Order Code 95-717 A
CRS Report for Congress
Received through the CRS Web
Federal Tort Claims Act:
Current Legislative and
Judicial Issues
Updated December 3, 2001
Henry Cohen
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Federal Tort Claims Act: Current Legislative and
Judicial Issues
Summary
The Federal Tort Claims Act is the statute by which the United States authorizes
tort suits to be brought against itself. With exceptions, it makes the United States
liable for injuries caused by the negligent or wrongful act or omission of any federal
employee acting within the scope of his employment, in accordance with the law of
the state where the act or omission occurred. Three major exceptions, under which
the United States may not be held liable, even in circumstances where a private person
could be held liable under state law, are the Feres doctrine, which prohibits suits by
military personnel for injuries sustained incident to service; the discretionary function
exception, which immunizes the United States for acts or omissions of its employees
that involve policy decisions; and the intentional tort exception, which precludes suits
against the United States for assault and battery, among some other intentional torts,
unless they are committed by federal law enforcement or investigative officials.
This report discusses, among other things, the application of the Feres doctrine
to suits for injuries caused by medical malpractice in the military, the prohibition of
suits by victims of atomic testing, Supreme Court cases interpreting the discretionary
function exception, the extent to which federal employees may be held liable for torts
they commit in the scope of their employment, and the government contractor defense
to products liability design defect suits.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Feres Doctrine and Medical Malpractice . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Discretionary Function Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Suits by Victims of Atomic Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
The Warner Amendment and the Radiation Exposure
Compensation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
The Intentional Tort Exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Suits Against Federal Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Constitutional Torts: Federal Employees’ Liability and Immunity . . . 20
The Practical Side of Bivens Actions . . . . . . . . . . . . . . . . . . . . . . . . 23
Qualified Immunity to Bivens Actions . . . . . . . . . . . . . . . . . . . . . . . 23
The Government Contractor Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

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Federal Tort Claims Act: Current Legislative
and Judicial Issues
Introduction
The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, is the
statute by which the United States authorizes tort suits to be brought against itself.
As a result of the common law doctrine of sovereign immunity, “the United States
cannot be sued without its consent.”1 “Congress alone has the power to waive or
qualify that immunity.”2 In 1946, by enacting the FTCA, Congress waived sovereign
immunity for some tort suits. With exceptions, it made the United States liable:
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 while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b).
Thus, the FTCA makes the United States liable for the torts of its employees3 to
the extent that private employers are liable under state law for the torts of their
employees. However, the FTCA contains exceptions under which the United States
may not be held liable even though a private employer could be held liable under state
law. Three of these exceptions are examined in separate sections of this report: the
Feres doctrine, which prohibits suits by military personnel for injuries sustained
incident to service;4 the discretionary function exception; and the intentional tort
exception. Among the other exceptions, the United States may not be held liable in
accordance with state law imposing strict liability;5 it may not be held liable for
1Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940).
2United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 (1926).
3The United States may be held liable under the FTCA for torts of employees of the executive,
legislative, and judicial branches, but not for torts of government contractors. 28 U.S.C.
§ 2671.
4Federal civilian employees covered by the Federal Employees’ Compensation Act, 5 U.S.C.
§§ 8101 et seq., are also prohibited from suing under the FTCA for work-related injuries. 5
U.S.C. § 8116(c).
5The requirement in 28 U.S.C. § 1346(b) that liability be based on a “negligent or wrongful
(continued...)

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interest prior to judgment or for punitive damages (28 U.S.C. § 2674);6 for the act or
omission of an employee exercising due care in the execution of an invalid statute or
regulation (28 U.S.C. § 2680);7 for claims arising out of loss, miscarriage, or
negligent transmission of postal matters; for claims arising in respect of the assessment
or collection of any tax8 or customs duty; for claims caused by the fiscal operations
of the Treasury or by the regulation of the monetary system; for claims arising out of
combatant activities; or for claims arising in a foreign country.9
Prior to filing suit under the FTCA, a claimant must present his claim to the
federal agency out of whose activities the claim arises. 28 U.S.C. § 2675.10 This
must be done within two years after the claim accrues. 28 U.S.C. § 2401.11 If, within
six months after receiving a claim, the agency mails a denial of the claim to the
claimant, then the claimant has six months to file suit in federal district court. 28
5(...continued)
act or omission” has been construed to preclude strict liability. See, Dalehite v. United States,
346 U.S. 15, 44-45 (1953). However, the National Swine Flu Immunization Program of
1976, Public Law 94-380, made the United States liable for injuries arising out of the
administration of the swine flu vaccine to the extent that manufacturers would be liable under
state law “including negligence, strict liability in tort, and breach of warranty.”
6In Molzof v. United States, 502 U.S. 301 (1992), the Supreme Court held that damages for
future medical expenses and loss of enjoyment of life for a veteran in a permanent vegetative
state as a result of government hospital employees’ negligence were not “punitive” and
therefore could be awarded. The government had argued that these damages were punitive
rather than compensatory in nature because the award for future medical expenses duplicated
free medical services already being provided by the veterans’ hospital, and the award for loss
of enjoyment of life cannot redress a comatose patient’s uncognizable loss. The Court held,
however, “that § 2674 bars the recovery only of what are legally considered ‘punitive
damages’ under traditional common-law principles.” Id. at 312 (emphasis in original).
7Subsequent exceptions cited in the sentence also appear in 28 U.S.C. § 2680.
8Section 6241 of the Technical and Miscellaneous Revenue Act of 1988, Public Law 100-647,
authorizes taxpayers to sue the United States if “any officer or employee of the Internal
Revenue Service recklessly or intentionally disregards” any provision of the Internal Revenue
Code, and to recover up to $100,000 in “actual, direct economic damages” sustained as a
result of such action. 26 U.S.C. § 7433.
9In Smith v. United States, 507 U.S. 197, 198 (1993), the Supreme Court held that Antarctica
is a foreign country for this purpose even though it is “a sovereignless region without civil tort
law of its own.”
10In McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court disallowed a suit
because the claimant had not first filed an administrative claim, even though the claimant was
a prisoner without legal counsel and had filed an administrative claim (later denied) only four
months after filing suit, before any substantial progress in the litigation had occurred.
11A claim accrues under the FTCA when “the plaintiff has discovered both his injury and its
cause.” United States v. Kubrick, 444 U.S. 111, 120 (1979). This rule benefits, among
others, plaintiffs with latent diseases that are not discovered until years after exposure to a
hazardous substance. See also, Sinclair and Szypszak, Limitations of Action Under the
FTCA: A Synthesis and Proposal, 28 Harvard Journal on Legislation 1 (1991); Annotation,
Statute of Limitations Under Federal Tort Claims Act (28 USCS § 2401(b)), 29 ALR Fed
482.

