ȱ
ȱȱȱȱ
¢ȱȱ
ȱ¢ȱ
ȱǯȱȱ
ȱ¢ȱ
ȱŘŝǰȱŘŖŖşȱ
ȱȱȱ
ŝȬśŝŖŖȱ
ǯǯȱ
şśȬŝŗŝȱ
ȱȱȱ
Pr
epared for Members and Committees of Congress
ȱȱȱȱ
ȱ
¢ȱ
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.
In the 110th Congress, two bills have been introduced that would amend the Federal Tort Claims
Act: H.R. 2249, the Federal Tort Claim Reform Act of 2007, and H.R. 6093, the Carmelo
Rodriguez Military Medical Accountability Act of 2008.
ȱȱȱ
ȱȱȱȱ
ȱ
ȱ
Introduction ..................................................................................................................................... 1
The Feres Doctrine and Medical Malpractice ................................................................................. 4
The Discretionary Function Exception............................................................................................ 8
Suits by Victims of Atomic Testing ............................................................................................... 10
The Warner Amendment and the Radiation Exposure Compensation Act.............................. 12
The Intentional Tort Exception...................................................................................................... 14
Suits Against Federal Employees .................................................................................................. 15
Certification............................................................................................................................. 16
Constitutional Torts: Federal Employees’ Liability and Immunity ......................................... 18
The Practical Side of Bivens Actions ...................................................................................... 21
Qualified Immunity to Bivens Actions .................................................................................... 21
The Government Contractor Defense............................................................................................ 22
ȱ
Author Contact Information .......................................................................................................... 25
Acknowledgments ......................................................................................................................... 25
ȱȱȱ
ȱȱȱȱ
ȱ
ȱ
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.4 The fact that state
law would make a state or municipal entity—as opposed to a private person—liable under like
circumstances is not sufficient to make the United States liable under the FTCA.5
The FTCA, however, 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;6 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;7 it may not be held liable for interest prior
to judgment or for punitive damages (28 U.S.C. § 2674);8 for the act or omission of an employee
1 Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940).
2 United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 (1926).
3 The 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.
4 Another section of the FTCA provides that the United States shall be liable “in the same manner and to the same
extent as a private individual under like circumstances” (28 U.S.C. § 2674(a)), and the Supreme Court has noted that
“like circumstances” are not limited to “the same circumstances,” but include “analogous” circumstances. United States
v. Olson, 546 U.S. 43, 47 (2005).
5 United States v. Olson, supra, note 4.
6 Federal 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).
7 The requirement in 28 U.S.C. § 1346(b) that liability be based on a “negligent or wrongful 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, P.L. 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.”
8 In 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
(continued...)
ȱȱȱ
ŗȱ
ȱȱȱȱ
ȱ
exercising due care in the execution of an invalid statute or regulation (28 U.S.C. § 2680);9 for
claims “arising out of the loss, miscarriage, or negligent transmission of letters or postal
matter”;10 for claims “arising in respect of the assessment or collection of any tax11 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”;12 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.13
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. § 2675.14 This must be done within two years after
the claim accrues. 28 U.S.C. § 2401(b).15 If, within six months after receiving a claim, the agency
(...continued)
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).
9 Subsequent exceptions cited in the sentence also appear in 28 U.S.C. § 2680.
10 In Dolan v. United States Postal Service, 546 U.S. 481 (2006), the Supreme Court held that the postal exception is
inapplicable to a claim that mail left on the plaintiff’s porch caused her to trip and fall, just as it is inapplicable to the
negligent operation of postal motor vehicles. “Congress intended to retain immunity,” the Court wrote, “only for
injuries arising, directly or consequentially, because mail either fails to arrive at all or arrives late, in damaged
condition, or at the wrong address.” Id. at 489. Losses of this type, the Court added, “are at least to some degree
avoidable or compensable through postal registration and insurance.” Id. at 490.
11 Section 6241 of the Technical and Miscellaneous Revenue Act of 1988, P.L. 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.
12 P.L. 106-185 (2000) added an exception to this exception to the FTCA, allowing suits in some cases involving
forfeiture of property other than as a sentence for a crime. In Ali v. Federal Bureau of Prisons, 128 S. Ct. 831, 834
(2008), the Court held “that the broad phrase ‘any other law enforcement officer’ covers all law enforcement officers,”
including officers of the Federal Bureau of Prisons, and does not apply “only to law enforcement officers enforcing
customs or excise laws.”
