University of St. Thomas Law Journal Volume 8 Article 5 Issue 3 Spring 2011

2011 Intentional Torts and Other Exceptions to the Federal Tort Claims Act David W. Fuller

Bluebook Citation David W. Fuller, Intentional Torts and Other Exceptions to the Federal Tort Claims Act, 8 U. St. Thomas L.J. 375 (2011).

This Article is brought to you for free and open access by UST Research Online and the University of St. Thomas Law Journal. For more information, please contact [email protected]. 31446-ust_8-3 Sheet No. 44 Side A 05/11/2012 16:54:17 THER O EDERAL CT 1 F A but other important exceptions 2 ULLER 375 ORTS AND LAIMS W. F RTICLE A T C AVID D , [t]hat, with regard to acts or omissions of investigative or ORT T Provided XCEPTIONS TO THE E NTENTIONAL I The Federal Tort Claims Act (FTCA) creates a broad waiver of sover- Claims Act (FTCA) creates a broad The Federal Tort 2. under 28 U.S.C. § In relevant part, the exceptions 2680 (2006), read as follows: 1. District of Minnesota. The views expressed in this arti- Assistant United States Attorney, The provisions of this chapter and section 1346(b) of this title shall not apply to—The provisions of this chapter and section 1346(b) (a) of an employee of the [g]overnment, Any claim based upon an act or omission or regulation, whether or not such exercising due care, in the execution of a statute exercise or performance or the failure to statute or regulation be valid, or based upon the duty on the part of a federal agency or an exercise or perform a discretionary function or the discretion involved be abused. employee of the [g]overnment, whether or not (b) or negligent transmission of letters or Any claim arising out of the loss, miscarriage, postal matter. (c) or collection of any tax or customs Any claim arising in respect of the assessment or other property by any officer of duty, or the detention of any goods, merchandise, officer. . . . customs or excise or any other law enforcement . . . . (d) by chapter 309 or 311 of title 46 relating Any claim for which a remedy is provided States. to claims or suits in admiralty against the United (e) of any employee of the [g]overnment in Any claim arising out of an act or omission of [t]itle 50, Appendix. administering the provisions of sections 1-31 (f) or establishment of a quarantine by Any claim for damages caused by the imposition the United States. [(g) Repealed. Sept. 26, 1950, c. 1049, § 13(5), 64 Stat. 1043.] (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investi- gative or law enforcement officer” means any officer of the United States who is em- M K cle are solely my own and do not necessarily represent the positions of the United States Depart- cle are solely my own and do not necessarily ment of Justice. eign immunity for tort claims against the United States but also provides for tort claims against the United States eign immunity for “discretionary func- Beyond the much-discussed a number of exceptions. §tion” exception found at 28 U.S.C. 2680(a), additional exceptions—such exception—areas the so-called “intentional tort” located throughout the matter and wording. Most of them statutory text and vary widely in subject §appear in a list found at 28 U.S.C. 2680, \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 1 11-MAY-12 11:23 C Y 31446-ust_8-3 Sheet No. 44 Side A 05/11/2012 16:54:17 A 05/11/2012 44 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 44 Side B 05/11/2012 16:54:17 M K C Y [Vol. 8:3 5 The exceptions are generally jurisdic- The exceptions are 6 Still more exceptions have been implied by exceptions have Still more 3 , 28 U.S.C. § a way that 2671 (2006) (defining “employee” and “agency” in , 5 U.S.C. § United 8116(c) (2006) (barring federal employees from suing the , Feres v. United States, 340 U.S. 135, 146 (1950) (barring all FTCA claims by , United States v. Orleans, 425 U.S. 807, 814 (1976); Logue v. United States, 412 UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY or arise from other federal statutes. from other federal or arise 4 7 See, e.g. See, e.g. See, e.g. See, e.g. This article provides an overview of these carve-outs to the FTCA’s an overview of these carve-outs This article provides As with the discretionary-function exception, applicability of these ex- applicability of exception, discretionary-function As with the 3. 4. 5. 7. Jablonski v. United States, 712 F.2d 391, 395 (9th Cir. 1983). 6. powered by law to execute searches, to seize evidence, or to make arrests for violations powered by law to execute searches, to seize of [f]ederal law. (i) operations of the Treasury or by the Any claim for damages caused by the fiscal regulation of the monetary system. (j)activities of the military or naval forces, or Any claim arising out of the combatant the Coast Guard, during time of war. (k) Any claim arising in a foreign country. (l)the Tennessee Valley Authority. Any claim arising from the activities of (m) the Panama Canal Company. Any claim arising from the activities of (n) a [f]ederal land bank, a [f]ederal intermedi- Any claim arising from the activities of ate credit bank, or a bank for cooperatives. Id. establishment of governmental tort liability with an emphasis on the often- tort liability with an establishment of governmental exception and another between exceptions or between an complex interplay a description of the The article begins by setting forth part of the FTCA. of Congress’s ra- exceptions, including consideration FTCA and its many of them. The arti- (and subsequently modifying) some tionales for enacting courts have applied certain of the cle also reviews ways in which exceptions—especially tort” exception—over the “intentional the years. of intentional infliction of emotional Particular attention is given to the tort recognized when the FTCA was origi- distress (IIED). IIED was not widely considered IIED claims to be barred nally passed, and some early decisions for assault and battery. More recently, by the statute’s exclusion of claims claim may be brought under the FTCA courts have recognized that an IIED for other claims that would fall so long as it is not really a clever substitute within one of the statutory exceptions—a line that is often quite difficult to draw. 376 and definitions of the are products or in the FTCA elsewhere are found of the statute. general scope under the in a lawsuit brought the central issue frequently becomes ceptions incorporation reference to and FTCA’s general the FTCA. Notwithstanding of the statute’s ex- and applicability of any of state law, the interpretation of federal law. ceptions are matters \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 2 11-MAY-12 11:23 the courts point in an FTCA may raise them at any tional and the government lawsuit. excludes liability on the part of government contractors). military personnel arising out of activity incident to military service). States for on-the-job injuries). U.S. 521, 528 (1973); United States v. Neustadt, 366 U.S. 696, 705–06 (1961). 31446-ust_8-3 Sheet No. 44 Side B 05/11/2012 16:54:17 B 05/11/2012 44 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 45 Side A 05/11/2012 16:54:17 10 377 8 Title VII and Sex- XCEPTIONS 11 299 (1991) (proposing a E Dalehite v. United States, 346 Indeed, Congress never (citing 1954–55 legislative his- 12 EMINISM Susan M. Mathews, see also Hearings Before the Comm. on the Judici- CT AND ITS see also id. Limitations of Action Under the FTCA: A J.L. & F A ALE pp. 390–97 of case law (discussing development . 1, 2 (1991) (noting that the FTCA encompasses a . 1, 2 (1991) (noting that the FTCA encompasses LAIM See generally , 3 Y EGIS C L ON ORT see also infra T . J. , 77th Cong. 66 (1942); ARV EDERAL , 28 H F HE , H.R. Rep. No. 76-2428, at 5 (1940); , Laird v. Nelms, 406 U.S. 797, 802 (1972) (rejecting claim for damages to home EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS Kent Sinclair & Charles A. Szypszak, By its terms, however, the statute reaches further than garden the statute reaches further By its terms, however, Thompson v. Deal, 92 F.2d 478, 491 (D.C. Cir. 1937) (Stephens, J., dissenting) 9 I. T See See, e.g. See See, e.g. Whatever one might think of them, the FTCA’s exceptions underscore Whatever one might think of them, Originally passed in 1946, the FTCA exposes the United States to po- the United States the FTCA exposes passed in 1946, Originally or death caused or personal injury or loss of property, for injury employee of wrongful act or omission of any by the negligent or his office or while acting within the scope of the Government States, if a circumstances where the United employment, under with be liable to the claimant in accordance private person, would where the act or omission occurred. the law of the place 8. 28 U.S.C. § 1346(b)(1) (2006). 9. 12. 11. 10. M K particularly where the government is concerned. particularly where the government such as strict liability for ultra-hazardous governmental activity—thatsuch as strict liability for ultra-hazardous the (“[T]he maxim ‘equity will not suffer a wrong to be without a remedy’ is not safely to be followed in respect of a wrong asserted to have been imposed by the Government.”). new “tort of sexual harassment”); tory and private relief bill passed in connection with the decision rejecting liability in the Texas tory and private relief bill passed in connection with the decision rejecting liability in the City disaster case, Dalehite v. United States, 346 U.S. 15 (1953)). addressing applicability to tort of intentional infliction of emotional distress). in connection with sonic booms; “Liability of this type under the [FTCA] is not to be broadened beyond the intent of Congress by dressing up the substance of strict liability for ultrahazardous activities in the garments of common-law trespass.”); variety of “complex, attenuated, and unperceived conduct”). This raises the interesting question of variety of “complex, attenuated, and unperceived torts that may not have existed when this whether the FTCA rightly applies to newly-created waiver of sovereign immunity was enacted. ual Harassment: Beyond Damages Control ary on H.R. 5373 and H.R. 6463 U.S. 15, 28 (1953) (noting car accident cases as “uppermost” in Congress’s mind at time of FTCA U.S. 15, 28 (1953) (noting car accident cases 692, 707 n.4 (2004). passage); Sosa v. Alvarez-Machain, 542 U.S. Synthesis and Proposal In enacting the FTCA, Congress was principally concerned with addressing Congress was principally concerned In enacting the FTCA, torts—the “garden variety” negligence what might be considered most involving government cited at the time being accidents prominent example vehicles. substantial categories of tort liability—On the other hand, there are also does not reach. FTCA’s waiver of sovereign immunity provide a remedy for every wrong—the principle that the law does not 2011] A. The FTCA court liability in federal tential civil \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 3 11-MAY-12 11:23 variety negligence torts and applies to a broad array of factual situations. torts and applies to a broad array variety negligence intended the FTCA as a comprehensive waiver of governmental immunity intended the FTCA as a comprehensive for fairness and equity in favor of ag- from tort liability. While a concern legislators, that concern had to be bal- grieved plaintiffs certainly motivated only impetus behind the FTCA. anced against others and was not the C Y 31446-ust_8-3 Sheet No. 45 Side A 05/11/2012 16:54:17 A 05/11/2012 45 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 45 Side B 05/11/2012 16:54:17 , M K — C Y 13 TATIS- S [Vol. 8:3 Despite this 16 Bailor v. Salva- ONGRESSIONAL In 17 Private Bills and Private Laws , www.senate.gov/legislative/com- ., 96-727-C, C situation subsequent to Seventh Circuit Congressional Settlement of Tort Claims ENATE ERV S L.J. 534, 535 (1947) (noting that passage of More recently, in 2005, Congress Bailor 19 A private bill deals with one or more A private bill deals ALE , U.S. S , 1947–2003, at CRS-2 to -3 (2004) (noting the 14 . 