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U.S.C. §§ 2401, 2675. No period of limitations applies to a plaintiff if the agency fails
to act within six months after receiving his claim.12 Suits under the FTCA are tried
without a jury. 28 U.S.C. § 2402.13
An agency may not settle a claim for more than $25,000 without the prior
written approval of the Attorney General or his designee, unless the Attorney General
delegates to the head of the agency the authority to do so.14 “Such delegations may
not exceed the authority delegated by the Attorney General to United States attorneys
to settle claims for money damages against the United States.”15 United States
attorneys are authorized to settle claims in amounts up to $1 million.16 Settlements
of $2,500 or less shall be paid by the agency out of appropriations available to the
agency; settlements of more than $2,500 shall be paid from general revenues. 28
U.S.C. § 2672.
Attorneys who represent claimants under the FTCA may not charge claimants
more than 25 percent of a court award or a settlement made by the Attorney General
or his designee after suit is filed, or more than 20 percent of a settlement made by the
agency with whom a claim is filed. 28 U.S.C. § 2678.17 A court may not order the
United States to pay a claimant’s attorneys’ fees unless the court finds the United
States to have acted in bad faith. 28 U.S.C. § 2412(b).18
12Pascale v. United States, 998 F.2d 186 (3d Cir. 1993).
13See, Kirst, Jury Trial and the Federal Tort Claims Act: Time to Recognize the Seventh
Amendment Right, 58 Texas Law Review 549 (1980).
1428 U.S.C. § 2672, as amended by Public Law 101-552, § 8; 38 U.S.C. § 515. There
appears to be no general limit on settlements effected with the prior written approval of the
Attorney General or his designee. A limit applicable in a particular situation is noted in
footnote 41 of this report.
1528 U.S.C. § 2672, as amended by Public Law 101-552, § 8; see also, 38 U.S.C. § 515.
1628 C.F.R. § 0.168(d)(2); see, Lester Jayson, HANDLING FEDERAL TORT CLAIMS:
ADMINISTRATIVE AND JUDICIAL REMEDIES, § 15.05[1] (2001). The Attorney General has
delegated the authority to settle tort claims of up to $200,000 to the Secretary of Veterans
Affairs, the Postmaster General, and the Secretary of Defense, and of up to $100,000 to the
Secretary of Transportation. 28 C.F.R. Part 14, App.
17See, Annotation, Calculations of Attorneys’ Fees Under Federal Tort Claims Act — 28
USCS § 2678, 86 ALR Fed 866. A California statute that limited the amount of attorneys’
fees that may be charged a client in a medical malpractice action was held to be preempted
to the extent that it would apply in an action brought under the FTCA. Jackson v. United
States, 881 F.2d 707 (9th Cir. 1989).
18The pertinent part of this provision, which is part of the Equal Access to Justice Act, states:
“The United States shall be liable for such fees [i.e., reasonable attorneys’ fees] and expenses
to the same extent that any other party would be liable under the common law or under the
terms of any statute which specifically provides for such an award.” No statute provides for
fee awards under FTCA, and another part of the Equal Access to Justice Act, which
authorizes fee awards against the United States in some instances where other parties would
not be liable for fee awards, does not apply to “cases sounding in tort.” 28 U.S.C.
§ 2412(d)(1)(A). However, under the common law, parties other than the United States may
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The Feres Doctrine and Medical Malpractice
In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court unanimously
held that, although the FTCA contains no explicit exclusion for injuries sustained by
military personnel incident to service, such an exclusion results from construing the
Act “to fit, so far as will comport with its words, into the entire statutory scheme of
remedies against the Government to make a workable, consistent and equitable
whole.” 340 U.S. at 139. One reason the Court found that to prohibit recovery for
injuries sustained incident to service would fit the entire statutory scheme was that the
Act, at 28 U.S.C. § 2674, makes the United States liable only “to the same extent as
a private individual under like circumstances.” This limitation could be construed to
exclude service-connected injuries because, the Court found,
that plaintiffs can point to no liability of a “private individual”
even remotely analogous to that which they are asserting against
the United States. We know of no American law which ever has
permitted a soldier to recover for negligence, against either his
superior officers or the Government he is serving. Nor is there
any liability “under like circumstances,” for no private individual
has power to conscript or mobilize a private army with such
authorities over persons as the Government vests in echelons of
command.
340 U.S. at 141-142.
Another basis for the Court’s decision in Feres was that the Act makes “the law
of the place where the act or omission occurred” (28 U.S.C. § 1346(b)) govern
liability, yet, in the case of a soldier, who is not free to choose his habitat, “[t]hat the
geography of an injury should select the law to be applied to his tort claims makes no
sense.” Id. at 143. The Court also was influenced by the fact that Congress has
enacted laws that “provide systems of simple, certain, and uniform compensation for
injuries or death of those in armed services,” yet Congress made no provision as to
how recovery under the FTCA would affect entitlement to such compensation. “The
absence of any such adjustment is persuasive that there was no awareness that the Act
might be interpreted to permit recovery for injuries incident to military service.” Id.
at 144. The Court concluded:
18(...continued)
be held liable for attorneys’ fees when they act in bad faith. Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 240, 258-259 (1975).

In Sanchez v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989), the court found a lack of the
requisite bad faith and therefore did “not reach the issue whether an award of attorneys fees
would . . . be barred by the FTCA prohibition against punitive damages [28 U.S.C. § 2674].”
Subsequently, however, in Molzof v. United States, supra note 6, the Supreme Court, in a
different context, held “that § 2674 bars the recovery only of what are legally considered
‘punitive damages’ under traditional common-law principles.”

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that the Government is not liable under the Federal Tort Claims
Act for injuries to servicemen where the injuries arise out of or
are in the course of activity incident to service. Without
exception, the relationship of military personnel to the
Government has been governed exclusively by federal law. We
do not think that Congress, in drafting the Act, created a new
cause of action dependent on local law for service-connected
injuries or death due to negligence. We cannot impute to
Congress such a radical departure from established law in the
absence of express congressional command.
340 U.S. at 146.
In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-672
(1977), the Supreme Court identified three rationales as the foundation for the Feres
doctrine:
First, the relationship between the Government and members of
its Armed Forces is “‘distinctively federal in character,’”. . . ; it
would make little sense to have the Government’s liability to
members of the Armed Services depend on the fortuity of where
the soldier happened to be stationed at the time of the injury.
Second, the Veterans’ Benefits Act establishes as a substitute for
tort liability, a statutory “no fault” compensation scheme which
provides generous pensions to injured servicemen, without
regard to any negligence attributable to the Government.
A third factor was explicated in United States v. Brown, 348
U.S. 110, 112 (1954), namely, “[t]he peculiar and special
relationship of the soldier to his superiors, the effects of the
maintenance of such suits on discipline, and the extreme results
that might obtain if suits under the Tort Claims Act were allowed
for negligent orders given or negligent acts committed in the
course of military duty . . . .”
The Supreme Court reaffirmed the Feres doctrine in United States v. Shearer,
473 U.S. 52 (1985), and again addressed the reasons for its adoption. “Feres seems
best explained,” the Court wrote:
“by the ‘peculiar and special relationship of the soldier to his
superiors, the effects of the maintenance of such suits on
discipline, and the extreme results that might obtain if suits under
the Tort Claims Act were allowed for negligent orders given or
negligent acts committed in the course of military duty.’” The
Feres doctrine cannot be reduced to a few bright-line rules; each
case must be examined in light of the statute as it has been
construed in Feres and subsequent cases.
473 U.S. at 57 (citations omitted).

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The Court emphasized that significant factors in determining whether the Feres
doctrine bars a suit are “whether the suit requires the civilian court to second-guess
military decisions . . . and whether the suit might impair military discipline.” Id. at 57.
It noted that “other factors mentioned in Feres” are “no longer controlling.” Id. at 58
n.4. These other factors apparently were the distinctively federal nature of the
relationship between the government and military personnel, and the alternative
compensation system available to military personnel. Subsequently, however, in
United States v. Johnson, 481 U.S. 681 (1987), discussed below, the Court reaffirmed
these factors.
In Atkinson v. United States,19 a panel of the United States Court of Appeals for
the Ninth Circuit, relying primarily on Shearer, allowed a medical malpractice suit to
be brought under the FTCA by a servicewoman who suffered injuries “incident to
service” in an Army hospital. The government sought a rehearing, and, in the interim,
the Supreme Court decided United States v. Johnson, supra, which caused the Ninth
Circuit’s panel to grant the rehearing and issue a new opinion in Atkinson, reversing
itself. The Supreme Court subsequently declined to review the case. These three
decisions – the panel’s first decision in Atkinson, Johnson, and the panel’s second
decision in Atkinson – are now examined in turn.
The plaintiff in Atkinson alleged that negligence on the part of Army hospital
personnel had caused her to deliver a stillborn child and to suffer physical and
emotional injuries. The panel, in its first decision, wrote:
[T]he Feres doctrine bars suit only where a civilian court would
be called upon to second-guess military decisions or where the
plaintiff’s admitted activities are of the sort that would directly
implicate the need to safeguard military discipline. . . . In
Shearer, the Supreme Court also confirmed that courts should
take a case-by-case, rather than per se, approach to claims [by
the government] of immunity.
804 F.2d at 563. Taking such an approach, the court wrote:
At the time Atkinson sought treatment, she was “not subject in
any real way to the compulsion of military orders or performing
any sort of military mission.” . . . No command relationship
exists between Atkinson and her attending physician. No
military considerations govern the treatment in a non-field
hospital of a woman who seeks to have a healthy baby. No
military discipline applies to the care a conscientious physician
will provide in this situation. . . . There is simply no connection
between Atkinson’s medical treatment and the decisional or
disciplinary interest protected by the Feres doctrine.
Id. at 564-565.
19804 F.2d 561 (9th Cir. 1986), modified, 813 F.2d 1006 (9th Cir. 1987), withdrawn, 825 F.2d
202 (9th Cir. 1987), cert. denied, 485 U.S. 987 (1988).