13 In 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.” In Sosa v. Alvarez-Machain,
542 U.S. 692, 712 (2004), the Supreme Court held “that the FTCA’s foreign country exception bars all claims based on
any injury suffered in a foreign country, regardless of where the tortious act or omission occurred.” The plaintiff’s suit
therefore was dismissed even though his “abduction in Mexico was the direct result of wrongful acts of planning and
direction by DEA agents located in California.” Id. at 702. The Court was unwilling to adopt the “headquarters
doctrine” because “it will virtually always be possible to assert that the negligent activity that injured the plaintiff
[abroad] was the consequence of faulty training, selection or supervision—or even less than that, lack of careful
training, selection or supervision—in the United States.” Id. Although the United States is not liable for claims arising
in a foreign country, federal statutes give several federal agencies the authority to compensate victims of torts
committed by federal employees in foreign countries. These statutes include 22 U.S.C. §§ 1475(5), 2269(f), 2269-1
(Department of State), 38 U.S.C. § 515(b) (Department of Veterans Affairs), 22 U.S.C. § 2509(b) (Peace Corps), and
10 U.S.C. §§ 2733, 2734 (Department of Defense).
14 In 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.
15 A 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.
ȱȱȱ
Řȱ
ȱȱȱȱ
ȱ
mails a denial of the claim to the claimant, then the claimant has six months to file suit in federal
district court. 28 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.16 Alternatively, if a claimant sues a
federal employee, in federal or state court, for a tort committed while acting within the scope of
his or her office or employment, the suit will be dismissed and the United States will be
substituted as the defendant in federal district court. 28 U.S.C. § 2679(b)(1). At this point, the
federal district court will dismiss the suit that is now against the United States because the
plaintiff failed to present a claim to the appropriate federal agency. 28 U.S.C. § 2679(d)(5). The
claimant may then file the claim with the appropriate federal agency, and, if he meets two
conditions, it will not matter if he files the claim more than two years after the injury occurred.
These conditions are that (A) the claimant had sued the federal employee within two years after
the injury occurred, and (B) the claimant files the claim with the appropriate federal agency
within 60 days after the dismissal of the suit. 28 U.S.C. §§ 2401(b); 2679(d)(5).
Suits under the FTCA are tried without a jury. 28 U.S.C. § 2402.17
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.18 “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.”19 United States attorneys are authorized to settle claims in amounts up to $1
million.20 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% of
a court award or a settlement made by the Attorney General or his designee after suit is filed, or
more than 20% of a settlement made by the agency with whom a claim is filed. 28 U.S.C.
§ 2678.21 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).22
16 Pascale v. United States, 998 F.2d 186 (3d Cir. 1993).
17 See, Kirst, Jury Trial and the Federal Tort Claims Act: Time to Recognize the Seventh Amendment Right, 58 Texas
Law Review 549 (1980).
18 28 U.S.C. § 2672, as amended by P.L. 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 to the
Department of Justice in non-FTCA situations is noted in footnote 45 of this report.
19 28 U.S.C. § 2672, as amended by P.L. 101-552, § 8; see also, 38 U.S.C. § 515.
20 28 C.F.R. § 0.168(d)(2); see, Lester Jayson and Robert Longstreth, HANDLING FEDERAL TORT CLAIMS,
§ 15.05[1]. 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, the Secretary of Defense, and the Secretary of Health and Human Services,
and of up to $100,000 to the Secretary of Transportation. 28 C.F.R. Part 14, App.
21 See, 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).
22 The 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
(continued...)
ȱȱȱ
řȱ
ȱȱȱȱ
ȱ
ȱȱȱȱȱȱ
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:
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.
(...continued)
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 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 8, 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.”
ȱȱȱ
Śȱ
ȱȱȱȱ
ȱ
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).
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,23 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.
23 804 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).
ȱȱȱ
śȱ
ȱȱȱȱ
ȱ
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.
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 earlier in 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 700.24
24 The 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.
ȱȱȱ
Ŝȱ
ȱȱȱȱ
ȱ
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.
825 F.2d at 205-206.25
In Del Rio v. United States, 833 F.2d 282 (11th 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’ ...”26
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.27
25 The three rationales referred to are those cited in Stencel and by the majority in Johnson.
26 833 F.2d at 286 (citing Shearer, 473 U.S. at 56, and adding emphasis).
27 See, 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., 2nd sess. (1988).
ȱȱȱ
ŝȱ
ȱȱȱȱ
ȱ
Although 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 application of the Feres doctrine to spouses and children of military personnel is discussed
below, at the beginning of the section on “Suits by Victims of Atomic Testing.”