1, 31 (1955) (noting the “seeming success of the . 1, 31 (1955) (noting the “seeming success ESEARCH EV . R , 56 Y for example, the Seventh Circuit in 1995 for example, the Seventh Circuit NACTED 15 18 ONG , . L. R E , C AWS OLUM L H.R. 1328, 109th Cong. (2005); H.R. Res. 201, 109th Cong. (2005) ANNING , 55 C E. M see also Legislation, Laws, and Acts , , 346 U.S. at 24–25 (1953). UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY ENNIFER . J. 87, 91–94 (2007) (noting same trend and offering explanations). NTRODUCED AND J I at 686; TICS IBR Id. See Dalehite See The Federal Tort Claims Act See, e.g. L ILLS The number of private bills has greatly declined over the past half- The number of private bills has greatly The FTCA was enacted as one part of a broader legislative “house- legislative a broader part of as one enacted FTCA was The AW : B 18. 51 F.3d 678 (7th Cir. 1995). 19. 16. 15. 17. 13. Ch. 753, 60 Stat. 812 (1946). 14. whereby Congress removed from itself (or at least greatly reduced) certain at least greatly reduced) from itself (or Congress removed whereby (introducing private bill and resolution to address ruling). mon/briefing/leg_laws_acts.htm (last visited Dec. 21, 2011) (“A private bill provides benefits to mon/briefing/leg_laws_acts.htm (last visited Dec. 21, 2011) (“A private bill provides benefits through specified individuals (including corporate bodies). Individuals sometimes request relief private legislation when administrative or legal remedies are exhausted.”). Federal Tort Claims Act in reducing the volume of tort claims submitted to Congress for settle- Federal Tort Claims Act in reducing the volume docket remains jammed”). ment,” though also observing that the “legislative 99 L decline in private bills; listing enactment of 1103 such bills by the 81st Congress in 1949–50,decline in private bills; listing enactment of 1103 492 by the 86th in 1959–60,the 91st in 1969–70, 246 by 123 by the 96th in 1979–80, 16 by the 101st in 1989–90, in 1999–2000); and 24 by the 106th Matthew Mantel, the FTCA was in part motivated by the fact that Congress was “burdened by thousands of claim the FTCA was in part motivated by the fact Lauer, bills at every session”); Walter Gellhorn & Louis Against the United States century, at least partly as a result of the FTCA’s passage. century, at least partly as a result 378 measure—thekeeping” 1946 Act of Reorganization Legislative \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 4 11-MAY-12 11:23 upheld the denial of relief under existing law to a plaintiff who was raped upheld the denial of relief under existing and alleged, among other claims, that by an escapee from a halfway house had negligently placed the escapee at the United States Bureau of Prisons claim, the court also observed that the halfway house. In denying the FTCA in appropriate cases, be an inappropriate “private legislation . . . would not, response” to certain unfair situations. named individuals or entities, often providing benefits in response to a spe- or entities, often providing benefits named individuals claims. The Supreme area such as immigration or private cific request in an of private bills as a to Congress’s pre-FTCA handling Court has referred process. “notoriously clumsy” decline, however, private bills today are far from dead. decline, however, private bills today tion Army and United States time-consuming administrative responsibilities. As a result of the dramatic As a result of responsibilities. administrative time-consuming the Great in connection with of government the size and scope change in it had be- reforms generally, and Roosevelt-era World War II, Depression, to cope with its vastly modernize the national legislature come necessary to duty alleviated by One long-standing Congressional increased workload. bills,” which until Act was the consideration of “private the Reorganization citizens to recover essentially the only way for injured that point had been employees act- for tortious conduct by government from the United States of employment. ing within the scope 31446-ust_8-3 Sheet No. 45 Side B 05/11/2012 16:54:17 B 05/11/2012 45 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 46 Side A 05/11/2012 16:54:17 23 379 set 21 For these rea- Developments in the . 827, 891–92 (1957) 24 EV . L. R ARV , 70 H These examples illustrate that, illustrate These examples 20 note 14, at 542. supra , at 547 (noting that this “sweeping exception imposes a hardship upon claim- —of these is the so-called “intentional tort exception.” At 28 id. , 22 EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS 28 U.S.C. § 2680(h) (2006). Act of Mar. 21, 2005, Pub. L. No. 109-3, 119 Stat. 15 (enacting a law “For the relief Act of Mar. 21, 2005, Pub. L. No. 109-3, 119 See See, e.g. The Federal Tort Claims Act See As noted, there are several sources of exceptions from the FTCA’s several sources of exceptions As noted, there are 1. Exceptions Listed in 28 U.S.C. § 2680 worded exceptions” The FTCA contains a number of “carefully 23. 24. Staheli v. Smith, 548 So.2d 1299, 1305 (Miss. 1989) (“Under Mississippi defamation 22. 21. 20. M K (suggesting that the exception of certain intentional torts from FTCA liability “should be reas- (suggesting that the exception of certain intentional torts from FTCA liability “should be sessed by Congress”). law, libel is not necessarily an intentional tort.”); Malvo v. J.C. Penney Co., 512 P.2d 575, 583 law, libel is not necessarily an intentional tort.”); Malvo v. J.C. Penney Co., 512 P.2d 575, n.13 (Alaska 1973) (noting that “slander is not necessarily an intentional tort”). Law: Remedies Against the United States and its Officials ants and leaves open one fruitful source of private claim bills,” and expressing the view that ants and leaves open one fruitful source of private claim bills,” and expressing the view Congress’s stated reasons for including the exception seem “insufficient”); of the parents of Theresa [“Terry”] Marie Schiavo”). Notably, at least four intentional torts are not included in this list: trespass, Notably, at least four intentional torts intentional infliction of emotional dis- conversion, invasion of privacy, and clear its intent to exclude only a subset tress. Accordingly, Congress made of the FTCA as the statute (a) does not of intentional torts from the scope (b) fails to include all intentional torts contain the term “intentional torts”; at §in the list of excluded causes of action 2680(h); and (c) excludes some always be intentional. torts that courts have held need not 2011] to bring Schiavo of Terry parents the law enabling a quasi-private passed water, and withholding of food, challenging the federal court suit in Florida daughter. attention from their medical \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 5 11-MAY-12 11:23 U.S.C. § FTCA expressly excludes from its scope any claim 2680(h), the torts: assault or battery; false imprison- “arising out of” eleven categories of or abuse of process; libel or ment or false arrest; malicious prosecution and interference with contract rights. slander; misrepresentation or deceit; forth in a list found at 28 U.S.C. § 2680. One of the more fascinating—and controversial (and this article will use it), it is sons, although the term has persisted while by no means easy or commonplace, it remains possible to obtain pri- remains possible commonplace, it no means easy or while by relief today—avate legislative in not be forgotten possibility that should and its scope. of the FTCA discussions B. Liability Exceptions to FTCA the United States. This immunity for tort claims against waiver of sovereign expressly listed in begins by looking at the exceptions section of the article 28 U.S.C. § given to other exceptions built into 2680. Consideration is then as some of the excep- textual scope of the FTCA, as well the definitions and other federal laws that directly from the FTCA but from tions that arise not remedies. by creating their own exclusive preclude FTCA recovery C Y 31446-ust_8-3 Sheet No. 46 Side A 05/11/2012 16:54:17 A 05/11/2012 46 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 46 Side B 05/11/2012 16:54:17 M K 29 C Y [Vol. 8:3 35 In 1950, this 31 The FTCA also The FTCA 26 note 14, at 546 & n.80 or any federal land note 14, at 546 (“No satis- 34 supra doctrine, which bars all doctrine, which , supra , note 14, at 546 & n.81 (stating that Feres supra and claims “arising out of the and claims “arising , 30 claims “arising in respect of the assess- claims “arising in 27 Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220 (2008) Ali v. Fed. Bureau of Prisons, 552 U.S. 214, creating the 32 , see also ; see The Federal Tort Claims Act the Panama Canal Company; see The Federal Tort Claims Act 33 25 claims alleging damages caused by a quarantine; claims alleging See id. 28 see The Federal Tort Claims Act , Limone v. United States, 579 F.3d 79, 92 (1st Cir. 2009) (noting that courts , Limone v. United States, 579 F.3d 79, 92 UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY 28 U.S.C. § claims “based upon the exercise or performance or 2680(a) (prohibiting § 2680(b); § contains an exception to the exception for claims based on 2680(c). This provision § 2680(m). § 2680(n). See Id. Id. See, e.g. Id. Id. Feres v. United States Other exceptions in 28 U.S.C. § in 28 U.S.C. Other exceptions the prohibition against 2680 include 29. 28 U.S.C. § 2680(f); 26. 27. 28. 25. 30. 28 U.S.C. § 2680(i); 31. 28 U.S.C. § 2680(j). 