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Note that this decision did not hold that all military malpractice suits are exempt
from the Feres doctrine. In taking a case-by-case approach, the court allowed for the
possibility of a situation in which there is a connection between a serviceman or
servicewoman’s “medical treatment and the decisional or disciplinary interest
protected by the Feres doctrine.”
In 1987, in United States v. Johnson, supra, the Supreme Court, in a 5-to-4
decision, held that the Feres doctrine bars suits on behalf of military personnel injured
incident to service even in cases of torts committed by employees of civilian agencies.
The plaintiff in Johnson was the widow of a serviceman killed incident to service in
a helicopter crash allegedly caused by the negligence of the Federal Aviation
Administration. Reexamining the reasons for the Feres doctrine, the Court concluded
that whether the tortfeasor was a civilian or a military employee was not significant.
The reasons for the Feres doctrine that it reexamined, and reaffirmed, were the three
cited in Stencel, set forth on page 5 of this report. Thus, it removed any doubts that
it had cast in Shearer upon the significance of those factors.
Justice Scalia, joined by three other justices in dissent, noted that the Feres
doctrine is not in the FTCA as enacted by Congress, and found the reasons offered
by the Court for adopting the doctrine to be unsatisfactory:
[N]either the three original Feres reasons nor the post hoc
rationalization of “military discipline” justifies our failure to
apply the FTCA as written. Feres was wrongly decided and
heartily deserves the “widespread, almost universal criticism” it
has received.
481 U.S. at 700.20
Citing Johnson, the Ninth Circuit’s panel subsequently reversed itself in
Atkinson:
Significant for our purposes [the panel wrote] is the Court’s
articulation, with apparent approval, of all three rationales
associated with Feres. . . . Simply put, Johnson appears to
breathe new life into the first two Feres rationales, which until
that time had been largely discredited and abandoned. . . .
Although we believe that the military discipline rationale does
not support application of the Feres doctrine in this case, the first
two rationales support its application. . . . We are . . . reluctant
to carve out an exception to Feres after five members of the
Court appear to have emphatically endorsed Feres and all three
of its rationales. That task, if it is to be undertaken at all, is
properly left to the Supreme Court or to Congress.
20The three original reasons Justice Scalia referred to were that “the parallel private liability
required by the FTCA was absent” and the first two reasons mentioned in Stencel; the
“military discipline” rationale was the third reason mentioned in Stencel.

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825 F.2d at 205-206.21
In Del Rio v. United States, 833 F.2d 282 (llth Cir. 1987), a servicewoman who
had given birth to twins brought a medical malpractice suit under the FTCA, alleging
that, as a result of negligent prenatal care at a military hospital, one of her twins
suffered bodily injury and the other died. The Eleventh Circuit held that the Feres
doctrine, as interpreted in Johnson, barred her claim. It agreed with the Ninth
Circuit’s second decision in Atkinson that the first two Feres factors operated to
preclude suit, but, unlike the Ninth Circuit, believed that even the third factor did so.
“Obviously,” the court wrote, “the suit ‘might impair essential military discipline’
. . . .”22
In Irvin v. United States, 845 F.2d 126 (6th Cir. 1988), cert. denied, 488 U.S.
975 (1988), another servicewoman alleged that negligent prenatal care by the military
had resulted in her infant’s death, and another court of appeals held that the Feres
doctrine barred suit under the FTCA.
In Bowers v. United States, 904 F.2d 450 (8th Cir. 1990), the court held that the
Feres doctrine precludes an individual from recovering for medical malpractice
allegedly committed at his pre-induction physical. Although the plaintiff was not a
service member at the time of the alleged negligence, and was not eligible for either
veterans’ benefits or treatment in a military hospital, the court found that two of the
three Feres rationales spelled out in Johnson were applicable: “the relationship
between Bowers and the armed forces is distinctively federal,” and a decision for
Bowers “would have a direct effect upon military judgments and decisions.” Id. at
452.
Thus, the Feres doctrine stands and contains no exception for medical
malpractice cases. Because the first two Stencel factors – the federal nature of the
relationship between the government and military personnel, and the alternative
compensation scheme – would seem to apply in every case, there may not even be
occasion for courts to use the case-by-case approach of Shearer. This could change,
however, as a result of action by either the Supreme Court or Congress.
As for the Supreme Court, it is not beyond the realm of possibility that it could
completely overrule Feres. In Johnson, as noted, the four dissenting justices said that
Feres had been wrongly decided, and even downplayed the significance of the fact
that Congress since 1950 has not overturned Feres. 481 U.S. at 702 (Scalia, J.,
dissenting). As for Congress, some Members in the past have shown interest in
amending the Feres doctrine to the extent of authorizing medical malpractice suits.23
21The three rationales referred to are those cited in Stencel and by the majority in Johnson.
22833 F.2d at 286 (citing Shearer, 473 U.S. at 56, and adding emphasis).
23See, e.g., Medical Malpractice Suits for Armed Services Personnel: Hearings on S. 2490
and H.R. 1054 Before the Subcomm. on Courts and Administrative Practice of the Senate
Comm. on the Judiciary, 100th Cong., 2d Sess. (1988).

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Although the Feres was an interpretation of the FTCA, it has been applied to bar
suits against the United States under other statutes, including the Privacy Act.
Cummings v. Department of Navy, 116 F. Supp.2d 76 (D.D.C. 2000).
The Discretionary Function Exception
The discretionary function exception is the most significant exception to
government liability that is explicitly provided for in the FTCA. This exception
immunizes the United States from claims “based upon the exercise or performance or
the failure to exercise or perform a discretionary function.” 28 U.S.C. § 2680(a). It
precludes liability even if a federal employee acted negligently in the performance or
nonperformance of his discretionary duty.24 In Dalehite v. United States, 346 U.S.
15 (1953), the Supreme Court said that the discretion protected by the exception:
is the discretion of the executive or administrator to act
according to one’s judgment of the best course . . . . It . . .
includes more than the initiation of programs and activities. It
also includes determinations made by executives or
administrators in establishing plans, specifications or schedules
of operations. Where there is room for policy judgment and
decision there is discretion. It necessarily follows that acts of
subordinates in carrying out the operations of government in
accordance with official directions cannot be actionable.
Id. at 34, 35-36 (footnotes omitted).
In United States v. Varig Airlines, 467 U.S. 797 (1984), victims of airplane
accidents alleged that the Federal Aviation Administration (FAA) had acted
negligently in certifying certain airplanes for operation. The FAA had established a
program of “spot-checking” manufacturers’ compliance with minimum safety
standards, and had certified the airplanes involved in the accidents without inspecting
them. The Supreme Court, applying the principles it had set forth in Dalehite, held:
Here, the FAA has determined that a program of “spot-
checking” manufacturers’ compliance with minimum safety
standards best accommodates the goal of air transportation
safety and the reality of finite agency resources. Judicial
intervention in such decisionmaking through private tort suits
would require the courts to “second-guess” the political, social,
and economic judgments of an agency exercising its regulatory
function. . . . It follows that the acts of FAA employees in
executing the “spot-check” program in accordance with agency
24Congress has provided that the discretionary function exception does not apply in any action
based upon the act or omission of a participant in the swine flu immunization program.
Public Law 94-380; see also, note 5, supra. Congress has also provided that the exception
does not apply to certain claims based upon gross negligence by employees of the Consumer
Product Safety Commission. 15 U.S.C. § 2053(h)(1)(B).

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directives are protected by the discretionary function exception
as well. . . . The FAA employees who conducted compliance
reviews of the aircraft involved in this case were specifically
empowered to make policy judgments.
Id. at 820.25
In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court held that
the United States could be held liable under the FTCA, because the plaintiffs had
proved that federal employees had failed to follow regulations that specifically
prescribed a course of action. The plaintiffs were an infant, who had contracted a
severe case of polio from a dose of Orimune, an oral polio vaccine, and his parents.
They claimed that the Division of Biologic Standards, then a part of the National
Institutes of Health, had violated a federal statute and accompanying regulations in
issuing a license to a vaccine manufacturer to produce Orimune, and that the Bureau
of Biologics of the Food and Drug Administration had violated federal regulations in
approving the release of the particular lot that contained the dose that injured the
infant. The regulatory scheme governing licensing in Berkovitz, unlike the one
challenged in Varig, did not permit spot-checking; it required the agency, “prior to
issuing a product license, to receive all data the manufacturer is required to submit,
examine the product, and make a determination that the product complies with safety
standards.” Id. at 542. The regulatory scheme governing release of vaccine lots
apparently would have given the agency the power to establish a spot-checking
program as was used in Varig. However, the plaintiffs alleged that the agency had
“adopted a policy of testing all vaccine lots for compliance with safety standards and
preventing the distribution to the public of any lots that fail to comply. [Plaintiffs]
further allege that notwithstanding this policy, which allegedly leaves no room for
implementing officials to exercise independent policy judgment, employees of the
Bureau knowingly approved a lot that did not comply with safety standards.” Id. at
547. The Court sent the case back for trial, holding that if these allegations were
proved, then the discretionary function exception would not bar the claim.26 The
25More generally, the Court noted:
As in Dalehite, it is unnecessary – and indeed impossible – to define with precision
every contour of the discretionary function exception. From the legislative and
judicial materials, however, it is possible to isolate several factors useful in
determining when the acts of a Government employee are protected from liability
by § 2680(a). First, it is the nature of the conduct, rather than the status of the
actor, that governs whether the discretionary function exception applies in a given
case. . . . Second, whatever else the discretionary function exception may include,
it plainly was intended to encompass the discretionary acts of the Government
acting in its role as a regulator of the conduct of private individuals.
467 U.S. at 813-814.
26More generally, the Court held that, in determining the applicability of the discretionary
function exception,
a court must first consider whether the action is a matter of choice for the acting
(continued...)