ȱ¢ȱȱ¡ȱ
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.28 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
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 820.29
28 Congress 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. P.L. 94-380; see also, note 7, 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).
29 More 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
(continued...)
ȱȱȱ
Şȱ
ȱȱȱȱ
ȱ
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.30 The 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
(...continued)
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.
30 More 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 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.
ȱȱȱ
şȱ
ȱȱȱȱ
ȱ
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.
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.31
ȱ¢ȱȱȱȱȱ
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.32
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
31 The 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.
32 Jayson and Longstreth, supra, note 20, § 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.
ȱȱȱ
ŗŖȱ
ȱȱȱȱ
ȱ
spouses of soldiers from recovering for their own injuries where such injuries resulted from the
soldiers’ injuries that were caused by the soldiers’ having been ordered into nuclear blast areas.33
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.34 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 been exposed to radiation.35 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.36
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 excep-
tion 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.
33 E.g., Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983), cert. denied, 465 U.S. 1023 (1984) (barring a suit for the
soldier’s spouse’s miscarriages and children’s birth defects where these injuries were caused by chromosomal damages
resulting from “the Army’s negligent exposure of their husband and father to harmful levels of radiation in the course
of his former military service,” id. at 98 n.2). The court stated that it sensed the “injustice” of the result, but that it has
“no legal authority, as an intermediate appellate court, to decide the case differently.” Id. at 97.
34 Id.
35 Broudy v. United States, 722 F.2d 566, 570 (9th Cir. 1983).
36 Seveny v. United States Government, Department of Navy, 550 F. Supp. 653 (D. R.I. 1982).
ȱȱȱ
ŗŗȱ
ȱȱȱȱ
ȱ
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] 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 ... 37
In Allen v. United States, 816 F.2d 1417 (10th 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.
Id. at 1421, 1424.
ȱȱȱȱȱȱ¡ȱ
ȱȱ
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
37 Id. 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 29 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.”
ȱȱȱ
ŗŘȱ
ȱȱȱȱ
ȱ
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.38 Federal law, however, bars
victims of atomic testing from suing federal government contractors. Section 1631 of P.L. 98-525,
42 U.S.C. § 2212 (known as the “Warner Amendment”),39 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.40
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.41 The constitutionality of the Warner
Amendment has been upheld by two federal courts of appeals.42 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 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
38 See, Prosser and Keeton, THE LAW OF THE COURTS (5th ed. 1984) § 79, p. 558.
39 This provision was repealed and re-enacted (as the Atomic Testing Liability Act, 42 U.S.C. § 2210 note) by sections
3140 and 3141 of P.L. 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.Rept. 101-923, 101st Cong., 2nd
sess. 763 (1990); reprinted in 1990 U.S.C.C.A.N. 3270.
40 The 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.Rept. 98-500, 98th Cong., 2nd 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.
Hammond v. United States, 786 F.2d 8, 14 (1st Cir. 1986).
41 H.Rept. 99-567, 99th Cong., 2nd sess. 3 (1986), states that “the real effect of the Warner Amendment is to leave the
harmed individuals with no remedy at all.”
42 In 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 (1st Cir. 1986).
ȱȱȱ
ŗřȱ
ȱȱȱȱ
ȱ
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 (P.L. 100-321).”43 Department of Justice regulations under the Radiation Exposure
Compensation Act appear at 28 C.F.R. Part 79.
ȱ ȱȱ¡ȱ
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.
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).44 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.”’”45
43 H.Rept. 101-923, 101st Cong., 2nd sess. 762 (1990); reprinted in 1990 U.S.C.C.A.N. 3269.
44 There 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
28, 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 and Longstreth, supra, note 20, 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).
45 Jayson and Longstreth, supra, note 20, 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 28 U.S.C.
§ 2680(h) who is employed by the Department of Justice acting within the scope of employment that may not be settled
(continued...)
ȱȱȱ
ŗŚȱ
ȱȱȱȱ
ȱ
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.
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 was subsequently 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.
ȱȱȱ¢ȱ
The Federal Employees Liability Reform and Tort Compensation Act of 1988, P.L. 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
(...continued)
under the FTCA. See 31 U.S.C. §§ 3724 and 3724 note. See also note 18, supra. In addition, the Tariff Act of 1930
authorizes the Secretary of Homeland Security to settle claims of up to $50,000 that cannot be settled under the FTCA.