32. 340 U.S. 135 (1950). 33. 28 U.S.C. § 2680(l). 34. 35. (reading “any other law enforcement officer” expansively to include “law enforcement officers of (reading “any other law enforcement officer” whatever kind”). “sometimes have referred loosely to section 2680(h) as an ‘intentional torts’ exception” even “sometimes have referred loosely to section government’s immunity with respect to claims though “the provision only preserves the federal omitted)). arising out of certain enumerated torts” (citations function or duty” and claims “based upon an act the failure to exercise or perform a discretionary exercising due care, in the execution of a statute or omission of an employee of the Government, or regulation”). this exception is “based on the number of cases which might arise were it not included,” as well as this exception is “based on the number of cases “the ease with which postal matter may be insured”). property” while in government possession under “injury or loss of goods, merchandise, or other specified circumstances. claims for “damages caused by the fiscal operations of the Treasury or by caused by the fiscal operations claims for “damages the monetary system”; the regulation of 380 is some- tort exception” label “intentional that the acknowledged widely a misnomer. thing of and the a statute or regulation the validity of FTCA to challenge using the in § both found exception, discretionary-function 2680(a). \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 6 11-MAY-12 11:23 ment or collection of any tax or customs duty, or the detention of any of any tax or customs duty, or ment or collection or other law en- or other property” by any customs goods, merchandise, forcement officer; factory explanation for the quarantine provision has been given,” although it was “once described factory explanation for the quarantine provision as ‘dangerous’” (quoting FTCA legislative history)). combatant activities of the military . . . during time of war.” of the military . . . during time of combatant activities incident to mili- military personnel arising out of activity FTCA claims by tary service—regardless activity occurred during a time of of whether the arising from the activities of the Tennes- war. Section 2680 also bars claims see Valley Authority; (noting that Congress “presumably felt that the liability would be too immense and the damages too widespread to justify any allowance of claims” pertaining to the monetary system, although the “explanations given for these provisions are often ambiguous or inconclusive”). bank, federal intermediate credit bank, or bank for cooperatives. bank, federal intermediate credit bank, prohibits claims “arising out of the loss, miscarriage, or negligent transmis- or negligent of the loss, miscarriage, claims “arising out prohibits postal matter”; sion of letters or latter exception was significantly expanded when the Supreme Court de- significantly expanded when the latter exception was cided 31446-ust_8-3 Sheet No. 46 Side B 05/11/2012 16:54:17 B 05/11/2012 46 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 47 Side A 05/11/2012 16:54:17 381 43 Mitchell v. Horn, 318 F.3d 523, 533 (3d Cir. 2003). see also Another provision in the jurisdictional grant ex- Another provision Simply put, the FTCA imposes damages liability Simply put, the FTCA imposes damages 38 37 41 and later found no liability for the negligence of a and later found Thus, courts have found that wherever the term “fed- Thus, courts have found that wherever 39 42 40 does not extend to strict-liability torts, notwithstanding the torts, notwithstanding extend to strict-liability does not 36 EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS § 2680(e) (referencing 50 U.S.C. Appendix, sections 1–31). Laird v. Nelms, 406 U.S. 797, 803 (1972); Dalehite v. United States, 346 U.S. 15, 28 U.S.C. § 2680(d) (2006) (referencing 46 U.S.C. § 745 ch. 309, 311). 28 U.S.C. § 1346(b) (2006). 28 U.S.C. § 2671 (2006). United States v. Orleans, 425 U.S. 807, 814–15 (1976); Carroll v. United States, 661 See id. See See See See Id. See Relatedly, numerous other federal statutes either prohibit or provide Relatedly, numerous other federal and claims arising from administration of the Trading with the Enemy and claims arising from administration 3. Federal Exclusivity Statutes from FTCA liability involves fed- Yet another category of exceptions Courts have likewise found FTCA claims to be barred on the ground found FTCA claims to be barred Courts have likewise the FTCA’s definitions of “em- The “contractor exception” arises from 2. Scope Definitions and Based on Statutory Exceptions of the and scope inherent in the structure exceptions are Additional 45 44 45. 44. 36. 37. 38. 28 U.S.C. § 1346(b)(2); 39. Jones v. Hadican, 552 F.2d 249, 251 n.4 (8th Cir. 1977). 40. Charlima, Inc. v. United States, 873 F.2d 1078, 1081–82 (8th Cir. 1989). 41. 42. 43. M K F.3d 87, 92, 105 (1st Cir. 2011). 44–45 (1953). eral exclusivity statutes. For example, the language of the FTCA itself ex- eral exclusivity statutes. For example, Suits in Admiralty Act or Public Vessels cludes claims cognizable under the Act that the alleged tortfeasor was not an “employee of the Government.” For was not an “employee of that the alleged tortfeasor cannot apply to a Circuit in 1977 held that the FTCA example, the Eighth defendant in a federal by the court to represent a private attorney appointed criminal prosecution ployee” and “agency.” 2011] portions. statute’s definitional including the sovereign immunity, waiver of FTCA’s juris- example, that the held, for Court has repeatedly The Supreme grant dictional \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 7 11-MAY-12 11:23 eral agency” appears in the FTCA, Congress meant it to refer solely to eral agency” appears in the FTCA, Government. official components of the Federal Act. recovery against the government their own single mechanism for potential would otherwise be cognizable under and thus indirectly prevent claims that fact that the statute nowhere expressly excludes or otherwise mentions or otherwise expressly excludes the statute nowhere fact that strict-liability concepts. or employees of any federal agency” only for torts committed by “officers to “not include any contractor with and expressly defines “federal agency” the United States.” private person who was acting as a federally designated “Airworthiness private person who was acting as Representative.” pressly precludes convicted prisoners from suing the United States “for convicted prisoners from suing pressly precludes without a prior show- injury suffered while in custody mental or emotional ing of physical injury.” C Y 31446-ust_8-3 Sheet No. 47 Side A 05/11/2012 16:54:17 A 05/11/2012 47 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 47 Side B 05/11/2012 16:54:17 M K 56 C Y [Vol. 8:3 was a wrong- While this may 52 Smith and foreign airspace. the Federal Employees’ the Federal 55 46 the Federal Water Pollution Control Water Pollution the Federal note 14, at 548 & n.95 (citing FTCA legislative 47 49 the Supreme Court directly addressed supra military bases, 57 , , 54 50 This provision was enacted primarily to protect against This provision was enacted primarily 51 UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY and the Flood Act, which immunizes the government from any which immunizes the government and the Flood Act, Meredith v. United States, 330 F.2d 9, 11 (9th Cir. 1964). Straneri v. United States, 77 F. Supp. 240 (E.D. Pa. 1948). United States v. Spelar, 338 U.S. 217, 221 (1949). Pignataro v. United States, 172 F. Supp. 151, 152 (E.D. N.Y. 1959). 42 U.S.C. § 405(h) (2006). 5 U.S.C. § 8116(c) 200. 33 U.S.C. § 1321(i) (2006). 33 U.S.C. § 702c (2006). Premachandra v. United States, 739 F.2d 392, 394 (8th Cir. 1984). wartime acquisitions, 48 at 201. Smith v. United States the difficulties of choice of law and venue that would arise if the difficulties of choice of law 53 See See See See Id. See See See See See See The Federal Tort Claims Act 58 In 4. The Foreign Country Exception bars “[a]ny claim arising in a The FTCA’s “foreign country” exception Beyond the many statutes that expressly preclude FTCA liability, cer- statutes that expressly preclude FTCA Beyond the many 53. 54. 55. 56. 57. 507 U.S. 197 (1993). 58. 46. 47. 48. 49. 50. 51. 28 U.S.C. § 2680(k). 52. history). foreign country.” 382 Security Social the includes of such statutes small sampling A the FTCA. wrongs per- remedies for provide the exclusive Acts, which and Medicare of these programs; the administration taining to to embody implied remedial schemes have been found tain comprehensive is the remedies FTCA liability. One such scheme restrictions preempting civil service system, to federal employees through the already available of negligent termi- Circuit in 1984 held preempted claims which the Eighth promote. nation or failure to \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 8 11-MAY-12 11:23 liability arising from flood control. liability arising from the specter of Americans being subjected to foreign law. the specter of Americans being subjected ful death case in which the plaintiff alleged that the government negligently ful death case in which the plaintiff dangerous conditions present in Ant- failed to warn her late husband of the opinion considered multiple factors—in-arctica. The eight-Justice majority of “country” as “a region or tract of cluding the dictionary definition land”; whether an FTCA claim can arise from a tort occurring on the sovereignless whether an FTCA claim can arise from continent of Antarctica—whereis no foreign law. there Compensation Act (FECA), which bars federal employees from suing the employees from which bars federal Act (FECA), Compensation injuries; for on-the-job United States in cleaning up incurred remedy for expenses the exclusive Act, providing oil spills; no definition of “foreign coun- seem straightforward, the statute contains has given rise to such questions as try,” and over the years, the provision conduct occurring at American em- whether FTCA claims may arise from bassies, 31446-ust_8-3 Sheet No. 47 Side B 05/11/2012 16:54:17 B 05/11/2012 47 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 48 Side A 05/11/2012 16:54:17 , 61 383 517, 60 OMMERCE This is Ground & C AW unanimously re- L 64 IR and the general presump- the general and , 63 J. A 59 63 and lower court rulings to date seem to and lower court rulings 62 Understanding Congress’s rationale here Understanding Congress’s rationale . 457, 482 (2005) (noting that “the fact that the Columbia . 