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Court thus rejected the view expressed by the court below “that the discretionary
function exception exempts the United States from claims based on . . . non-
discretionary operational level acts and omissions taken in furtherance of planning
level discretionary decisions.” 822 F.2d 1322, 1329 (3d Cir. 1987).
In United States v. Gaubert, 499 U.S. 315 (1991), the Court held that the
discretionary function exception barred suit against the United States for the activities
of federal bank regulators in connection with a failing savings and loan association,
the Independent American Savings Association (IASA). The regulators became
“involved in IASA’s day-to-day business. They recommended the hiring of a certain
consultant to advise IASA on operational and financial matters; they advised IASA
concerning whether, when, and how its subsidiaries should be placed into bankruptcy;
they mediated salary disputes; they reviewed the draft of a complaint to be used in
litigation; they urged IASA to convert from state to federal charter; and they actively
intervened when the Texas Savings and Loan Department attempted to install a
supervisory agent at IASA.” Id. at 319-320.
The plaintiff, who was IASA’s chairman of the board and largest shareholder,
alleged that these activities were performed negligently and cost him $100 million in
damages. The United States argued that, even if the regulators’ activities had been
performed negligently, the discretionary function exception precluded recovery. The
court of appeals found that only some of the regulators’ activities were protected by
the discretionary function exception: while “policy decisions” fall within the
exception, “operational actions” do not. Id. at 321. The Supreme Court disagreed:
A discretionary act is one that involves choice or judgment; there
is nothing in that description that refers exclusively to policy-
making or planning functions. Day-to-day management of
banking affairs, like the management of other businesses,
regularly require[s] judgment as to which of a range of
permissible courses is the wisest.
Id. at 325.
26(...continued)
employee. . . . [C]onduct cannot be discretionary unless it involves an element of
judgment or choice. . . . Thus, the discretionary function exception will not apply
when a federal statute, regulation, or policy specifically prescribes a course of
action for an employee to follow. In this event, the employee has no rightful option
but to adhere to the directive. . . . The [discretionary function] exception . . .
protects only governmental actions and decisions based on considerations of public
policy.
486 U.S. at 536-537.

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The discretionary function exception thus applies to decisions based on policy,
whether made at the policy or planning level, on the one hand, or at the operational
level, on the other.27
Suits by Victims of Atomic Testing
From 1946 to 1962, approximately 235 tests of atomic weapons were performed
by federal government contractors. Many military and civilian personnel who
participated in these tests claim to have suffered cancer and other long-term medical
injuries as a result. Current federal law generally precludes either military or civilian
personnel from recovering in tort against either the federal government or the
contractors in these cases.
Military personnel are barred from recovering against the United States because
of the Feres doctrine. “The doctrine of the Feres case does not apply to the spouse
or child of a serviceman insofar as their own injuries or death are concerned . . . .
Conversely, the Feres doctrine clearly bars a suit by a serviceman’s next of kin for
damages resulting from the death or of injuries to the serviceman if his death or
injuries are incident to service.”28 The distinction is between a spouse’s or child’s
injury that is caused directly by the military and a spouse’s or child’s injury that results
from the soldier’s service-connected injury: the former is recoverable but the latter is
not. Thus, courts of appeals have held that the Feres doctrine bars spouses of soldiers
from recovering for their own injuries that resulted from the soldiers’ being ordered
into nuclear blast areas.29
Similarly, courts of appeals have held that the Feres doctrine bars recovery by
children born with birth defects that resulted from genetic changes in their fathers that
occurred when they were exposed to radiation while on military duty.30 However,
“the Feres doctrine does not bar an action against the United States for a
service-related injury suffered by a veteran as a result of independent post-service
negligence,” such as failure of the government to warn or monitor a veteran who had
27The Court noted that some discretionary acts are not protected by the discretionary function
exception because they are not “based on the purposes that the regulatory regime seeks to
accomplish.” If an official engaged in an act protected by the discretionary function exception
drove an automobile in connection with that act and negligently caused an accident, the
exception would not apply. “Although driving requires the constant exercise of discretion, the
official’s decisions in exercising this discretion can hardly be said to be grounded in regulatory
policy.” Id. at 325 n.7.
28Jayson, supra, note 16, § 5A.09 (footnotes omitted). See, Annotation, Right of Member of
Family of Serviceman to Maintain Action Under Federal Tort Claims Act (28 USCS
§§ 1346(b), 2671-2680) Against United States Based Upon Injuries Sustained By
Serviceman While on Active Duty, 69 ALR Fed 949.
29E.g., Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983), cert. denied, 465 U.S. 1023
(1984).
30Id.

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been exposed to radiation.31 A district court has held that the Feres doctrine does not
bar suit by the daughter and grandson of a soldier who was the victim of such
negligence.32
Civilians have also been denied recovery against the United States for injuries
caused by atomic testing – denied it on the basis of the discretionary function
exception to the FTCA. (This exception applies to all plaintiffs, so even if the Feres
doctrine were overturned, military personnel would be barred from recovering to the
same extent as civilians in atomic testing cases.) The Supreme Court has not
considered the applicability of the discretionary function exception to atomic testing
cases, but it has declined to review two federal courts of appeals decisions that held
that the discretionary function exception bars recovery in such cases.
In In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d
982, 993 (9th Cir. 1987), cert. denied, 485 U.S. 905 (1988), the court of appeals
stated that “Dalehite is squarely on point.” In both In re Consolidated and Dalehite,
“a detailed and extensive Operation Plan was adopted on orders from the highest
levels of the Executive Department. An integral part of that Plan was an extensive
Safety Plan . . . .” Id. at 994. The plaintiffs in In re Consolidated argued that the
negligent failure of Atomic Energy Commission and military officials to follow safety
guidelines established in the plan, such as decontamination measures and the use of
protective clothing and gear, had resulted in the overexposure of many hundreds or
thousands of test participants. The Ninth Circuit held:
The Safety Plan incorporated into the Operation Plan
contemplated that judgments and decisions concerning exposure
to radiological hazards and the degree of protection to be
afforded would be made in light of the objectives and the needs
of the test program. Safety decisions, therefore, were part of the
policy decisions made in the conduct of the weapons tests, [ ]
and they fall squarely within the articulation in Dalehite that
[w]here there is room for policy judgment and
decision there is discretion.
Id. at 995, citing 346 U.S. at 36.
The plaintiffs also argued that the government had been negligent in failing to
warn the plaintiffs “of the dangers to which they had been exposed or to monitor test
participants for health problems resulting from radiation exposure.” 820 F.2d at 996.
The court held:
This is not a case of failing to warn river users of hidden
obstructions beneath the surface; or park users of the risk of
flash floods; or a treating physician of his patient’s dangerous
propensities. The kind of “warning” that these [atomic testing]
31Broudy v. United States, 722 F.2d 566, 570 (9th Cir. 1983).
32Seveny v. United States Government, Department of Navy, 550 F. Supp. 653 (D. R.I.
1982).

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cases involve . . . entailed a commitment of substantial resources,
including the assignment of a large number of employees and the
expenditure of large sums of money. . . . The program required
difficult judgments balancing the magnitude of the risk from
radiation exposure – of which there was only fragmentary
knowledge – against the risks and burdens of a public program.
Those risks included the potential consequences of creating
public anxiety and the health hazards inherent in the medical
responses to the warning.
Thus, any decision whether to issue warnings to thousands of
test participants . . . calls for the exercise of judgment and
discretion at the highest levels of government. . . .
The conclusion is inescapable that every aspect of a warning
program is a matter that falls within the discretionary function
exception as defined in Dalehite and Varig . . . .33
In Allen v. United States, 816 F.2d 1417 (l0th Cir. 1987), cert. denied, 484 U.S.
1004 (1988), the Tenth Circuit, two months earlier, had reached the same conclusion
as the Ninth Circuit reached in In re Consolidated. The plaintiffs in Allen “singled out
the alleged failure of the government . . . to fully monitor offsite fallout exposure and
to fully provide needed public information on radioactive fallout.” 816 F.2d at 1419.
They contended that these activities did not involve “the kind of policy judgments
protected by” the discretionary function exception. 816 F.2d at 1421. The court
disagreed:
In the case before us, as in Varig, the government actors had a
general statutory duty to promote safety; this duty was broad and
discretionary. In the case before us it was left to the AEC, as in
Varig it was left to the Secretary of Transportation and the FAA,
to decide exactly how to protect public safety. . . . In the instant
case, no evidence was presented of any act or omission of the
AEC or its employees that clearly contravened a specific
statutory or regulatory authority. There was no evidence, for
example that the Test Information Officer failed to give out, or
that the Radsafe Officer failed to take a specific radiation
measurement that had been decided upon. Plaintiffs’ entire case
rests on the fact that the government could have made better
plans. This is probably correct, but it is insufficient for FTCA
liability.
33Id. at 996-998 (quoting the district court’s opinion). The court’s reference to the levels of
government at which decisions were made should be read in the light of the following language
from the Supreme Court’s decision in Varig (already quoted in footnote 25 of this report),
which the court in In re Consolidated had itself quoted earlier in its opinion (820 F.2d at
995): “it is the nature of the conduct, rather than the status of the actor, that governs whether
the discretionary function exception applies in a given case.”

