.S.C. § 2674.

But see id. ("If, however, if any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death . . . .").

Id. ("The United States . . . shall not be liable for interest prior to judgment or for punitive damages."); Carlson v. Green, 446 U.S. 14, 22 (1980) ("Punitive damages in an FTCA suit are statutorily prohibited.").

E.g., Anderson v. United States, 127 F.3d 1190, 1191–92 (9th9^th Cir. 1997) ("Congress has not waived the government's sovereign immunity for attorneys' fees and expenses under the FTCA."); Bergman v. United States, 844 F.2d 353, 355 (6th6^th Cir. 1988) ("It is clear that the FTCA does not waive the United States' immunity from attorneys' fees."); Joe v. United States, 772 F.2d 1535, 1537 (11th11^th Cir. 1985) ("The FTCA does not contain the express waiver of sovereign immunity necessary to permit a court to award attorneys' fees against the United States directly under that act."). But see Tri-State Hosp. Supply Corp. v. United States, 341 F.3d 571, 573, 577 (D.C. Cir. 2003) (holding that plaintiff could potentially recover attorneys' fees in FTCA action because plaintiff was "not seeking the attorney's fees it incurred in bringing its FTCA action," but was instead seeking "to recover the . . . attorney's fees it had incurred defending itself against" an allegedly malicious prosecution).

28 U.S.C. § 2675(b) ("Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.").

See infra "Procedural Requirements."

Zurba v. United States, 318 F.3d 736, 743 (7th7^th Cir. 2003).

Allgeier v. United States, 909 F.2d 869, 875 (6th6^th Cir. 1990) (internal citation omitted).

28 U.S.C. § 2675(b). See also, e.g., Zurba, 318 F.3d at 738–44 (analyzing when an FTCA plaintiff may recover damages in excess than the amount requested in his initial administrative claim); Lebron v. United States, 279 F.3d 321, 325–31 (5th5^th Cir. 2002) (same); Michels v. United States, 31 F.3d 686, 687–89 (8th8^th Cir. 1994) (same); Allgeier, 909 F.2d at 877–79 (same). See generally Daniel Shane Read, The Courts' Difficult Balancing Act To Be Fair to Both Plaintiff and Government Under the FTCA's Administrative Claims Process, 57 Baylor L. Rev. 785 (2005) (discussing when courts have allowed plaintiffs to recover damages that exceed their administrative claims and opining when courts should allow plaintiffs to do so as a matter of policy).

E.g., Ugo Colella, The Case for Borrowing a Limitations Period for Deemed-Denial Suits Brought Pursuant to the Federal Tort Claims Act, 35 San Diego L. Rev. 391, 406 (1998) ("The FTCA's statute of limitations, § 2401(b), imposes two limitations periods on claimants.").

See 28 U.S.C. § 2675(a) ("The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim . . . ."); id. (stating that Section 2675's exhaustion requirements do "not apply to such claims as may be asserted under the Federal Rules of Civil Procedure by third party complaint, cross-claim, or counterclaim").

Id. See also Read, supra note 302307, at 794–95 (outlining the process for filing an administrative claim under the FTCA).

Lopez v. United States, 823 F.3d 970, 976 (10th10^th Cir. 2016) (quoting Smoke Shop, LLC v. United States, 761 F.3d 779, 786 (7th7^th Cir. 2014)). See also Michels, 31 F.3d at 688 ("In 1966, to encourage more administrative settlements, Congress amended the FTCA to require administrative claims in all cases.").

Ugo Colella, The Case for Borrowing a Limitations Period for Deemed-Denial Suits Brought Pursuant to the Federal Tort Claims Act, 35 San Diego L. Rev. 391, 401 (1998)Colella, supra note 303, at 401. See also Read, supra note 302307, at 791 (explaining that the "two goals" of the administrative claim requirement are "to ease court congestion and provide fairness to plaintiffs by aiding the Government in its attempts to settle meritorious cases").

Colella, supra note 303312, at 401–02. See also Read, supra note 302307, at 792 ("By stating that a goal was to aid the efficient settlement of meritorious claims, it is clear that Congress intended to help attorneys on both sides resolve disputes by creating a process at the administrative level that would lead to less work for all involved. Congress related that the then current situation unnecessarily consumed the time of United States Attorneys and subjected deserving plaintiffs to needless delays and attorneys' fees in processing their claims through the federal courts."); Axelrad, supra note 2, at 1343 ("Administrative claims allow parties to reach the benefits of settlement without the expense of filing, much less litigating a suit.").