457, 482 (2005) (noting that “the fact that the 67 Sosa v. Alvarez-Machain EV decision “appears to exclude outer space from consideration “To the Stars, Despite Adversity”: Liability for the Columbia “To the Stars, Despite Adversity”: Liability Accordingly, the Court held that the foreign Accordingly, the Court held that . L. R 65 Smith OUS decision left open the question of whether the FTCA of whether left open the question decision Sheridan v. United States, 487 U.S. 392, 403 (1988) (observing that it , 42 H Smith , Marcy Darsey, , Hughes Aircraft Co. v. United States, 29 Fed. Cl. 197, 231 (1993). at 205–06 (Stevens, J., dissenting) (providing that denial of claims in the “sover- EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS see also at 204–05. 66 at 710. at 712. at 202–03. Id. Id. See Developments in the Law: Remedies Against the United States and its Officials See, e.g. See id. See, e.g. Id. See id. The Supreme Court in The Supreme Court tort” exception, many have Turning specifically to the “intentional While the While the note 22; 64. 542 U.S. 692 (2004). 65. 66. 67. 63. 61. 62. 59. 60. M K supra 535 (1998) (observing that the for FTCA coverage”). may have disintegrated while in the sovereignless region of outer space appears to bar an FTCA may have disintegrated while in the sovereignless Lauren S.B. Bornemann, suit against the government for NASA’s negligence.”); Control to Major Tom . . . Your Wife Would Like to Sue but There’s Nothing We Can Do . . . The Control to Major Tom . . . Your Wife Would Like to Sue but There’s Nothing We Can Do States Unlikelihood that the FTCA Waives Sovereign Immunity for Torts Committed by United Employees in Outer Space: A Call for Preemptive Legislation Space Shuttle Tragedy eignless region” of Antarctica parallels the denial of claims arising in outer space). eignless region” of Antarctica parallels the denial C. Tort” Exception Rationale Behind the “Intentional to allow recovery based on negligence asked why Congress would choose torts—whichwhile barring recovery for most intentional presumably re- government employees and can cer- present more egregious conduct by tainly lead to similar harms. 2011] land”; in “no-man’s could arise claims FTCA seem to agree, Most commentators \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 9 11-MAY-12 11:23 country exception applies to “all claims based on any injury suffered in a country exception applies to “all claims where the tortious act or omission foreign country, regardless of occurred.” the FTCA’s 28-year legislative his- presents particular challenges because applies to tort claims arising in outer space, Justice Stevens in dissent arising in outer space, Justice applies to tort claims of such claims. would lead inevitably to denial warned that the ruling tions against both waivers of sovereign immunity and the extraterritorial and the of sovereign immunity both waivers tions against Congressional statutes—andreach of country” that the “foreign concluded States gen- and thus, the United to Antarctica, does indeed apply exception on that continent. tort for claims arising not be sued in erally may prediction. bear out Justice Stevens’s courts of appeals had doctrine,” whereby several jected the “headquarters in foreign countries government liable for torts occurring found the federal employees was planned or directed by government if the wrongdoing opened the door States. The Court found that this theory within the United intended to protect sort of claims from which Congress too far to the very the federal government. C Y 31446-ust_8-3 Sheet No. 48 Side A 05/11/2012 16:54:17 A 05/11/2012 48 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 48 Side B 05/11/2012 16:54:17 M K 69 C Y and 68 [Vol. 8:3 71 these torts being included. without , 72d Cong. 4 (1932). see also General Tort Bill: Hearing on H.R. 5065 , 76th Cong. 22 (3d Sess. 1940) (quoted in Sheridan v. United , 76th Cong. 13 (3d Sess. 1940) (Memorandum by the Dept. of Justice for UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY 70 at 39 (statement of Alexander Holtzoff, special assistant to the Att’y. Gen. of the Tort Claims Against the United States: Hearings on S. 2690 Before a Subcomm. of the Id. Tort Claims Against the United States: Hearings on H.R. 7236 Before Subcomm. No. 1 of A few themes emerge from these passages. First, there was a sentiment A few themes emerge from these passages. torts from the FTCA was viewed Second, excluding these intentional Before the House Judiciary Subcommittee later in 1940, Special Assis- Judiciary Subcommittee later in 1940, Before the House that, since this bill is a radical [t]he theory of these exemptions is it step by step and exempt innovation, perhaps we had better take might give rise to tort certain torts and certain actions which or in respect to which it claims that would be difficult to defend, liable. would be unjust to make the Government a type of torts which would be difficult to make a defense against, would be difficult to make a defense a type of torts which it seemed to exaggerated. For that reason and which are easily those this bill that it would be safe to exclude those who framed of private those should be settled on the basis types of torts, and acts. A 1939 Department of Justice memorandum included in the committee memorandum of Justice A 1939 Department 69. 70. 71. 68. S. 211, 72d Cong. § 206 (1931); Before a Subcomm. of the H. Comm. on Claims Comm. on the Judiciary the Att’y Gen. (June 7, 1939)). United States). the H. Comm. on the Judiciary States, 487 U.S. at 410 (O’Connor, J., dissenting)). “would be odd to assume that Congress intended” to create liability for a breach of duty when a “would be odd to assume that Congress intended” person causing harm “was merely negligent but not when he or she was malicious”). that exposing the public fisc to potential liability for assault, battery, and that exposing the public fisc to potential based on the notion that these torts other listed torts would be “dangerous,” and difficult to defend against. are both easy for plaintiffs to exaggerate by stating that it would be “unjust” to Indeed, this reasoning was expressed torts. make the government liable for these as “safe”—at or until “considerable experience” least “for the time being” could be had under the FTCA generally tant to the Attorney General Mr. Holtzoff further explained that tant to the Attorney General Mr. Holtzoff 384 Nonethe- exception. intentional-tort on the scant commentary contains tory 1931, in the bill in first appeared clear that the exception less, it is that claims aris- concept, the committee report observed Elaborating on this battery, and the like constitute ing out of assault, \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 10 11-MAY-12 11:23 Thus, in passing the “intentional tort” exception, Congress took a “wait and Thus, in passing the “intentional tort” the scope of liability under the FTCA. see” or “step by step” approach to several interrelated reasons for the exception were offered during a Senate were offered during for the exception reasons several interrelated 1940. in March of subcommittee hearing Judiciary for the it may be dangerous time being at least, that, “for the report stated “until in any event itself to suit” from these torts, Government to subject legislation.” has been had under the proposed considerable experience 31446-ust_8-3 Sheet No. 48 Side B 05/11/2012 16:54:17 B 05/11/2012 48 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 49 Side A 05/11/2012 16:54:17 385 The provision is 75 from the legislature to from the 72 note 14, at 554 (articulating view that, in decid- 74 supra , Pub. L. No. 91-623, § 4, 84 Stat. 1868, 1870–71 (1970). See By indicating an ongoing willingness to entertain pri- willingness to entertain an ongoing By indicating 73 . art. I, § 8. EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS ONST Another example of the “step by step approach” is reflected in the Emergency Health Id. See The Federal Tort Claims Act According to this proviso, tort claims in these categories may be According to this proviso, tort claims The final theme that emerges is the assumption that claims arising that claims is the assumption emerges that final theme The To some extent the proposed “step by step” approach came to fruition, proposed “step by step” approach To some extent the Exceptions 72. U.S. C 73. 75. 28 U.S.C. § 2680(h) (2006). 74. M K brought based on “acts or omissions of investigative or law enforcement brought based on “acts or omissions defined as “any officer of the officers of the United States Government,” law to execute searches, to seize evi- United States who is empowered by of Federal law.” dence, or to make arrests for violations 2011] the basis of be “settled on torts could and would of the excluded under any do in 1946 by intended to of what Congress This is a reminder private acts.” the FTCA—transferenacting the authority concerning decision-making of the United States” of certain “[d]ebts payment \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 11 11-MAY-12 11:23 vate bills for excepted torts, Congress made clear that this transfer was not torts, Congress made clear that vate bills for excepted meant to be complete. D. of) the Proviso”: An Exception to (Some The “Law Enforcement of sovereign im- has expanded the scope of the waiver insofar as Congress example, the “inten- FTCA’s original passage. Today, for munity since the that constitutes contains a “law enforcement proviso” tional tort” exception an “exception to the exceptions”—atleast as to some of the otherwise ex- outcry over certain widely publicized cepted torts. In response to a national 1970s, Congress amended §law enforcement excesses in the early 2680(h) liability by effectively contracting the in 1974 to expand the scope of FTCA scope of the intentional tort exception—although only as to torts committed employees. As a result of the law by a defined subcategory of government permits suits based on tortious con- enforcement proviso, the FTCA now for six of the eleven otherwise- duct by federal law enforcement officers imprisonment, false arrest, abuse of excluded torts: assault, battery, false process, and malicious prosecution. ing FTCA claims, courts are acting as an “arm of the legislative department of the Government”). to Personnel Act of 1970, which made the FTCA’s assault and battery exception inapplicable in the claims arising out of negligence of a commissioned officer of the Public Health Service performance of medical functions. the federal courts. the federal thus doubly limited insofar as claims pursuant to only a limited subset of thus doubly limited insofar as claims may be brought based only on conduct otherwise-excluded intentional torts Nonetheless, claims arising under by a limited subset of federal officials. referred to as “proviso torts,” this “exception to the exception,” sometimes have greatly shifted the FTCA litigation landscape. C Y 31446-ust_8-3 Sheet No. 49 Side A 05/11/2012 16:54:17 A 05/11/2012 49 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 49 Side B 05/11/2012 16:54:17 M K at C Y In Id. 76 listed Sheridan is [Vol. 8:3 80 had “assumed” Sheridan listed as barred by 2680(h), Sheehan v. United States, 896 F.2d and observed that “[t]here is and observed that A brief look at some of the A brief look at some 77 78 not see also the Supreme Court held that such 79 , at 402–03 & nn. 6–8. Id. UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY at 708 (quoting Indian Towing Co. v. United States, 350 U.S. 61, 68 (1955)). at 403 n.8. Both the district court and the court of appeals in Sheridan v. United States Id. Id. Considerable judicial energy has been devoted to discerning the to discerning has been devoted judicial energy Considerable 1. Proviso Torts question whether, when an assault Courts have frequently faced the In 77. United States v. Neustadt, 366 U.S. 696, 707 (1961). 