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Id. at 1421, 1424.
The Warner Amendment and the Radiation Exposure
Compensation Act. Military and civilian victims of atomic testing have also
sought to sue the government contractors involved in the testing. Under state tort
law, a company engaged in atomic testing would likely be subject to strict liability
(liability even in the absence of negligence) for injuries resulting from such testing, as
atomic testing is an “abnormally dangerous” activity.34 Federal law, however, bars
victims of atomic testing from suing federal government contractors. Section 1631
of Public Law 98-525, 42 U.S.C. § 2212 (known as the “Warner Amendment”),35
provides that an action against the United States under the FTCA shall be the
exclusive remedy for injuries “due to exposure to radiation based on acts or omissions
by a contractor in carrying out an atomic weapons testing program under a contract
with the United States.” Under this provision, a contractor’s employees shall be
considered federal employees for purposes of any lawsuit.36
34See, Prosser and Keeton, THE LAW OF TORTS (5th ed. 1984) § 79, p. 558.
35This provision was repealed and re-enacted (as the Atomic Testing Liability Act, 42 U.S.C.
§ 2210 note) by sections 3140 and 3141 of Public Law 101-510. This, according to the
accompanying conference report, was “in order to recodify this section together with the
revised Radiation Exposure Compensation Act. The conferees do not intend for this action
to have any effect whatsoever on pending or past cases involving this provision of law.” H.R.
Rep. No. 101-923, 101st Cong., 2d Sess. 763 (1990); reprinted in 1990 U.S.C.C.A.N. 3270.
36The reason for the Warner Amendment was that the government contractors –
provided scientific, engineering and technical support for nuclear tests carried out
by the government and for the government in the exercise of a governmental
function, i.e., providing for the national defense. These organizations did not order
the tests to be performed; they did not set the times or places for the tests; nor did
they direct military or civilian government personnel to participate in them. It
should appear, without question, that these contractors were acting as the de facto
instruments of the United States Government in carrying out a governmental
purpose.
In the litigious atmosphere that now pervades the United States, especially where
atomic energy matters are concerned, literally thousands of plaintiffs have filed
suits against the operators of the government laboratories that have participated
in the government’s nuclear weapons tests. . . . Plaintiffs are seeking tens of
billions of dollars in damages. Because the contractors are fully indemnified by
the government under the terms of their contracts, the taxpayer will ultimately bear
this burden.
S. Rep. No. 98-500, 98th Cong., 2d Sess. 376 (1984). Although the contractors were
indemnified,
Congress has nevertheless perceived these lawsuits to constitute a threat to the
continued participation of the private contractors in the nuclear weapons program
because the contractors fear the bad publicity generated by the suits.
(continued...)

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Thus, the Warner Amendment makes suits against the United States under the
FTCA the exclusive remedy for claims based on atomic testing injuries. This remedy,
however, is illusory, because the Feres doctrine precludes recovery by military
personnel and the discretionary function exception precludes recovery by anyone.37
The constitutionality of the Warner Amendment has been upheld by two federal
courts of appeals.38 Repeal of the Warner Amendment, it should be noted, would not
necessarily result in liability on the part of contractors; there would still be the
possibility that they could raise the government contractor defense. (On the
government contractor defense, see the final section of this report.)
In 1990, Congress enacted the Radiation Exposure Compensation Act, 42
U.S.C. § 2210 note, a compensation program for victims of atomic testing and
uranium mining. (It was most recently amended by Public Law 106-245 (2000)). It
authorizes $50,000 to be paid to any person who contracted leukemia or certain listed
cancers and was physically present in an area affected by atmospheric nuclear tests for
specified periods from 1951 through 1962. It also authorizes $75,000 to be paid to
any person who contracted leukemia or certain listed cancers after having participated
onsite in an atmospheric nuclear test. Finally, it provides $100,000 to any person
employed in a uranium mine at any time from 1947 to 1971 who contracted lung
cancer or a nonmalignant respiratory disease, if he was exposed to specified levels of
radiation. (In none of these cases is a claimant required to prove that radiation
exposure actually caused his disease.) A person who accepts compensation under
the Act forfeits all right to sue the United States or any federal contractor for claims
arising out of the same radiation exposure. “This Act was patterned in part on the
Radiation-Exposed Veterans Compensation Act of 1988 (Public Law 100-321).”39
Department of Justice regulations under the Radiation Exposure Compensation Act
appear at 28 C.F.R. Part 79.
The Intentional Tort Exception
The intentional tort exception, 28 U.S.C. § 2680(h), provides that the FTCA
does not apply to claims:
arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights.
36(...continued)
Hammond v. United States, 786 F.2d 8, 14 (lst Cir. 1986).
37H.R. Rep. No. 99-567, 99th Cong., 2d Sess. 3 (1986), states that “the real effect of the
Warner Amendment is to leave the harmed individuals with no remedy at all.”
38In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d 982 (9th Cir.
1987), cert. denied, 485 U.S. 905 (1988); Hammond v. United States, 786 F.2d 8 (lst Cir.
1986).
39H.R. Rep. No. 101-923, 101st Cong., 2d Sess. 762 (1990); reprinted in 1990 U.S.C.C.A.N.
3269.

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However, the United States may be held liable for any of the first six torts in this
list if committed by an “investigative or law enforcement officer of the United States
Government.” 28 U.S.C. § 2680(h).40 This exception to the intentional tort
exception was enacted in 1974 and “grew out of widespread publicity given to several
incidents in which federal narcotics agents engaged in what a Senate Committee
described as ‘abusive, illegal and unconstitutional “no-knock raids.”’”41
In Sheridan v. United States, 487 U.S. 392 (1988), three naval corpsmen found
a naval enlisted man named Carr unconscious from alcohol consumption and
attempted to take him to a hospital emergency room. Before they reached the
emergency room, Carr regained consciousness, broke away from the corpsmen, and
displayed the barrel of his rifle to them. The corpsmen fled and did not alert any
authority that Carr was inebriated and armed. Carr ended up near a public street and
began shooting at passing vehicles, hitting one of the plaintiffs.
40There are other exceptions to the intentional tort exception. The United States may be held
liable for “misrepresentation or deceit on the part of the [Consumer Product Safety]
Commission or any employee thereof. . . .” 15 U.S.C. § 2053(h)(1)(A). (The CPSC is also
the subject of an exception to the discretionary function exception; see, note 24, supra.) In
addition, several statutes make the intentional tort exception inapplicable to causes of action
arising out of negligence in the performance of medical or legal services by specified federal
employees. If these statutes did not make the intentional tort exception inapplicable, then the
intentional tort exception could bar recovery in malpractice actions arising out of negligence
because “a particular type of claim can be viewed, under traditional concepts, as one type of
tort rather than another, for example as an assault and battery rather than negligence. . . .
Illustrative is the case of Moos v. United States [225 F.2d 705 (8th Cir. 1955)] where the
claimant entered a Veterans Administration hospital for an operation on his left leg and hip;
the surgeons, instead, erroneously operated on his right leg and hip; the claim was held barred
on the sound technical theory that the unconsented operation on the right leg and hip
constituted an assault and battery and that such was the basis of the claim even though it may
have been accompanied by or preceded by negligence.” Jayson, supra, note 16, at
§ 13.06[1][a]. See also, Franklin v. United States, 992 F.2d 1492, 1495 (10th Cir. 1993)
(“intentional tort exclusion bars a claim for damages based on the unauthorized performance
of surgery. . . . [H]owever . . . , the operation of that exclusion is nullified . . . by an immunity
statute [38 U.S.C. § 4116(f), today § 7316(f)] dealing specifically with medical tort claims
arising out of the actions of Veterans Administration (VA) personnel”).
The statutes that make the intentional tort exception inapplicable in these circumstances
include 10 U.S.C. § 1054(e) (legal malpractice by employees of the Department of Defense);
10 U.S.C. § 1089(e) (medical malpractice by employees of the armed forces, National Guard,
Department of Defense, United States Soldiers’ and Airmen’s Home, or Central Intelligence
Agency); 22 U.S.C. § 2702(e) (medical malpractice by Department of State employees); 38
U.S.C. § 7316(f) (medical malpractice by Department of Veterans Affairs employees); 42
U.S.C. § 233(e) (medical malpractice by Public Health Service employees); 42 U.S.C.
§ 2458a(e) (medical malpractice by National Aeronautics and Space Administration
employees).
41Jayson, supra, note 16, at § 13.06[1][b]. The Attorney General may settle, for not more
than $50,000 in any one case, a claim for damages “caused by an investigative or law
enforcement officer as defined in section 2680(h) of title 28 who is employed by the
Department of Justice acting within the scope of employment that may not be settled under
[the FTCA].” 31 U.S.C. § 3724. See also, note 14, supra.