28 U.S.C. § 2401(b) ("A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues."); Morales-Melecio v. United States, 890 F.3d 361, 368 (1st1^st Cir. 2018) ("In general, a tort claim under the FTCA accrues when a plaintiff is injured.").

28 C.F.R. § 14.2. The United States has promulgated a standard form which the claimant may (but need not) use for this purpose. See id. § 14.2(a) ("[A] claim shall be deemed to have been presented when a Federal agency receives . . . an executed Standard Form 95 or other written notification of an incident."). Many (but not all) courts require the plaintiff to prove that the agency actually received his claim. See Cooke v. United States, 918 F.3d 77, 81-82 (2d Cir.), cert. denied, 139 S. Ct. 2748 (2019) (discussing the competing majority and minority positions on this issue). Courts adopting this interpretation of the FTCA's claim presentment requirement reason that it is insufficient for the plaintiff to merely prove that he placed the claim in the mail. See, e.g., id. at 81-82 ("[T]he mere mailing of a notice of claim does not satisfy the FTCA's presentment requirement."). 316.").

E.g., Lopez, 823 F.3d at 976 (quoting Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th10^th Cir. 2005)). See also 28 C.F.R. § 14.4 (specifying various types of information that a claimant "may be required to submit"); Chronis v. United States, 932 F.3d 544, 547 (7^th Cir. 2019) (explaining that the FTCA's "presentment requirement has four elements: (1) notification of the incident; (2) demand for a sum certain; (3) title or capacity of the person signing; and (4) evidence of the person's authority to represent the claimant"). 317").

Figley, Ethical Intersections, supra note 5, at 359. See also Axelrad, supra note 2, at 1336 ("When an agency receives an administrative claim it is empowered to consider whether to grant the claim in full, resolve the claim by negotiating a compromise settlement, deny the claim, or take no action on the claim."); 28 U.S.C. § 2672 (governing the administrative settlement of FTCA claims).

See, e.g., Tunac v. United States, 897 F.3d 1197, 1207 (9th9^th Cir. 2018), cert. denied, 139 S. Ct. 817 (2019) Cir. 2018) (explaining that a court may toll the two-year time limit, but only if the plaintiff shows, "among other things, that 'fraudulent conduct by the defendant result[ed] in concealment of the operative facts'" (alteration in original) (quoting Fed. Election Comm'n v. Williams, 104 F.3d 237, 240–41 (9th9^th Cir. 1996))). Additionally, sometimes a plaintiff cannot fairly be expected to file an administrative claim within two years of his injury, especially when "the fact or cause of an injury is unknown to (and perhaps unknowable by) a plaintiff for some time after the injury occurs." E.g., Dominguez v. United States, 799 F.3d 151, 153 (1st1^st Cir. 2015) (quoting Rakes v. United States, 442 F.3d 7, 19 (1st1^st Cir. 2006)). In such instances, "the statute of limitations clock does not begin to run until the putative plaintiff knows of the factual basis of both his injury and its cause." Morales-Melecio, 890 F.3d at 368. See also, e.g., Tunac, 897 F.3d at 1206–07 (applying this rule in the medical malpractice context). This rule "protects plaintiffs who are either experiencing the latent effects of a previously unknown injury or struggling to uncover the underlying cause of their injuries from having their claims time-barred before they could reasonably be expected to bring suit." A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 140 (2d Cir. 2011).

Zappone v. United States, 870 F.3d 551, 555 (6th6^th Cir. 2017) (quoting 28 U.S.C. § 2401(b)). See also, e.g., Douglas v. United States, 814 F.3d 1268, 1279 (11th11^th Cir. 2016) (affirming dismissal of FTCA claims that plaintiff had "failed to fully exhaust").

See McNeil v. United States, 508 U.S. 106, 107–13 (1993) (emphasis added). See also, e.g., Douglas, 814 F.3d at 1279 (affirming dismissal of FTCA claims that plaintiff had "failed to fully exhaust"). But see D.L. ex rel. Junio v. Vassilev, 858 F.3d 1242, 1246 (9th9^th Cir. 2017) (holding "that the FTCA's exhaustion requirement does not prevent a plaintiff from amending a previously filed federal complaint over which there is jurisdiction to add an FTCA claim once he has exhausted his administrative remedies") (emphasis in original).