78. 79. 487 U.S. 392 (1988). 80. 76. Block v. Neal, 460 U.S. 289, 296 (1983); that the complaint stated a claim of some sort under Maryland law based on negligence by govern- that the complaint stated a claim of some sort under Maryland law based on negligence by ment employees at a Naval base who allowed the allegedly foreseeable shooting to occur. 401–02. wanting to second-guess this assumption, remanded the case for The Supreme Court, not further consideration of liability. Given the nature of the plaintiff’s legal theory, the impos- Court observed that the shooter’s employment status had “nothing to do with the basis for ing liability on the Government.” 1168, 1170 (9th Cir. 1990). 386 E. the Exceptions Decisions Applying Some Court torts—as and non-excepted between excepted boundary to the ques- well as are present in of both sorts interrelated claims to proceed when tion of how to the “tradi- by looking begin the inquiry In general, courts a single case. have been under- of alleged torts “as [they] would tional legal definition” was enacted.” when the Tort Claims Act stood by Congress \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 12 11-MAY-12 11:23 claims may be viable in some circumstances. The facts there involved an claims may be viable in some circumstances. scope of a federal employee’s official intentional tort committed outside the down a public street by an intoxicated, duty (specifically, rifle shots fired left open the question of whether negli- off-duty serviceman), and the Court claims can ever arise under the FTCA gent hiring, training, or supervision by a Government employee.” “for a foreseeable assault or battery cases addressing proviso torts and the misrepresentation exception follows. torts and the misrepresentation cases addressing proviso intentional tort) has occurred in a non- and battery (or any other excluded raise an FTCA claim based on proviso context, plaintiffs may nonetheless claims against the government have an indirect theory of liability. Such of the tortfeasor, or some other involved negligent hiring or supervision that is “independent” negligence-based tort nothing in the Tort Claims Act which shows that Congress intended to draw Claims Act which shows that Congress nothing in the Tort incapable of being and capricious as to be almost distinctions so finespun for adequate formulation.” held in the mind underlying intentional tort that even though factually related to the characterizing tort claim allegations, the Supreme Court has cautioned claim allegations, the Supreme characterizing tort tort definitions that Congress was unaware of established against “assuming Tort Claims Act in 1946” when it enacted the as barred. 31446-ust_8-3 Sheet No. 49 Side B 05/11/2012 16:54:17 B 05/11/2012 49 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 50 Side A 05/11/2012 16:54:17 387 Block v. , the Court and 85 88 the plaintiff alleged the plaintiff Neustadt 81 , Thus, at least when misrep- Quoting the 1940 legislative Quoting the 1940 90 84 to have addressed the issue in holding addressed the issue to have lower courts answer this question in the question answer this courts lower 83 United States v. Neustadt , 76th Cong. 39 (1940)). Two key Supreme Court decisions relevant to Two key Supreme Court decisions 87 Sheridan Billingsley v. United States Billingsley , 460 U.S. at 297. Neal 251 F.3d at 698. Tort Claims Against the United States: Hearings on S. 2690 Before a Sub- In remanding for factual findings, the Eighth Circuit joined findings, the Eighth for factual In remanding , 366 U.S. at 703 (quoting Hall v. United States, 274 F.2d 69, 71 (10th Cir. , McNeily v. United States, 6 F.3d 343, 349 (5th Cir. 1993). 91 at 706; EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS 82 Brock v. United States, 64 F.3d 1421, 1425 (9th Cir. 1995) (holding that the assault Brock v. United States, 64 F.3d 1421, 1425 (9th and have also found that it encompasses negligent as well as in- and have also found that it encompasses (quoting at 697. 86 Id. See, e.g. Id. Neustadt See id. See Billingsley, Id. See —arose in the misrepresentation context. Among other important 2. Misrepresentation have repeatedly been raised In addition to the proviso torts, questions The majority of post- majority The 89 85. 86. 87. United States v. Neustadt, 366 U.S. 696, 704 (1961). 88. 89. 460 U.S. 289 (1983). 90. 91. 84. 81. 251 F.3d 696 (8th Cir. 2001) (per curium). 82. 83. M K comm. of the Comm. of the Judiciary 1959)). and battery exception does not preclude liability for negligent supervision of an employee); Ben- and battery exception does not preclude liability nett v. United States, 803 F.2d 1502, 1504 (9th Cir. 1986). about which claims properly fall within the misrepresentation exception. about which claims properly fall the “fraud and misrepresentation” ex- Some courts have referred to this as ception 2011] \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 13 11-MAY-12 11:23 points, these decisions together stand for the proposition that plaintiffs can- points, these decisions together stand artful pleading. In not circumvent the exceptions by every other circuit but the Ninth circuit but the every other tentional misrepresentation. various FTCA exceptions— that, if the tortfeasor was found to have been acting within the scope of was found to have been acting that, if the tortfeasor supervision of claim would lie based on negligent employment, no FTCA another government actor. the tortfeasor by history, the Eighth Circuit concluded that holding the government vicari- Circuit concluded that holding history, the Eighth “would frustrate solely on the employment relationship ously liable based is to bar suits result- intentional-tort exception, “which the purpose” of the attacks by Government employees.’” ing from ‘deliberate negative. For example, in negative. resentation is at issue, a claim will be barred if the essence of the complaint resentation is at issue, a claim will use due care in obtaining or communi- involves the government’s failure to a plaintiff may try to characterize his cating information, regardless of how or her claim. negligent failure to supervise by the United States Job Corps of an enrollee States Job Corps by the United failure to supervise negligent kicked him a glass bottle and the head with [plaintiff] over who “struck repeatedly.” Neal the language of plaintiffs’ claims stated that it is important to look beyond “to ascertain the real cause of the complaint.” C Y 31446-ust_8-3 Sheet No. 50 Side A 05/11/2012 16:54:17 A 05/11/2012 50 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 50 Side B 05/11/2012 16:54:17 M K 101 C Y , On the [Vol. 8:3 95 The court of 103 was whether the 98 illustrates some of these illustrates 94 102 Dolan v. Postal Service , however, the bar against misrepre- bar against the , however, Neal also considered whether the “postal mat- also considered whether the “postal 723 F. Supp. 2d 1132 (D. Minn. 2010). 97 aff’g While acknowledging that most misrepresenta- Najbar Najbar v. United States Najbar v. 99 The mother confirmed later that day that her son was The mother confirmed 96 100 , 460 U.S. at 298. The United States, for example, cannot shield itself from cannot shield States, for example, The United , 649 F.3d at 869. 92 Neal , UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY , 723 F. Supp. 2d at 1137–38. , 723 F. Supp. 2d at 1136–37. , 723 F. Supp. 2d at 1135. at 1137. at 1133. See id. Najbar Id. Id. Najbar Id. Najbar See Najbar See, e.g. The recent case of The recent The district court in different grounds. The Eighth Circuit affirmed, but on The question for District Judge Patrick Schiltz The question for As the Court made clear in made clear Court As the 93 93. 94. No. 10-3015, 649 F.3d 868 (8th Cir. Aug. 12, 2011) (reh’g and reh’g en banc denied 95. 96. 97. 98.Law. Former Associate Dean and professor at the University of St. Thomas School of 99. 92. 100. 101. 546 U.S. 481 (2006). 102. 103. Nov. 8, 2011 (Bye, J., dissenting)), which reads that FTCA exception narrowly, the court rejected the govern- which reads that FTCA exception complaint did not allege that the letter ment’s argument, concluding that the transmitted. was lost, miscarried, or negligently sentation claims (like the other exceptions) does not preclude other inde- does not preclude other exceptions) claims (like the sentation questions some common they may involve merely because pendent claims fact. of law or 388 \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 14 11-MAY-12 11:23 tion claims arise in the commercial context, the court concluded that noth- tion claims arise in the commercial ing in § any limitation to that subset of claims for 2680(h) suggests misrepresentation. liability simply by adding a misrepresentation to an otherwise actionable to an otherwise a misrepresentation simply by adding liability tort. in fact alive and well but alleged that she was harmed by the incident and but alleged that she was harmed in fact alive and well as a result. entitled to damages ters” exception of § could provide an additional basis for dismissal. 