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Because of the intentional tort exception, the plaintiffs in Sheridan could not sue
the government based on Carr’s shooting. Therefore, they sued the government
based on the three corpsmen’s negligence in failing to alert authorities as to the threat
posed by Carr. The government argued that the intentional tort exception barred this
claim because, even though it was based on negligence, it was a claim “arising out”
of assault or battery within the meaning of 28 U.S.C. § 2680(h). The Supreme Court
did not rule on the government’s argument because it decided for the plaintiff on
another ground: that the intentional tort exception should “be construed to apply only
to claims that would otherwise be authorized by the basic waiver of sovereign
immunity. . . . The tortious conduct of an off-duty serviceman, not acting within the
scope of his office or employment, does not itself give rise to Government liability,
whether that conduct is intentional or merely negligent.” Id. at 400-401. This is
because the FTCA makes the government liable only for torts committed by an
employee while acting “within the scope of his office or employment.” 28 U.S.C.
§ 1346(b). Thus, since the government could not be liable for Carr’s acts, the
intentional tort exception did not apply to bar a suit based on the negligence of others
that led to Carr’s acts, even if, as the government argued, the suit arose out of Carr’s
intentional tort. Had Carr not been a federal employee at all, the result would have
been the same: since the government could not be liable for Carr’s acts, whether such
acts were negligent or intentional, the intentional tort exception would not apply to
bar a suit based on the negligence of federal employees that led to Carr’s intentional
tort.
The Court left open the question whether a suit based on the “negligent hiring,
negligent supervision, or negligent training may ever provide the basis for liability
under the FTCA for a foreseeable assault or battery by a Government employee
[acting within the scope of his employment].” Id. at 403 n.8. On this question, there
has subsequently been a split in the federal circuits. See, Billingsley v. United States,
251 F.3d 696, 698 (8th Cir. 2001).
Justice Kennedy concurred in the judgment, but expressed the fear “that many,
if not all, intentional torts of Government employees plausibly could be ascribed to the
negligence of the tortfeasor’s supervisors.” Id. at 407.
Suits Against Federal Employees
The Federal Employees Liability Reform and Tort Compensation Act of 1988,
Public Law 100-694 (commonly know as the Westfall Act, after the Supreme Court
case it overturned), amended the FTCA to make it the exclusive remedy for torts
committed by federal employees within the scope of their employment.42 In other
42This statute overturned Westfall v. Erwin, 484 U.S. 292 (1988), which held that “absolute
immunity from state law tort actions should be available only when the conduct of federal
officials is within the scope of their official duties and that conduct is discretionary in nature.”
Id. at 297-298 (emphasis in original). Prior to enactment of this statute, however, some
federal employees were already immune from suit. For example, 28 U.S.C. § 2679(b), prior
to its amendment by Public Law 100-694, made the FTCA the exclusive remedy for injuries
(continued...)

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words, it precludes federal employees from being sued for torts committed within the
scope of their employment. 28 U.S.C. § 2679(b)(1).
The Westfall Act, however, provides immunity only from liability under state tort
law; a federal employee may still be sued for violating the Constitution or violating
a federal statute that authorizes suit against an individual. 28 U.S.C. § 2679(b)(2).
In such cases, however, if the plaintiff wins a judgment against the United States, then
his action against the employee becomes barred. 28 U.S.C. § 2676.
In United States v. Smith, 499 U.S. 160 (1991), the Supreme Court held that the
Westfall Act made federal employees immune from suit under state tort law even
when an FTCA exception precludes recovery against the United States. In this case,
the United States was immune because the claim had arisen in a foreign country.43
In Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), the Supreme Court
held that the Attorney General’s certification that a federal employee acted within the
scope of employment is reviewable in court. The majority opinion explained:
When a federal employee is sued for a wrongful or negligent act,
the [Westfall Act] empowers the Attorney General to certify that
the employee “was acting within the scope of his office or
employment at the time of the incident out of which the claim
arose . . . .” 28 U.S.C. § 2679(d)(1). Upon certification, the
employee is dismissed from the action and the United States is
substituted as defendant. The case then falls under the
governance of the [FTCA]. . . . If, however, an exception to the
FTCA shields the United States from suit, the party may be left
without a tort action against any party.
42(...continued)
“resulting from the operation by any employee of the Government of any motor vehicle while
acting within the scope of his office or employment.” (This was known as the Federal Drivers
Act.) Other statutes made the FTCA the exclusive remedy for damages resulting from legal
malpractice by employees of the Department of Defense (10 U.S.C. § 1054), and medical
malpractice by employees of the Department of Veterans Affairs (38 U.S.C. § 7316
(renumbered by Public Law 102-40 from 38 U.S.C. § 4116)), the Department of State (22
U.S.C. § 2702), the Public Health Service (42 U.S.C. § 233), the National Aeronautics and
Space Administration (42 U.S.C. § 2458a), or the armed forces, Department of Defense,
United States Soldiers’ and Airmen’s Home, or Central Intelligence Agency (10 U.S.C.
§ 1089).
43As to the immunity for such claims, see, page 2, supra. The employee who allegedly
committed the tort in this case was a military physician, and claimed immunity under the
Gonzalez Act, 10 U.S.C. § 1089 (see, note 42, supra). The Ninth Circuit held that the
Gonzalez Act protects only military medical personnel who commit torts within the United
States. The Supreme Court did not rule on this issue, because it found the defendant immune
under Public Law 100-694. See also, Annotation, Construction and Application of Westfall
Act Provision Providing Federal Employee Immunity From Ordinary Tort Suits if Attorney
General Certifies that Employeee was Acting Within Scope of Office or Employment at Time
of Incident Out of Which Claim Arose (28 USCS § 2679(d)), 120 ALR Fed 95.

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Id. at 419-420. This is what occurred in this case, so, “[e]ndeavoring to redeem their
lawsuit, plaintiffs . . . sought review of the Attorney General’s scope-of-employment
certification, for if the employee was acting outside the scope of his employment, the
plaintiffs’ tort action could proceed against him. The lower court held the
certification unreviewable.” Id. at 420. The Supreme Court reversed, finding that
“Congress did not address this precise issue unambiguously, if at all,” and “that
judicial review of executive action ‘will not be cut off unless there is persuasive reason
to believe that such was the purpose of Congress.’” Id. at 424.44
Constitutional Torts: Federal Employees’ Liability and Immunity.
Although the FTCA does not immunize federal employees when they violate the
Constitution, common law sometimes does. Before examining federal employees’
immunity from liability for constitutional torts, however, it is necessary to discuss
their liability for such torts.45 In Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), federal agents, without a warrant, entered and searched the plaintiff’s
apartment and arrested the plaintiff for alleged narcotics violations. A state official
who commits such a tort, in addition to being subject to liability under state tort law,
may be sued under 42 U.S.C. § 1983, which provides that any person who, under
color of any state statute, deprives another person of rights secured by the
Constitution or a federal statute, shall be liable to the person injured. A federal
official who commits a constitutional tort is not subject to liability under state tort law
(because of the Westfall Act), and no statute similar to § 1983 makes federal officials
liable under federal law for violating another person’s constitutional rights. In Bivens
and subsequent cases, however, the Supreme Court held that such a statute is not
necessary for an injured party to recover damages from a federal official who commits
a constitutional tort.46 “Having concluded that petitioner’s complaint states a cause
of action under the Fourth Amendment, supra, at 390-395, we hold that petitioner is
44A hypothetical issue of federal jurisdiction arose in the case, on which there was no majority
opinion. If a suit against a federal employee is brought in state court and the Attorney
General certifies that the employee was acting within the scope of his employment, the
resulting FTCA case must be removed to federal court. Then, if the federal court rejects the
certification and the employee is again made the defendant, what is the basis for federal
jurisdiction? If the plaintiff and the employee are of diverse citizenship, then there is no
problem, but, if they are not, then there arguably is no basis for federal jurisdiction. However,
the plurality opinion found that the fact that, in this hypothetical case, “there was a
nonfrivolous federal question [whether the employee was acting within the scope of his federal
employment], certified by the local U.S. Attorney, when the case was removed to federal
court,” is an adequate basis to find that the case “arises under” federal law (emphasis in
original). Id. at 435. All this was dictum, as there was diversity jurisdiction in the case before
the Court.
45“The Supreme Court uses the term ‘constitutional tort’ for any constitutional violation for
which a court may award damages.” K. Davis, 5 ADMINISTRATIVE LAW TREATISE § 27:1 (2d
ed. 1984).
46In Davis v. Passman, 442 U.S. 228 (1979), the Court held that a Member of Congress could
be found liable for damages for violating the Due Process Clause of the Fifth Amendment by
firing a member of his staff because of her sex. In its opinion the Court indicated that all
“justiciable constitutional rights are to be enforced through the courts.” Id. at 242.