19 U.S.C. § 1630.
ȱȱȱ
ŗśȱ
ȱȱȱȱ
ȱ
of their employment.46 In other 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). Such cases are barred, however, if
the claimant sues the United States under the FTCA and a judgment in the FTCA case is handed
down before a judgment in the case against the employee is handed down.47 28 U.S.C. § 2676.48
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.49
ȱ
If a federal employee is sued under state tort law, in federal or state court, for conduct that may
have occurred within the scope of his employment, then he may turn over papers that were served
on him to the Attorney General, and the Attorney General may certify that the federal employee
“was acting within the scope of employment at the time of the incident out of which the claim
arose.”50 If the Attorney General makes this certification, the United States is substituted for the
employee as a defendant in the action.51 The Attorney General’s certification conclusively
46 This 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 P.L. 100-694, made the FTCA the exclusive remedy for injuries “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 P.L. 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(a)), 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).
47 The case against the employee is barred whether the judgment in the FTCA case is for or against the United States.
Farmer v. Perrill, 275 F.3d 958, 963 n.7 (10th Cir. 2001). If the judgment in the case against the employee is handed
down first, then the plaintiff may secure judgments on both claims, but may not recover damages more than once.
Turner v. Ralston, 409 F. Supp. 1260 (W.D. Wis. 1976).
48 In Will v. Hallock, 546 U.S. 345 (2006), the Supreme Court held that, if a federal district court rules on a motion that
§ 2676 constitutes a bar against a suit against a federal employee, then 28 U.S.C. § 1291 precludes an appeal of that
ruling, as the “collateral order doctrine” does not apply. By contrast, rulings that reject an employee’s claim of absolute
or qualified immunity are immediately appealable under the collateral order doctrine.
49 As to the immunity for such claims, see text accompanying n.13, 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
46, 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
P.L. 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 Employee 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.
50 28 U.S.C. § 2679(d)(1).
51 Id.
ȱȱȱ
ŗŜȱ
ȱȱȱȱ
ȱ
establishes that the defendant had been acting within the “scope of office or employment for
purposes of remov[ing]” a case from state court to federal district court.52 If the Attorney General
refuses to certify that the federal employee “was acting within scope of employment,” then the
employee may petition the court in which he was sued for certification that he had been acting
within the scope of employment.53 If the court certifies that he had been acting within the scope
of employment, then the United States will be substituted as a defendant.54 If the court that made
this certification was a state court, then the Attorney General may remove the case to a federal
district court, but if the federal district court finds that the employee’s actions were not within the
scope of employment, then the case must be remanded to state court.55
The Supreme Court has decided two cases addressing the certification provisions. 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.
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 424.56
In Osborn v. Haley, 549 U.S. 225 (2007), a federal employee had been sued in state court, and the
Attorney General had certified that the employee had been acting within the scope of
employment. The federal district court had invalidated the Attorney General’s certification,
finding it improper because the government maintained that the incident in dispute never
happened. The federal district court then remanded the suit to the state court, thereby preventing
52 § 2679(d)(2). As noted earlier in this report, suits under the FTCA may be heard only in federal district court.
53 § 2679(d)(3).
54 Id.
55 Id.
56 A 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.
ȱȱȱ
ŗŝȱ
ȱȱȱȱ
ȱ
the United States from substituting itself as a defendant. The court of appeals vacated the district
court decision and the Supreme Court affirmed the court of appeals decision. The Supreme Court
held that the Attorney General’s certification was proper and that the United States must remain
as a substitute defendant “unless and until the District Court determines that the employee, in fact
... engaged in conduct beyond the scope of his employment.” 549 U.S. at 231. Next, the Supreme
Court examined two conflicting statutory provisions to determine whether a case that the
Attorney General had certified and that had been removed from a state court to a federal district
court could be remanded to the state court. One provision, 28 U.S.C. § 2679(d)(2), states that the
Attorney General’s certification is conclusive for the purposes of removing a case from a state
court to a federal district court. The other provision, 28 U.S.C. § 1447(d), bars appellate review of
“[a]n order remanding a case to the State court from which it was removed.” The Supreme Court
held that 28 U.S.C. § 2679(d)(2) controls, so that once an Attorney General certifies, requiring the
action to be removed from state court to federal district court, the federal district court must retain
jurisdiction and cannot remand.
The application of the FTCA’s statute of limitations to suits against the United States that were
initially brought against a federal employee is discussed above in the “Introduction.”