2680(b) decision in Relying on the Supreme Court’s undisputed facts of the case, a letter intended for a soldier serving in Iraq the case, a letter intended for a undisputed facts of a postal stamp returned to the plaintiff mother bearing was erroneously marked “deceased.” plaintiff’s claim based on this unfortunate mistake was actionable under the plaintiff’s claim based on this unfortunate the intentional-tort exclusions. The court FTCA or barred by one or more of may be styled, the but-for cause of held that, regardless of how the claims any injury to the plaintiff—telling mother her son was dead when he the was not—was information, which is central to the the communication of tort of misrepresentation. appeals did not reach the applicability of the misrepresentation exception appeals did not reach the applicability points. Although the plaintiff’s complaint alleged only claims of intentional plaintiff’s complaint alleged only points. Although the per se, and negligent distress, negligence, negligence infliction of emotional them all based distress, the district court dismissed infliction of emotional that they actually sounded in misrepresentation. on the conclusion 31446-ust_8-3 Sheet No. 50 Side B 05/11/2012 16:54:17 B 05/11/2012 50 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 51 Side A 05/11/2012 16:54:17 107 389 As 106 ISTRESS D MOTIONAL E 109 FTCA In general, IIED is a “very nar- 110 § 46 (1965). the Eighth Circuit concluded that re- Circuit concluded the Eighth NFLICTION OF NDER THE 105 ORTS I T OF ) (“IIED”) U ECOND NTENTIONAL (S Although the letter was not lost and the court agreed lost and the court the letter was not Although I 104 , United States v. Hambleton, 185 F.2d 564, 566 (9th Cir. 1950) (noting that , Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 433, 436–38 (Me. 1982) EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS ESTATEMENT LAIMS OF R at 872–73. at 872–73. at 871–72. at 872. The Restatement of Torts first acknowledged the possibility that a The Restatement of Torts first acknowledged See, e.g. See, e.g. See Id. Id. Id. Id. 108 To succeed on a claim of IIED a plaintiff generally must show the To succeed on a claim of IIED a Given the numerous exceptions discussed above, and Congress’s ratio- exceptions discussed above, and Given the numerous IIED was by no means uniformly Although certainly not unheard of, II. C 108. 109. 110. 104. 105. 106. 107. M K plaintiff might recover in tort despite a lack of demonstrable physical injury plaintiff might recover in tort despite passage, and (while some had done so in 1948, two years after the FTCA’s adopted variations of this theory previously) courts in disparate jurisdictions decades. at different times over the subsequent following elements: (1) the defendant acted intentionally or with reckless following elements: (1) the defendant the defendant’s conduct was extreme or disregard of the consequences; (2) severe emotional distress; and (4) the outrageous; (3) the plaintiff suffered defendant’s conduct caused that distress. 2011] the postal under barred claim was that the plaintiff’s it concluded because matters exception. \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 15 11-MAY-12 11:23 it may seem the so-called “intentional tort” exception, nale for enacting distress (other- tort of intentional infliction of emotional surprising that the under the FTCA. The or “outrage”) is actionable wise known as “IIED” review the development and general remainder of this article will briefly and then consider ways in which courts contours of the IIED cause of action of IIED claims brought under FTCA have approached various species auspices. A. Cause of Action The Development of IIED as a Separate the FTCA was originally enacted in or even widely recognized at the time 1946. section 46 of the Restatement of Torts was not “revamped” to include IIED under the “Assault and Battery” chapter until 1948, two years after the FTCA was enacted). (discussing various tests for recovery and holding that only serious mental injury that was foresee- able as a result of witnessing another’s harm from a tortfeasor’s negligent act is compensable); Payton v. Abbott Labs, 437 N.E.2d 171, 174–75 (Mass. 1982). with the district court that the envelope also was not “damaged” by virtue of was not “damaged” the envelope also court that with the district erroneously stamped, having been of mail. a “miscarriage” constituted to the soldier’s mother turning it the court put it, the plaintiff’s alleged harm—while put it, the plaintiff’s the court and of an “uncommon” “idiosyncratic” variety—plainly of the letter being resulted from the fact as to the reason. to her with an injurious explanation mistakenly returned C Y 31446-ust_8-3 Sheet No. 51 Side A 05/11/2012 16:54:17 A 05/11/2012 51 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 51 Side B 05/11/2012 16:54:17 M K 112 C Y EETON see also or the K [Vol. 8:3 Hamble- 113 . 193 (1990); EV 117 see also generally ROSSER AND The court framed ., P 119 L.J. 171, 172, 205 (2000) The Alchemy and Legacy of , 33 A.F. L. R . (BNA) 559 (Sept. 28, 1988). EP OWARD EETON ET AL But it was not always so. In But it was not always L. R K , 43 H IIED has also sometimes served also sometimes IIED has 116 AGE OXICS 114 115 § that IIED requirements 12, at 61 (5th ed. 1984), , 3 T United States v. Hambleton. ORTS T AW OF L Moorenovich, 634 F. Supp. 634, 636 (D. Me. 1986); Ayers v. Township Moorenovich, 634 F. Supp. 634, 636 (D. Me. EETON ON In Fear of Cancerphobia The court observed that mental suffering was the only form The court observed that mental suffering In re , Limone v. United States, 579 F.3d 79, 92–93 (1st Cir. 2009). , , (Tex. Ct. App. 2006) (“IIED is first and Moser v. Roberts, 185 S.W.3d 912, 915 & K UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY It has been referred to as a “gap-filler” tort, insofar as it should as it tort, insofar as a “gap-filler” to been referred It has 118 Fear of Cancer – A Legitimate Claim in Tort Cases? Kronisch v. United States, 150 F.3d 112, 120 (2d Cir. 1998) (alleging IIED based on Kronisch v. United States, 150 F.3d 112, 120 111 Cato v. United States, 70 F.3d 1103, 1107 (9th Cir. 1995) (rejecting IIED slavery- at 565. at 566. ON § 1984) (providing a list of cases and similar “fears”); 54, at 363 n. 34 (5th ed. ROSSER See See, e.g. See, e.g. See, e.g. Id. Id. See As previously noted, today a consensus exists that—soAs previously noted, long as they do ORTS involved an IIED claim based on an excessive interrogation that caused involved an IIED claim based on an T 113. 114. 112. 116. 117. 185 F.2d 564 (9th Cir. 1950). 118. 119. 115. 111. 1207, 1222 (2011) (Alito, J., dissenting) (discussing com- Snyder v. Phelps, 131 S. Ct. IIED claims are not barred by the FTCA. IIED claims are not of Jackson, 461 A.2d 184, 188–89 (N.J. 1983); W. P foremost a ‘gap-filler’ tort which was created for the ‘limited purpose of allowing recovery in foremost a ‘gap-filler’ tort which was created severe emotional distress in a manner so unusual those rare instances where a defendant inflicts of redress.’”that the victim has no other recognized theory v. (quoting Hoffmann-La Roche, Inc. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004))). Glickman v. United States, 626 F. Supp. unwitting involvement in CIA drug-testing program); 171, 173 (S.D.N.Y. 1985). Robert L. Willmore, “are rigorous, and difficult to satisfy”). (asserting a “demand for reparations to all African American families,” and suggesting that IIED (asserting a “demand for reparations to all African American families,” and suggesting that under the FTCA is a “dignitary tort that could be utilized as the basis” for such a claim). reparations claim brought under the FTCA based on two-year statute of limitations and fact that reparations claim brought under the FTCA based on two-year statute of limitations and fact injuries arose before January 1, 1945); Donald Aquinas Lancaster, Jr., the United States of America’s Sanction of Slavery and Segregation: A Property Law and Equita- the United States of America’s Sanction of Slavery and Segregation: A Property Law and ble Remedy Analysis of African American Reparations Plummer v. United States, 580 F.2d 72, 76 (3d Cir. 1978) (fear of tuberculosis); Plummer v. United States, 580 F.2d 72, 76 (3d Keith J. Klein, of injury alleged and noted that the existence of such a cause of action of injury alleged and noted that the in the law.” reflected a “comparatively recent growth never replace or duplicate another tort already available to the claimant. available to the another tort already or duplicate never replace 390 tort. row” the rubric of IIED—or arising under therefore, cases By definition, its close cousin, negligent of emotional distress—often infliction theories involve of mind-control such as claims legally cognizable, not otherwise B. A History “Intentional Torts” Exception: IIED and the FTCA’s excluded torts— to artful attempts to “plead around” not simply amount \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 16 11-MAY-12 11:23 ment in P as the vehicle of choice for proponents of novel liability theories, such as a for proponents of novel liability as the vehicle of choice slavery reparations. cause of action for 1950, four years after the FTCA was enacted and two years after IIED first the FTCA was enacted and two 1950, four years after the FTCA categori- the Ninth Circuit held that appeared in the Restatement, cally excluded claims for IIED in ton requiring the patient to undergo “shock the plaintiff to become psychotic, treatments.” “fear of cancer” (a.k.a. “cancerphobia”). “fear of cancer” 31446-ust_8-3 Sheet No. 51 Side B 05/11/2012 16:54:17 B 05/11/2012 51 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 52 Side A 05/11/2012 16:54:17 132 128 125 , 391 129 Rayonier The court Hambleton the discussion of 130 Characterizing Block v. Neal The plaintiff in ’s conclusion that 120 ’s view of IIED as see also 124 and the Ninth Circuit rec- the Ninth Circuit , to look beyond a plain- 127 123 , , Hambleton Neal Hambleton and stated that, in determining that Congress Neustadt . , 352 U.S. at 320). If that conduct “constitutes an assault as that If that conduct “constitutes an assault supra 131 Sheehan Sheehan v. United States Sheehan v. United was “no longer controlling.” was “no longer United States v. Neustadt —concludedthe IIED claim fell within the that Rayonier 122 126 , at pp. 387–88, Hambleton EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS Hambleton (referencing 28 U.S.C. § 2680(h) (2006)). Neal Sheehan v. United States, 896 F.2d 1168, 1170–71 (1990); alleged that her military supervisor caused humiliation and emo- supervisor caused humiliation alleged that her military at 1170 (quoting at 566–67. at 567. at 1172. at 1171. “The absurdity of any other view,” the court stated, “would be any other view,” the court stated, “The absurdity of Id. See Id. Id. Id. Id. See id. Id. Id. and 121 The Ninth Circuit in Forty years later, in Forty years later, 130. 126. 352 U.S. 315 (1957). 127. 366 U.S. 696 (1961). 128. 460 U.S. 289 (1983). 129. 120. 121. 122. 123. 896 F.2d 1168 (1990). 124. 125. 131. 