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entitled to recover money damages for any injuries he has suffered as a result of the
agents’ violation of the Amendment.” Id. at 397.47
Subsequently, however, the Supreme Court indicated “that such a remedy may
not be available when ‘special factors counselling hesitation’ are present.” Chappell
v. Wallace, 462 U.S. 296, 298 (1983). In Chappell, five Navy enlisted men charged
their superior officers with treating them differently because of their minority race.
Guided by “the Court’s analysis in Feres” (id. at 299), the Supreme Court in Chappell
held:
Taken together, the unique disciplinary structure of the Military
Establishment and Congress’ activity in the field constitute
“special factors” which dictate that it would be inappropriate to
provide enlisted military personnel a Bivens-type remedy against
their superior officers.
Id. at 304.
In United States v. Stanley, 483 U.S. 669 (1987), the Army had given a
serviceman LSD without his knowledge, which caused him to suffer severe
personality changes that led to his discharge and the dissolution of his marriage. The
Supreme Court indicated that Feres barred his claim against the government, and that
Chappell barred his claim against the officers involved. The plaintiff had sought to
distinguish his case from Chappell on the grounds that, unlike in Chappell,
the defendants in this case were not Stanley’s superior military
officers, and indeed may well have been civilian personnel, and
that the chain-of-command concerns at the heart of Chappell . . .
are thus not implicated. Second, Stanley argues that there is no
evidence that this injury was “incident to service,” . . . .
Id. at 679-680. The Court found that the second argument was not available to
Stanley because the issue of service incidence had been decided adversely to him
previously.
As for his first argument, Stanley and the lower courts may well
be correct that Chappell implicated military chain-of command
concerns more directly than do the facts alleged here . . . . It is
therefore true that Chappell is not strictly controlling, in the
sense that no holding can be broader than the facts before the
court.
Id. at 680. However, the Court added:
47The statute of limitations for Bivens actions has not been addressed by the Supreme Court,
but lower courts have held “that Bivens actions are governed by the same state personal injury
limitations period applicable to [42 U.S.C.] section 1983 actions . . . .” Cook and Sobieski,
2 CIVIL RIGHTS ACTIONS, ¶ 4.01[B] (2000).

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Since Feres did not consider the officer-subordinate relationship
crucial, but established instead an “incident to service” test, it is
plain that our reasoning in Chappell does not support the
distinction Stanley would rely on. . . . Today, no more than
when we wrote Chappell, do we see any reason why our
judgment in the Bivens context should be any less protective of
military concerns than it has been with respect to FTCA suits,
where we adopted an “incident to service” rule.
Id. at 680-681. Thus, with respect to injuries incurred incident to service as a result
of constitutional torts, the principle behind the Feres doctrine applies equally to
preclude military personnel from suing either the government under the FTCA or
federal officials under Bivens.48
In addition to situations with “special factors counselling hesitation,” Bivens-type
actions are not permitted “when defendants show that Congress has provided an
alternative remedy which it explicitly declared to be a substitute for recovery directly
under the Constitution and viewed as equally effective.” Carlson v. Green, 446 U.S.
14, 18-19 (1980) (emphasis in original).49 The Court in Carlson v. Green allowed a
Bivens-type action against a federal prison official for violating the Cruel and Unusual
Punishment Clause of the Eighth Amendment. The defendant argued that Congress
had intended a suit against the United States under the FTCA as an alternative
remedy, but the Court held:

When Congress amended the FTCA in 1974 to create a cause
of action against the United States for intentional torts
committed by federal law enforcement officers, 28 U.S.C.
§ 2680(h), the congressional comments accompanying that
amendment made it crystal clear that Congress views FTCA and
Bivens as parallel, complementary causes of action.
Id. at 20.
48The principle behind the Feres doctrine, however, should be distinguished from the doctrine
itself, which applies only to suits against the United States. In Cross v. Fiscus, 830 F.2d 755,
756 (7th Cir. 1987), the court of appeals wrote: “The doctrine of Stanley and Chappell tracks
Feres . . . . But its source is different. Feres is a construction of a statute. Stanley and
Chappell are constructions of the Constitution based on considerations similar to those that,
the Court believes, influenced Congress when enacting the FTCA. If Congress amended the
FTCA, the principles of Stanley and Chappell would be unaffected – though Congress could
create a federal remedy against service personnel by passing a separate statute.”
49In Carlson v. Green, the Court spoke of “special factors counselling hesitation” and the
availability of an “alternative remedy which is explicitly declared to be a substitute” as
distinct situations in which Bivens actions are unavailable. In Schweiker v. Chilicky, 487 U.S.
412, 423 (1988), the Court said that “the concept of ‘special factors counselling hesitation
. . .’ has proved to include an appropriate judicial deference to indications . . . that Congress
has provided what it considers adequate remedial mechanisms.” In McCarthy v. Madigan,
503 U.S. 140 (1992), the Court held that, where Congress had not required exhaustion of
remedies, a prisoner could bring a Bivens action solely for money damages without resorting
to an internal grievance procedure.

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In subsequent cases, the Supreme Court has continued to limit the availability of
Bivens actions. In FDIC v. Meyer, 510 U.S. 471 (1994), the Court refused “to
extend Bivens to permit suit against a federal agency, even though the agency –
because Congress had waived sovereign immunity – was otherwise amenable to
suit.”50 In Correctional Services Corporation v. Malesko, 534 U.S. __ (2001), the
Court held that Bivens actions may not be brought “against private entities acting
under color of federal law” – in this case “against a private corporation operating a
halfway house under contract with the Bureau of Prisons.” Explaining its decisions
in both Meyer and Malesko, the Court in Malesko said that the purpose of Bivens is
to deter individual officers, not policymaking entities, from committing
unconstitutional acts. Does this mean that an individual officer of a private entity
acting under color of federal law would be subject to a Bivens action? The Court in
Malesko did not decide the question.
The Practical Side of Bivens Actions. According to one commentator,
“[i]ndividual liability under Bivens is fictional . . . because the federal government in
practice functions as the real party in interest, paying for representation and
reimbursing the sued individuals when they settle or pay judgments.”51
“Bivens has, however,” the commentator continues, “proved to be a
surreptitiously progovernment decision. Although it appears to provide a mechanism
for remedying constitutional violations, its application has rarely led to damages
recoveries. Government figures reflect that, out of approximately 12,000 Bivens
claims filed between 1971 and 1985, Bivens plaintiffs actually obtained a judgment
that was not reversed on appeal in only four cases. While similar figures have not
been systematically kept since 1985, recoveries from both settlements and litigated
judgments continue to be extraordinarily rare. According to one estimate, plaintiffs
obtain a judgment awarding them damages in a fraction of one percent of Bivens cases
and obtain a monetary settlement in less than one percent of such cases.”52
Qualified Immunity to Bivens Actions. Having summarized the law
governing federal employees’ liability for constitutional torts, we return to the
question of their common law immunity from liability for such torts. (The FTCA, it
will be recalled, gives them immunity only from state tort law.) Such immunity is
generally qualified, yet “[q]ualified immunity is undoubtedly the most significant bar
50Correctional Services Corporation v. Malesko, 534 U.S. __ (2001).
51Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials’
Individual Liability Under Bivens, 88 Georgetown L.J. 65 (1999). Department of Justice
regulations at 28 C.F.R. § 50.15(a) provide: “Under the procedures set forth below, a federal
employee . . . may be provided representation in civil, criminal, and Congressional
proceedings in which he is sued, subpoenaed, or charged in his individual capacity . . . when
the actions for which representation is requested reasonably appear to have been performed
with the scope of the employee’s employment and the Attorney General or his designee
determines that providing representation would otherwise be in the interests of the United
States.”
52Id. at 66 (footnotes omitted).