See 28 U.S.C. § 2672 ("The acceptance by the claimant of any . . . award, compromise, or settlement shall be final and conclusive on the claimant, and shall constitute a complete release of any claim against the United States . . . . [A]ny such award, compromise, settlement, or determination shall be final and conclusive on all officers of the Government.").

Figley, Ethical Intersections, supra note 5, at 359. Cf. Axelrad, supra note 2, at 1334 ("[D]uring fiscal year 1998, the Postal Service reported that it received approximately 15,000 tort claims and paid approximately 11,000 of those claims through the administrative process.").

28 U.S.C. § 2401(b).

Axelrad, supra note 2, at 1344.

See 28 U.S.C. § 1346(b)(1) (providing that specified federal district courts "shall have exclusive jurisdiction" over FTCA cases).

Id. § 2401(b) ("A tort claim against the United States shall be forever barred . . . unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented."). See also, e.g., Raplee v. United States, 842 F.3d 328, 333 (4th4^th Cir. 2016) ("[28 U.S.C.] § 2401(b) requires a plaintiff to bring a federal civil action within six months after a federal agency mails its notice of final denial of his claim."), cert. denied, 137 S. Ct. 2274 (June 19, 2017. But see 28 C.F.R. § 14.9(b) (providing that, under certain conditions, a claimant may seek reconsideration of the agency's final denial, which tolls the six-month statute of limitations).

See United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015) (holding that the FTCA's statutes of limitation may be extended under certain conditions); Ortiz-Rivera v. United States, 891 F.3d 20, 25 (1st1^st Cir. 2018) ("The FTCA's time bar may be . . . tolled when a party has pursued its rights diligently but some extraordinary circumstance prevents it from meeting a deadline.") (internal citation, quotation marks, and brackets omitted). See also 28 U.S.C. § 2679(d)(5) (providing that "[w]henever an action or proceeding in which the United States is substituted as the party defendant . . . is dismissed for failure first to present a claim" to the appropriate federal agency, "such a claim shall be deemed to be timely presented" if (1) "the claim would have been timely had it been filed on the date the underlying civil action was commenced;" and (2) "the claim is presented to the appropriate Federal agency within 60 days after dismissal of the civil action").

28 U.S.C. § 2401(b). See also, e.g., Sconiers v. United States, 896 F.3d 595, 596 (3d Cir. 2018) (affirming dismissal of FTCA case where plaintiff "failed to" file suit "within six months of [the] agency's written denial").

See 28 U.S.C. § 2675(a). See also Colella, supra note 303312, at 395 ("[A]n estimated one-third of administrative claims are deemed denied by the filing of a lawsuit."); Axelrad, supra note 2, at 1336 ("When an agency receives an administrative claim it is empowered to . . . take no action on the claim.").

Id28 U.S.C. § 2675(a).

See generally Colella, supra note 303312, at 406–56 (discussing the FTCA's deemed denial provision and its effects on the FTCA's statutes of limitation).

See, e.g., United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015); United States v. Gaubert, 499 U.S. 315, 324 (1991); Feres v. United States, 340 U.S. 135, 146 (1950).

See Petition for Writ of Certiorari at i, Evans v. United States, No. 17-1516 (U.S. May 4, 2018) (asking the Court, among other things, to "modif[y]" its "prior precedent applying the discretionary-function exception to the [FTCA] to government employees acting on the operational level"); Order Denying Writ of Certiorari, Evans, No. 17-1516 (Oct. 1, 2018) (rejecting this invitation to modify the Court's precedent). See also United States v. Johnson, 481 U.S. 681, 692 (1987) (reaffirming the Feres doctrine's continued validity).

See, e.g., Johnson, 481 U.S. at 686 ("This Court has never deviated from this characterization of the Feres bar. Nor has Congress changed this standard in the close to 40 years since it was articulated, even though, as the Court noted in Feres, Congress 'possesses a ready remedy' to alter a misinterpretation of its intent." (quoting Feres, 340 U.S. at 138 (1950))). Cf. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (noting that "stare decisis in respect to statutory interpretation has 'special force'" because "Congress remains free to alter" the Court's interpretation, especially where "Congress has long acquiesced in" that interpretation) (quoting Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989))).