132. M K relying on Neustadt manifest, if we were to hold that if when he used his frightening words to hold that if when he used manifest, if we were then the United had pointed a pistol at the plaintiff, [plaintiff’s interrogator] no pistol, the United liable, but that if he had displayed States would not be States could be held.” IIED is necessarily barred by the FTCA’s exclusion of assault claims. IIED is necessarily barred by the FTCA’s In reversing, the court of appeals held that In reversing, the court of appeals had been overtaken by events and nothing more than a species of assault Supreme Court decisions in specifically discussed the intervening all of which the court viewed as undermining 2011] and in substance, is in development this new as “whether question the legal from the extensively quoted law of assault,” and extension of the reality, an is where of Torts, which of the Restatement and Battery” chapter “Assault revision. inserted in the 1948 provision was first the IIED Inc. v. United States \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 17 11-MAY-12 11:23 tort is traditionally defined,” the IIED claim based on it will be “barred tort is traditionally defined,” the IIED constitute a tort other than assault.” even though the conduct may also IIED as “but a new type of assault,” the court concluded that Congress court concluded of assault,” the “but a new type IIED as IIED exclusion to encompass FTCA’s “assault” intended” the “must have cases. Sheehan The district court—sexually harassing and slandering her. tional distress by must have meant for the FTCA’s exclusions to encompass IIED, must have meant for the FTCA’s exclusions caution against “read[ing] ex- ran afoul of the Supreme Court’s subsequent provided by Congress.” emptions into the Act beyond those ognized that noted the requirement, based on FTCA’s intentional-tort exclusion because it actually sounded in assault. FTCA’s intentional-tort exclusion because tiff’s “characterization of the cause of action” to the “conduct upon which tiff’s “characterization of the cause plaintiff’s claim is based.” C Y 31446-ust_8-3 Sheet No. 52 Side A 05/11/2012 16:54:17 A 05/11/2012 52 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 52 Side B 05/11/2012 16:54:17 M K C Y [Vol. 8:3 concluded that complained of faced a situation in faced a situation Gross Gross The dissent, however, Neal 140 ’s analysis in IIED context). 135 139 decision, and considering even though another aspect even though Neal 133 136 ” is one of many examples of the , 896 F.2d at 1170–71). Hambleton The plaintiff in Gross Sheehan 138 137 The Supreme Court in The Supreme , the Ninth Circuit remanded to the district court , the Ninth Circuit remanded to the 134 . , , 579 F.3d at 92–93 (relying on Neal Sheehan , 460 U.S. at 296 (focusing on the “gravamen of the action against the Neal Limone , relied in part for its analysis on the 1982 Eighth Circuit deci- relied in part for its analysis on the , 896 F.2d at 1173. Neal UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY ; , 460 U.S. at 298 (quoted by at 304. (emphasis added). Gross v. United States. Id. Sheehan See id. Neal Id. See, e.g. Sheehan Criticizing the Ninth Circuit’s Ultimately in Today courts considering IIED claims brought under the FTCA widely under the FTCA claims brought considering IIED Today courts the partial overlap between these two tort actions does not support between these two tort actions does the partial overlap Claims Act, if one is excepted under the Tort the conclusion that history of the as well. Neither the language nor the other must be conduct when one aspect of the Government’s Act suggests that exception, a under the “misrepresentation” is not actionable out of from pursuing a distinct claim arising claimant is barred Government’s conduct. other aspects of the 139. 676 F.2d at 297. 140. 136. 137. 676 F.2d 295 (8th Cir. 1982). 138. 135. 133. 134. Government”). sion in 392 relies plaintiff upon which conduct of the “aspect hand, if any other On the suit is not barred an assault, did not constitute been assaultive. may have of that conduct the Supreme directly from rule, which is taken and apply this recognize in Court’s analysis \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 18 11-MAY-12 11:23 which the plaintiff had both a barred misrepresentation claim and a non- had both a barred misrepresentation which the plaintiff issues. According in part on common factual and legal barred claim based to the Court in fraud and falsification by government officials, including wrongfully deny- fraud and falsification by government subsidy program and causing him ing him participation in an agricultural distress. financial harm and attendant emotional the “wrongs” alleged in the complaint, the majority in the “wrongs” alleged in the complaint, because it could not determine whether any of the plaintiff’s allegations because it could not determine whether is not within the definition of any of would “permit proof of conduct that the excluded torts”—and, whether those allegations would consequently, injury from the [IIED] independently “support Sheehan’s claim she suffered of injury suffered from excluded conduct.” the plaintiff’s claim was not barred by §the plaintiff’s claim was not barred 2680(h). concluded that the claim should be excluded because the “wrongful acts concluded that the claim should be to torts falling within §underlying the action” all amounted 2680(h)—spe- mali- cifically, interference with contract, misrepresentation, libel, slander, challenges courts face when attempting to “look beyond” a plaintiff’s alle- challenges courts face when attempting of in order to determine the appli- gations to the underlying acts complained cability of an FTCA exception. 31446-ust_8-3 Sheet No. 52 Side B 05/11/2012 16:54:17 B 05/11/2012 52 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 53 Side A 05/11/2012 16:54:17 144 393 , 521 Still other Addition- 146 142 are inherently 143 Gross vacated on other grounds One case concluded that 147 According to the dissenting to According 141 Another basis on which IIED claims have Another basis on which IIED claims 145 doctrine, which—as previously mentioned— Feres , United States, 298 F. Supp. 2d 1231, 1235 (D. N.M. 2003) (summary Vallo v. , Spotts v. United States, 613 F.3d 559, 574 (5th Cir. 2010) (affirming dismissal , Spotts v. United States, 613 F.3d 559, 574 (5th , Lovely v. United States, 570 F.3d 778, 785 (6th Cir. 2009) (affirming dismissal , Pfau v. Reed, 125 F.3d 927, 933 (5th Cir. 1997), EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS at 305 (Floyd Gibson, J., dissenting). See, e.g. See, e.g. See, e.g. Id. Id. Id. See, e.g. The issues dividing the majority and the dissent in The issues dividing Courts have found IIED claims barred under the FTCA for a variety of Courts have found IIED claims barred 147. 146. 145. 141. 142. 143. 144. M K generally bars any FTCA claim arising out of military service. generally bars any FTCA claim arising of IIED claim brought by ROTC cadet against commanding officer in connection with actions of IIED claim brought by ROTC cadet against commanding officer in connection with taken in response to allegations of sexual assault). judgment for government where assault and battery claim of former inmate who was allegedly support sexually assaulted “encompasses the claim of the proposed IIED, and the allegations that those claims cannot be separated”); D.C. 2002) Koch v. United States, 209 F. Supp. 2d 89, 94 (D. char- (granting motion to dismiss IIED claim based on alleged conduct that “could only be fairly acterized as an assault”). of IIED and other claims based on failure to evacuate prisoners in aftermath of hurricane); Sydnes of IIED and other claims based on failure to evacuate 2008) (affirming summary judgment for govern- v. United States, 523 F.3d 1179, 1187 (10th Cir. arising from alleged wrongful termination and ment on “outrageous conduct” and other claims 1549 (11th Cir. 1990) (reversing grant of sum- retaliation); Hart v. United States, 894 F.2d 1539, on mistaken identification by military of remains mary judgment for plaintiff in IIED case based conflict). of soldier shot down over Laos during Vietnam U.S. 801 (1998); (8th Cir. 1993). Gergick v. Austin, 997 F.2d 1237, 1239 Other IIED claims have been characterized as essentially claims for assault Other IIED claims have been characterized and thus barred by § 2680(h). 2011] of process. abuse and prosecution, cious \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 19 11-MAY-12 11:23 been excluded is the opinion, the majority “err[ed] in allowing the drafting of Gross’s complaint drafting of Gross’s in allowing the the majority “err[ed] opinion, the exceptions.” action falls within whether his to determine perplexing. Particularly without seeing either the complaint or (as applica- without seeing either the complaint perplexing. Particularly difficult to un- record evidence, it is often exceedingly ble) any subsequent in cases of this sort. for characterizing FTCA tort claims derstand the basis widely divergent why courts have seemingly reached This may help explain of the many FTCA IIED claims fall within one conclusions on whether survey of some of these cases follows. exclusions. A brief C. Excluded FTCA Cases Finding IIED Claims excluded because the conduct at reasons. Some IIED claims are considered the discretionary function exception. issue is determined to fall within courts have concluded that an action for IIED based on sexual harassment is courts have concluded that an action Title VII or other statutory schemes unavailable under the FTCA because claims. provide the exclusive remedy for such ally, the dissent concluded, as defined by the relevant “law of the place,” relevant “law as defined by the dissent concluded, ally, the “South in [§] 2680(h)” because included tort would be “implicitly the IIED analogous of rights closely to show an invasion requires Gross Dakota law . .” of rights listed in [§] 2680(h) . . to those invasions C Y 31446-ust_8-3 Sheet No. 53 Side A 05/11/2012 16:54:17 A 05/11/2012 53 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 53 Side B 05/11/2012 16:54:17 M K 155 C Y [Vol. 8:3 ), Justice Souter’s at 422–23. Id. Harbury was that U.S. government officials While this decision appears to be While this decision 149 reiterated the rule from prior decisions 150 , 301 F.3d 1367 (Fed. Cir. 2002). 153 Harbury . 507, 522 (2003). the Court unanimously held that a complaint the Court unanimously aff’d EV 151 , . L. R claim against certain CIA and other federal govern- claim against certain claim that the plaintiff was somehow prevented from claim that the plaintiff was somehow Libels on Government Websites: Exploring Remedies for Federal In- DMIN Bivens , 55 A UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY underlying Awad v. United States, No. 1: 93CV376-D-D, 2001 U.S. Dist. LEXIS 8989, at Accordingly, the denial-of-access plaintiff must identify a “non- Accordingly, the denial-of-access at 406–08. at 415. 