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to constitutional tort actions.”53 In Butz v. Economou, 438 U.S. 478, 507 (1978), the
Supreme Court held
that, in a suit for damages arising from unconstitutional action,
federal executive officials exercising discretion are entitled only
to the qualified immunity specified in Scheuer, subject to those
exceptional situations where it is demonstrated that absolute
immunity is essential for the conduct of public business.
In Scheuer v. Rhodes, 416 U.S. 232, 247-248 (1974), referred to in this
quotation, the Supreme Court held that state executive officers are immune from
liability under 42 U.S.C. § 1983
in varying scope . . . , the variation being dependent upon the
scope of discretion and responsibilities of the office and all the
circumstances as they reasonably appeared at the time of the
action on which liability is sought to be based. It is the existence
of reasonable grounds for the belief formed at the time and in
light of the circumstances, coupled with good-faith belief, that
affords a basis for qualified immunity of executive officers for
acts performed in the course of official conduct.
Because, under Butz, the Scheuer standard applies to federal as well as to state
officials, if a federal official, in the exercise of a discretionary function, violates a
person’s constitutional rights, he may be subject to liability, even though the
discretionary function exception of the FTCA would preclude liability on the part of
the government.54 Congress, however, has the power to grant additional immunity to
federal officials. See, Butz, 438 U.S. at 500.
53Id. at 80.
54In Anderson v. Creighton, 483 U.S. 635, 641 (1987), the Supreme Court applying the Butz
qualified immunity standard, held that a federal law enforcement officer is not liable for
participating in a search that violates the Fourth Amendment if “he could, as a matter of law,
reasonably have believed that the search . . . was lawful.” In Nixon v. Fitzgerald, 457 U.S.
731, 750, 754 (1982), the Court held that “[t]he President’s unique status under the
Constitution” entitles him to absolute immunity from “private suits for damages based on [his]
official acts.” (He is not immune, however, for actions allegedly taken before his term began.
Clinton v. Jones, 520 U.S. 681 (1997)). In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the
Court held that Presidential aides are entitled only to qualified immunity; specifically, they are
immune unless their actions violate clearly established law. In Mitchell v. Forsyth, 472 U.S.
511 (1985), the Court held that the holding in Harlow applied even for acts performed by the
Attorney General in the interest of national security. Additional discussion of the immunity
of federal officials for constitutional torts may be found in Cook and Sobieski, 1 CIVIL RIGHTS
ACTIONS ¶ 2.11 (2000).

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The Government Contractor Defense
In Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988), the Supreme
Court held that “uniquely federal interests” in the government’s procurement of
equipment require that a “government contractor defense” be available in certain
cases. This is a defense that manufacturers may assert in products liability cases
alleging design defects. These are cases, brought under state law, in which the
plaintiff alleges that his injuries were caused by a product that was defective in that
the manufacturer failed to use the safest feasible design for the product. In its
defense, the manufacturer may assert that it manufactured the product pursuant to a
government contract and that the design it used was required by contract
specifications. In Boyle, the Supreme Court held that, notwithstanding state law,
“federal common law” requires that the government contractor defense be available
in certain cases.55 This is because “[t]he imposition of liability on Government
contractors will directly affect the terms of Government contracts: either the
contractor will decline to manufacture the design specified by the Government, or it
will raise its price. Either way, the interests of the United States will be directly
affected.” Id. at 507.
The Court found that displacement of state law will occur only where “a
‘significant conflict’ exists between an identifiable ‘federal policy or interest and the
[operation] of state law,’ . . . or the application of state law would ‘frustrate specific
objectives’ of federal legislation . . . .” Id. A significant conflict may exist, the Court
found, where “the state-imposed duty of care that is the asserted basis of the
contractor’s liability . . . is precisely contrary to the duty imposed by the Government
contract.” Id. at 509. In some cases, however, the state-imposed duty of care will
not conflict with the federal contract, or, even if it does, will not be significant, as
where “a federal procurement officer orders, by model number, a quantity of stock
[items that happen to have a design defect].” Id. In such cases, the government
contractor defense would not be available.
Boyle was a suit by the father of a Marine who had been killed incident to service
in a helicopter accident, allegedly caused by the helicopter’s having been defectively
designed. The lower court had allowed the government contractor defense on the
basis of the reasoning behind the Feres doctrine. As the Supreme Court explained:
“Military contractor liability would conflict with this doctrine, the Fourth Circuit
reasoned, since the increased cost of the contractor’s tort liability would be added to
the price of the contract, and ‘[s]uch pass-through costs would . . . defeat the purpose
of the immunity for military accidents conferred upon the government itself.’” Id. at
55The Court noted “that a few areas, involving ‘uniquely federal interests,’. . . are so
committed by the Constitution and laws of the United States to federal control that state law
is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent
explicit statutory directive) by the courts – so-called ‘federal common law.’” Id. at 504.
Justice Brennan, in his dissent in Boyle, objected that “[j]ust as ‘[t]here is no federal pre-
emption in vacuo, without a constitutional text or a federal statute to assert it,’. . . federal
common law cannot supersede state law in vacuo out of no more than an idiosyncratic
determination by five Justices that a particular area is ‘uniquely federal.’” Id. at 517.

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510.56 The Supreme Court did not adopt the Feres doctrine as the basis for the
government contractor defense:
Since that doctrine covers only service-related injuries, and not
injuries caused by the military to civilians, it could not be
invoked to prevent, for example, a civilian’s suit against the
manufacturer of fighter planes, based on a state tort theory,
claiming harm from what is alleged to be needlessly high levels
of noise produced by jet engines. Yet we think that the character
of the jet engines the Government orders for its fighter planes
cannot be regulated by state tort law, no more in suits by
civilians than in suits by members of the Armed Services.
Id. at 510-511. Rather, the Court found that the reasoning behind the discretionary
function exception furnished a better basis for the government contractor defense:
We think that the selection of the appropriate design for military
equipment to be used by our Armed Forces is assuredly a
discretionary function within the meaning of this provision. . . .
The financial burden of judgments against the contractors would
ultimately be passed through, substantially if not totally, to the
United States itself, since defense contractors will predictably
raise their prices to cover, or to insure against, contingent
liability for the Government-ordered designs. . . . In sum, we are
of the view that state 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.
Id. at 511-512. Delineating these circumstances, the Court ruled:
Liability for design defects in military equipment cannot be
imposed, pursuant to state law, when (1) the United States
approved reasonably precise specifications; (2) the equipment
conformed to those specifications; and (3) the supplier warned
the United States about the dangers in the use of the equipment
that were known to the supplier but not to the United States.
The first two of these conditions assure that the suit is within the
56The Supreme Court has held that in cases in which the United States is immune under Feres,
a government contractor that is held liable may not recover indemnification from the United
States because to allow indemnification would make the United States indirectly liable to the
injured party. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977). The
Federal Employees’ Compensation Act precludes federal civilian employees from suing under
the FTCA for work-related injuries. 5 U.S.C. § 8116(c). The Supreme Court has held that,
if a federal civilian employee recovers damages from a government contractor for a work-
related injury, the government contractor may recover indemnification from the United States.
The Court did not follow its reasoning in Stencel because, unlike in the military context of
Stencel, “[i]t is clear that the Government has waived its sovereign immunity here.” Lockheed
Aircraft Corp. v. United States, 460 U.S. 190, 197 n.8 (1983).

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area where the policy of the “discretionary function” would be
frustrated – i.e., they assure that the design feature in question
was considered by a Government officer, and not merely by the
contractor itself. The third condition is necessary because, in its
absence, the displacement of state tort law would create some
incentive for the manufacturer to withhold knowledge of risks
. . . [thereby] cutting off information highly relevant to the
discretionary decision.
Id. at 512.
Although the defendant in Boyle was a military contractor, and the Court
throughout its opinion refers to military equipment, the fact that it based its opinion
on the discretionary function exception and not on the Feres doctrine seems to
indicate that the government contractor defense is available to both civilian and
military contractors. In Nielson v. George Diamond Vogel Paint Co., 892 F.2d 1450
(9th Cir. 1990), the court acknowledged that the Supreme Court’s reliance on the
discretionary function exception meant that the government contractor defense can
in principle apply to civilian equipment. “Yet,” it added, “the policy behind the
defense remains rooted in considerations peculiar to the military.” Id. at 1455. In the
case before it, which involved civilian equipment, it found “no reason to hold that the
application of state law would create a ‘significant conflict’ with federal policy
requiring a displacement of state law.” Id. There is currently a split in the circuits
over the applicability of the government contractor defense to non-military
contractors.57
In Hercules, Inc. v. United States, 516 U.S. 417 (1996), the Supreme Court
rejected a claim by Agent Orange manufacturers that they were entitled to
reimbursement from the government for the costs of defending and settling tort claims
brought against them by Vietnam veterans who were injured by the chemical. The
government had “prescribed the formula and detailed specifications for manufacture”
(id. at 419), but the settlement with the veterans occurred before Boyle established
the government contractor defense.
The manufacturers sued the United States under the Tucker Act, 28 U.S.C.
§§ 1346(a), 1491(a), which authorizes suits against the United States founded upon
“any express or implied contract.” They alleged an implied agreement by the
government to reimburse them for tort liability, and a breach of the contractual
warranty of specifications. As to the first, the Court held that there was no contract
either express or implied in fact; as to the second, the Court held that the government
“warrants that the contractor will be able to perform the contract satisfactorily if it
follows the specifications” (id. at 425), but that this warranty does not extend to
third-party claims against the contractor.
57See, Sean Watts, Boyle v. United Technologies Corp. and the Government Contractor
Defense: An Analysis Based on the Current Circuit Split Regarding the Scope of the
Defense, 40 William and Mary Law Review 687 (1999).

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