See, e.g., Maj. Deirdre G. Brou, Alternatives to the Judicially Promulgated Feres Doctrine, 192 Mil. L. Rev. 1, 79 (2007) (predicting that "Congress, not the judiciary, will dismantle the Feres doctrine, if it is to be eliminated").

See, e.g., Rosky, supra note 44, at 962 (arguing that, in order to promote uniform and fair results in FTCA cases, Congress should add "a new, separate provision" to the FTCA "establishing that claims arising from the intentional torts of law enforcement officers are governed by a federal scope of employment rule, rather than by the law of any particular state"); Jonathan Turley, Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance, 71 Geo. Wash. L. Rev. 1, 4, 82 (2003) (arguing that "the Feres doctrine was fundamentally flawed from its inception on both a constitutional and statutory basis," and suggesting that Congress amend "the FTCA to reaffirm that only combat-related injuries are exempted from the Act").

For instance, the 116th116^th Congress recently enacted the John D. Dingell, Jr. Conservation, Management, and Recreation Act, which provides in relevant part that the FTCA "shall not apply to [specified] organization[s] or individual[s] carrying out a privately requested good Samaritan search-and-recovery mission" pursuant to the act. Pub. L. NoP.L. 116-9 § 9002(b)(2)(C) (2019) (codified at 43 U.S.C. § 1742a(b)(2)(C)).

For example, the 116th116^th Congress recently enacted athe Consolidated Appropriations Act for 2019, which provides in relevant part that "an eligible individual who is employed in any project funded under title V of the Older Americans Act of 1965 . . . and administered by the Forest Service shall be considered to be a Federal employee for purposes of [the FTCA]." See P.L. 116-6, 133 Stat. 13, 247 (2019).

Other bills pending in the 116th116^th Congress likewise propose to expand the scope of entities that qualify as federal employees for purposes of the FTCA. See, e.g., TALENT Act, H.R. 2944, 116^th Cong. § 2 (1^st Sess. 2019) (proposing to deem any "employee of a private-Sector organization who is assigned to a Department of Defense organization under" the proposed legislation "an employee of the Department of Defense for the purposes of . . . the [FTCA]"); No Federal Funding to Benefit Sanctuary Cities Act, H.R. 1885, 116th116^th Cong. § 2(b) (1st1^st Sess. 2019) (proposing to classify certain state and municipal officers, employees, and agents as "employee[s] of the Federal Government" for the purposes of the FTCA under specified conditions). As of the date of this report, at least one such bill has passed the House of Representatives. See Damon Paul Nelson and Matthew Young Pollard Intelligence Authorization Act for Fiscal Years 2018, 2019, and 2020, H.R. 3494, 116^th Cong. § 306 (1^st Sess. 2019) (proposing to deem any "employee of a private-sector organization who is detailed to an element of the intelligence community" to be "an employee of th[at] element for the purposes of" the FTCA). See also Damon Paul Nelson and Matthew Young Pollard Intelligence Authorization Act for Fiscal Years 2018, 2019, and 2020, S. 1589, 116^th Cong. § 304 (1^st Sess. 2019) (companion bill pending in Senate). 339).

See supra "Employees and Independent Contractors."

See, e.g., ACCESS Act, H.R. 1326, 116th116^th Cong. § 604(a) (1st1^st Sess. 2019) (providing that, for the purposes of the FTCA, "any action by an agent or employee of the United States to manage or allow the use of Federal land for purposes of target practice or marksmanship training by a member of the public shall be considered to be the exercise or performance of a discretionary function").

Cf. Pfander & Aggarwal, supra note 33, at 424 (noting that Congress enacted the FTCA "to provide compensation to victims of government wrongdoing").

See Rosky, supra note 44, at 909 n.48 ("This broad and basic federal interest in determining the sweep of the waiver encompasses a more specific interest—the government's fiscal interest in the outcome of claims . . . . Payment of judgments . . . comes from the United States' purse.").

See Niles, supra note 16, at 1300.

See id. at 1295 (arguing that the "government is a more appropriate candidate to bear the costs incurred by its negligent acts than the private citizen who sustains an injury through no 'fault' of her own").

See id. at 1300 (noting potential "concerns . . . about the integrity and solvency of the public fisc").

See, e.g., United States v. Johnson, 481 U.S. 681, 690 (1987) (opining that the Feres doctrine limits judicial interference "in sensitive military affairs at the expense of military discipline and effectiveness" (quoting United States v. Shearer, 473 U.S. 52, 59 (1985))).