ȱDZȱȱ¢Ȃȱ¢ȱȱ ¢ȱ
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.57 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.58 “Having concluded that petitioner’s complaint states a cause of action under
the Fourth Amendment, supra, at 390-395, we hold that petitioner is entitled to recover money
damages for any injuries he has suffered as a result of the agents’ violation of the Amendment.”
Id. at 397.59
57 “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).
58 In 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.
59 The 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] (2006).
ȱȱȱ
ŗŞȱ
ȱȱȱȱ
ȱ
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 304.60
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:
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.61
60 In Bush v. Lucas, 462 U.S. 367, 368 (1983), the Court declined “to authorize a new nonstatutory damages remedy for
federal employees whose First Amendment rights are violated by their superiors.” The Court’s reason was that “such
claims arise out of an employment relationship that is governed by comprehensive procedural and substantive
provisions giving meaningful remedies against the United States.”
61 The 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.
(continued...)
ȱȱȱ
ŗşȱ
ȱȱȱȱ
ȱ
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).62 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.63
Id. at 20.
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 declined “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.”64 In Correctional Services Corporation v. Malesko,
534 U.S. 61 (2001), the Court held that Bivens actions may not be brought “against private
entities acting under color of federal law” (id. at 66)—in this case “against a private corporation
operating a halfway house under contract with the Bureau of Prisons” (id. at 63). 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.
In Wilkie v. Robbins, 127 S. Ct. 2588, 2598 (2007), the Supreme Court explained that
the decision whether to recognize a Bivens remedy may require two steps. In the first place,
there is the question whether any alternative, existing process for protecting [a
constitutionally recognized] interest amounts to a convincing reason for the Judicial Branch
(...continued)
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.”
62 In 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.
63 In Castaneda v. United States, 546 F.3d 682, 699 (9th Cir. 2008), the court of appeals held that, although 42 U.S.C.
§ 233(a)—cited in note 46, supra—precludes a state tort action against Public Health Services employees, it does not
preclude a Bivens action against them, because it “does not explicitly declare the FTCA to be a substitute remedy for
Bivens actions against PHS officers and employees.” Its holding conflicted with that of Cuoco v. Moritsugu, 222 F.3d
99 (2d Cir. 2000).
64 Correctional Services Corporation v. Malesko, 534 U.S. 61, 69 (2001).
ȱȱȱ
ŘŖȱ
ȱȱȱȱ
ȱ
to refrain from providing a new and freestanding remedy in damages. But even in the
absence of an alternative, a Bivens remedy is a subject of judgment: “the federal courts must
make the kind of remedial determination that is appropriate for a common-law tribunal,
paying special heed, however, to any special factors counseling hesitation before authorizing
a new kind of federal litigation.” [Citations omitted.]
In Wilkie v. Robbins, the plaintiff had sought damages from officials of the Bureau of Land
Management, whom he “accused of harassment and intimidation aimed at extracting an easement
across private property.” Id. at 2593. The Court, applying the two steps it cited, declined to allow
a Bivens action, finding that “[a] judicial standard to identify illegitimate pressure going beyond
legitimately hard bargaining would be endlessly knotty to work out ... and would invite an
onslaught of Bivens actions.” Id. at 2604.
ȱȱȱȱȱȱ
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.”65
“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.66
ȱ ¢ȱȱȱȱ
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 to constitutional tort
actions.”67 In Butz v. Economou, 438 U.S. 478, 507 (1978), the Supreme Court held
65 Cornelia 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.”
66 Id. at 66 (footnotes omitted).
67 Id. at 80.
ȱȱȱ
Řŗȱ
ȱȱȱȱ
ȱ
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.68 Congress, however, has the power
to grant additional immunity to federal officials. See, Butz, 438 U.S. at 500.
ȱ ȱȱȱ
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.69 This is because “[t]he imposition of
68 In 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 (2006).
69 The 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.
ȱȱȱ
ŘŘȱ
ȱȱȱȱ
ȱ
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
510.70 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
70 The 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).
ȱȱȱ
Řřȱ
ȱȱȱȱ
ȱ
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 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.71
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 specifi-
cations 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.
71 See, 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).
ȱȱȱ
ŘŚȱ
ȱȱȱȱ
ȱ
ȱȱ ȱ
Henry Cohen
Vivian S. Chu
Legislative Attorney
Legislative Attorney
hcohen@crs.loc.gov, 7-7892
vchu@crs.loc.gov, 7-4576
ȱ
Vanessa K. Burrows, Legislative Attorney, contributed to this report.
ȱȱȱ
Řśȱ