See, e.g., Feres Doctrine—A Policy in Need of Reform?: Hearing Before the H. Subcomm. on Military Personnel, 116th116^th Cong. (2019) [hereinafter 2019 Feres Hearing]; The Feres Doctrine: An Examination of This Military Exception to the Federal Tort Claims Act: Hearing Before the S. Comm. on the Judiciary, 107th107^th Cong. 1–133 (2002) [hereinafter 2002 Feres Hearing]; The Feres Doctrine and Military Medical Malpractice: Hearing Before the Subcomm. on Admin. Prac. & Proc. of the S. Comm. on the Judiciary, 99th99^th Cong. 9 (1986) [hereinafter 1986 Feres Hearing] (statement of Sen. Edward M. Kennedy) ("Over the period of the past years we have had seven hearings on the Feres doctrine.").

See supra "The Feres Doctrine."

Feres v. United States, 340 U.S. 135, 146 (1950). See also, e.g., Johnson, 481 U.S. at 692 (reaffirming Feres).

See, e.g., Richard E. Custin et al., Is it Time to Revisit the Feres Doctrine? The Disparate Treatment of Active Duty Military Personnel Under the Federal Tort Claims Act, 22 J.L. Bus. & Eth. 1, 2 (2016) (criticizing what the authors characterize as "the patent inequity of the Feres doctrine"); Willke, supra note 279284, at 282 (arguing that Feres "has led to unfairness between civilians and members of the military"); Brou, supra note 330335, at 4 (maintaining that "[t]he Feres doctrine . . . is too broad in scope and goes beyond protecting military decision making and discipline").

See, e.g., Willke, supra note 279284, at 263–64 ("Through the application of the judicially created Feres doctrine, female service members who suffer injuries during pregnancy or the birthing process as a result of military medical malpractice are barred from seeking recovery under the [FTCA] and, depending on the jurisdiction in which the negligent medical treatment occurs, their children may also be barred from seeking recovery for the injuries they sustain as the result of the negligent prenatal medical care.").

See, e.g., Hershkoff, supra note 40, at 219 (maintaining that "[t]he combined effect of the exception for assault and battery with the Feres Doctrine creates a toxic brew for claimants . . . who allege claims of sexual abuse or rape"); Ann-Marie Woods, A "More Searching Judicial Inquiry": The Justiciability of Intra-Military Sexual Assault Claims, 55 B.C. L. Rev. 1329, 1331 (2014) (arguing that "[f]or countless victims of military sexual assault, the Feres doctrine has closed the doors of civilian courthouses").

See, e.g., Turley, supra note 331336, at 57 (describing the military's medical operations as "collateral to the core functions of the military"); id. at 30-31 (2003) (arguing that "intentional torts like assault and battery" are "by definition unrelated to any legitimate military function").

See, e.g., 2002 Feres Hearing 1 (statement of Sen. Arlen Specter) (opining that Feres "has produced anomalous results which reflect neither the will of the Congress nor common sense").

See, e.g., Daniel v. United States, 587 U.S. ___, No. 18-460, slip op. at 1139 S. Ct. 1713, 1713 (2019) (Thomas, J., dissenting from the denial of certiorari) (opining that "Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received" (quoting Lanus v. United States, 570 U.S. 932, 933 (2013) (Thomas, J., dissenting from denial of certiorari))); Ortiz v. United States ex rel. Evans Army Cmty. Hosp., 786 F.3d 817, 818 (10th10^th Cir. 2015) ("In the many decades since its inception, criticism of the so-called Feres doctrine has become endemic."), cert. dismissed, 137 S. Ct. 1431 (2017); Ritchie v. United States, 733 F.3d 871, 878 (9th9^th Cir. 2013) ("We can think of no other judicially-created doctrine which has been criticized so stridently, by so many jurists, for so long [as the Feres doctrine].").

See, e.g., Brou, supra note 330335, at 72 (arguing that the Feres doctrine "is too broad in scope"); Turley, supra note 331336, at 4, 82 (arguing that "the Feres doctrine was fundamentally flawed from its inception on both a constitutional and statutory basis" and suggesting that Congress amend "the FTCA to reaffirm that only combat-related injuries are exempted from the Act").

See, e.g., 2002 Feres Hearing 3 (statement of Paul Harris, Deputy Assoc. Att'y Gen., Dep't of Justice) (maintaining that "the Feres doctrine continues to be a sound and necessary limit on the FTCA's waiver of sovereign immunity, essential to the accomplishment of the military's mission and to the safety of the Nation"); Paul Figley, In Defense of Feres: An Unfairly Maligned Opinion, 60 Am. U. L. Rev. 393, 395 (2010) [hereinafter Figley, Unfairly Maligned] (arguing that "the Supreme Court correctly decided the Feres case in 1950").

1986 Feres Hearing 20 (statement of Robert L. Willmore, Deputy Assistant Att'y Gen.). See also 2002 Feres Hearing 4 (statement of Rear Admiral Christopher E. Weaver) (contending that "allowing service members to bring suits" against the United States under the FTCA would "interfere with mission accomplishment and adversely affect [the military's] operational readiness").

1986 Feres Hearing 21 (statement of Robert L. Willmore, Deputy Assistant Att'y Gen.).

See Figley, Unfairly Maligned, supra note 352357, at 453 (arguing that servicemembers have access to a "full panoply of service members' and veterans' benefits"); 2002 Feres Hearing 3 (statement of Paul Harris, Deputy Assoc. Att'y Gen., Dep't of Justice) ("[T]he military service does not leave those permanently injured in the line of duty uncompensated. Congress has attended to such injuries or death through the creation of an efficient and comprehensive compensation system."); Joan M. Bernott, Fairness and Fares [sic]: A Critique of the Presumption of Injustice, 44 Wash. & Lee L. Rev. 51, 69–70 (1987) ("Servicemen already enjoy greater access to federal relief for most injury [sic] than do all other federal employees; equity does not compel exacerbating this disparity by revoking or limiting Feres."). For an analysis of the statutory benefits to which injured servicemembers may be entitled, see CRS In Focus IF11102, Military Medical Malpractice and the Feres Doctrine, by Bryce H. P. Mendez and Kevin M. Lewis.

See, e.g., 2002 Feres Hearing 1–133; 1986 Feres Hearing 9 (statement of Sen. Edward M. Kennedy) ("Over the period of the past years we have had seven hearings on the Feres doctrine.").

See generally 2019 Feres Hearing.

See, e.g., Nicole Melvani, The Fourteenth Exception: How the Feres Doctrine Improperly Bars Medical Malpractice Claims of Military Service Members, 46 Cal. W. L. Rev. 395, 433 (2010) ("Congress should . . . clarify that the exceptions specifically enumerated in the [FTCA] are the only limitations on active duty service members' ability to bring suit for injuries sustained from the negligence of government employees."). Notably, those exceptions would include Section 2680(j), which, as discussed above, see supra "The Combatant Activities Exception," preserves the United States' sovereign immunity against "any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." 28 U.S.C. § 2680(j).

See, e.g., 1986 Feres Hearing 11 (statement of Sen. Edward M. Kennedy) ("The bill would only allow suits for medical malpractice in peacetime, for non-combat related medical damages . . . ."); Melvani, supra note 358363, at 434 ("If Congress is unprepared to completely abolish the Feres doctrine, it should at the very least rescind the doctrine for medical malpractice claims.").

See 42 U.S.C. §§ 300aa-1-300aa6.

See generally Melissa Feldmeier, At War With the Feres Doctrine: The Carmelo Rodriguez Military Medical Accountability Act of 2009, 60 Cath. U. L. Rev. 145, 148–49, 162–66 (2010) (surveying bills that Congress introduced between 1985 and 2009).

H.R. 2422, 116th2500, 116^th Cong. § 2(a) (1st Sess. 2019).

See National Defense Authorization Act for Fiscal Year 2020, S. 1790, 116^th Cong. (1^st Sess. 2019) (version engrossed in Senate).

See supra "Background."

See Fuller, supra note 17, at 378–79 ("[P]rivate bills today are far from dead . . . . While by no means easy or commonplace, it remains possible to obtain private legislative relief today—a possibility that should not be forgotten in discussions of the FTCA and its scope.").

See Hershkoff, supra note 40, at 243 ("I suggest reinvigorating a claimant's right to petition for a private bill whenever a claim is not cognizable under the FTCA—a result that is not foreclosed by the current statute but the practice is virtually dormant.").

Longstreth, supra note 157161, at 400 n.11 (listing examples).