152 Id. Id. Id. See 154 In analyzing the constitutional denial-of-access claim (the only count In analyzing the constitutional denial-of-access The Supreme Court has not squarely faced the issue of whether an has not squarely faced the issue The Supreme Court In the face of a concurring opinion sharply differing with the major- differing with the opinion sharply of a concurring In the face 148 Christopher v. Harbury 151. 536 U.S. 403 (2002). 152. 153. Justice Thomas concurred in the judgment on the sole ground that he found no basis in 154. 155. 149. Denson v. United States, 574 F.3d 1318, 1345 & n.67 (11th Cir. 2009). 150. James O’Reilly, 148. the Constitution for the sort of “right of access to courts” at issue. ternet Defamation *11–12 (N.D. Miss. Apr. 27, 2001), bringing and must also “identify a remedy that may be awarded as recom- bringing and must also “identify a some suit that may yet be brought.” pense but not otherwise available in frivolous” opinion for eight of the Justices directly at issue before the Supreme Court in directly at issue before the Supreme the plaintiff’s complaint “did not even The Supreme Court concluded that and—mostcome close” to meeting this standard relevant here—also went counsel to “supply the missing alle- on to address the attempt by plaintiff’s IIED claim falls within one of the FTCA exceptions, but it has come close. one of the FTCA exceptions, IIED claim falls within In 394 U.S. gov- that the alleged who Iraqi, by a defecting brought claim an IIED because it to him, was barred it made failed to fulfill promises ernment the Tucker adjudicated under and must be sounded in contract actually Act. that the decision found Eleventh Circuit analysis, a 2009 ity’s legal and, in particular, sum- barred the FTCA claims at issue Supremacy Clause “is not one of the an IIED claim on the ground that IIED marily dismissed within §torts enumerated 2680(h).” \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 20 11-MAY-12 11:23 that the right to access the courts is “ancillary to the underlying claim, with- that the right to access the courts is suffered injury by being shut out of out which a plaintiff cannot have court.” failed to state a anomalous, one commentator has observed that the “FTCA case law shows has observed that the “FTCA anomalous, one commentator for . . . intentional by courts to permit damage awards a consistent refusal distress.” infliction of emotional ment officials for denial of access to the courts. The gravamen of the plain- ment officials for denial of access to tiff’s underlying allegations in bore responsibility for the fact that her late husband—abore responsibility for the fact that Guatemalan rebel leader—wassummarily executed by Guatemalan detained, tortured, and trained, paid, and used as informants by military officers, including officers the CIA. 31446-ust_8-3 Sheet No. 53 Side B 05/11/2012 16:54:17 B 05/11/2012 53 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 54 Side A 05/11/2012 16:54:17 395 Other 163 The response The Another IIED In reversing the In reversing 156 162 doctrine. 157 Feres A recent case involving barred 161 In one case, an FTCA damages award to a In one case, an FTCA damages 164 , Santiago–Ramirez v. Sec’y of Dep’t of Def., 984 F.2d 16, 20 (1st Cir. 1993) EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS 158 Alvarez-Machain v. United States,(9th Cir. 2003). 331 F.3d 604, 641 at 420. at 418. Kohn v. United States, 680 F.2d 922, 924 (2d Cir. 1982) (reversing dismissal of at 420 n.19. Among several such difficulties, the Court noted that it would be difficulties, the Court noted that Among several such See, e.g. Id. Id. Id. See See Id. This skeptical footnote, while not binding, seems to recognize that This skeptical footnote, while not 159 Notwithstanding some of the hurdles to having an IIED claim recog- Notwithstanding some of the hurdles The Supreme Court found this to be error and offered some telling found this to be error and offered The Supreme Court 160 164. 157. Christopher v. Harbury, 536 U.S. 403, 419 (2002). 158. 159. 160. 161. 162. Lu v. Powell, 621 F.3d 944, 950 (9th Cir. 2010). 163. 156. M K cause of action sounding in IIED). (allegedly wrongful theft accusation, interrogation, threatened FBI investigation, and termination); questionable whether any IIED claim “could be maintained under the Fed- any IIED claim “could be maintained questionable whether of “certain inten- Act,” citing both the FTCA’s exclusion eral Tort Claims imprisonment, and assault, battery, false tional torts including in a foreign coun- and its exclusion of claims arising misrepresentation,” try. bar IIED claims even though IIED is not other FTCA exceptions may often listed as an excluded cause of action. D. Not Excluded FTCA Cases Finding IIED Claims have found such claims not to fall nized under the FTCA, many courts Thus, a Mexican national was al- within any of the statutory exclusions. IIED based on his allegedly wrongful lowed to bring an FTCA claim for extraterritorial arrest by DEA agents. 2011] of appeals. court before the oral argument during gations” an extended footnote, proposed underlying IIED claim. In comments on the made it “unnec- the absence of any identifiable remedy the Court stated that other difficulties in any of the [denial-of-access] claim’s essary to resolve causes of ac- for nonfrivolous and arguable underlying satisfying the need tion.” \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 21 11-MAY-12 11:23 claims of assault and molestation held that related “emotional distress suf- claims of assault and molestation held sexual favors is an injury distinct from fered as a result of the demand for any FTCA exclusion. the battery” and thus not subject to the attorney provided at that time was that the plaintiff “would have brought plaintiff “would time was that the provided at that the attorney distress.” of emotional for intentional infliction an action serviceman shot to death by a fellow claim brought by the parents of a them by suppressing information soldier, alleging that the Army mistreated be barred by the about the incident, was held not to district court’s dismissal of the denial-of-access claim, the D.C. Circuit had claim, the D.C. the denial-of-access dismissal of district court’s cause of an underlying as a sufficient statement this amendment “accepted of action.” cases have allowed IIED claims based on forms of alleged harassment to cases have allowed IIED claims based proceed under the FTCA. C Y 31446-ust_8-3 Sheet No. 54 Side A 05/11/2012 16:54:17 A 05/11/2012 54 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 54 Side B 05/11/2012 16:54:17 M K 175 C Y Fol- Vari- 173 [Vol. 8:3 172 have also 167 case grew out of one of the In late 2000—more than 30 Limone 174 170 IIED claims involving allegations of involving allegations IIED claims the First Circuit recently affirmed an Circuit recently the First 165 168 , and other purported misconduct and other The court stated that the question whether plain- The court stated that the question whether 166 176 Based on this belated revelation, the convictions were Based on this belated 171 at 91. UNIVERSITY OF ST. THOMAS LAW JOURNAL LAW THOMAS ST. OF UNIVERSITY , 579 F.3d at 83. Trentadue v. United States, 397 F.3d 840, 867 (10th Cir. 2005). Trentadue v. United States, 397 F.3d 840, 867 Raz v. United States, 343 F.3d 945 (8th Cir. 2003);Raz v. United States, 343 F.3d 945 (8th Cir. Sabow v. United States, 93 F.3d Bravo v. United States, 583 F.3d 1297, 1299 n.2 (11th Cir. 2009) (Carnes, J., concur- Ritchie v. United States, 210 F. Supp. 2d 1120, 1125 (N.D. Cal. 2002). Ritchie v. United States, 210 F. Supp. 2d 1120, at 86. at 87. at 91 n.6 (discussing Agis v. Howard Johnson Co., 355 N.E.2d 315 (Mass. 1976)). Four men were convicted in 1968 on state indictments for a convicted in 1968 on state indictments Four men were Limone v. United States Limone v. See Limone Id. Id. Id. Id. See id. Id. See See See 169 On appeal, after concluding that the plaintiffs failed to prove malicious On appeal, after concluding that the In 168. 579 F.3d 79 (1st Cir. 2009). 169. 170. 171. 172. 173. 174. 175. 176. 167. 165. 166. ring in the denial of rehearing en banc) (“The facts in the 1445 (9th Cir. 1996); Gasho v. United States, 39 F.3d 1420 (9th Cir. 1994). 1445 (9th Cir. 1996); Gasho v. United States, darkest chapters in the history of the FBI.”). “gang-land slaying” that took place in 1965. “gang-land slaying” the First Circuit considered the IIED claim. The court noted that the govern- the First Circuit considered the IIED the “seminal Massachusetts case” rec- ment had waived any argument that had not yet been decided at the time of ognizing a cause of action for IIED the convictions at issue. Truman v. United States, 26 F.3d 592, 596–97 Jense v. (5th Cir. 1994) (sexual harassment); 1998) (sexual harassment). Runyon, 990 F. Supp. 1320, 1324 (D. Utah prosecution (because the FBI had never instituted criminal proceedings), prosecution (because the FBI had never 396 a on based was affirmed theory an IIED under estate prisoner’s deceased once he was down the inmate a cell to cut delay in entering prison guard’s himself. to have hanged discovered \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 22 11-MAY-12 11:23 tiffs’ IIED claim actually “arises out of” malicious prosecution “necessi- tiffs’ IIED claim actually “arises inquiry” in which “substance trumps tates a fact-sensitive, case-specific the nomenclature employed by the form” and the court must “look past mind control experiments mind control much of their lives certain “scapegoats” had spent years later and after wrongfully incarcerated—the that all along FBI “for the first time disclosed the story of a key wit- intelligence undercutting” it had possessed reliable in order to “secure FBI had “suppressed this intelligence” ness and that the the convictions.” from prison. surviving defendant was released vacated and the sole intentional-infliction FTCA judgment and damage award of more than 100 FTCA judgment and damage award intentional-infliction were particularly egre- facts, as recounted by the court, million dollars. The gious. ous plaintiffs (including the scapegoats’ family members) filed suit over the ous plaintiffs (including the scapegoats’ claims against the United States. incident, including multiple FTCA been allowed to proceed under the FTCA. to proceed under been allowed lowing a 22-day bench trial, the district court found for the plaintiffs on a lowing a 22-day bench trial, the district for IIED. number of claims, including claims 31446-ust_8-3 Sheet No. 54 Side B 05/11/2012 16:54:17 B 05/11/2012 54 Side Sheet No. 31446-ust_8-3 31446-ust_8-3 Sheet No. 55 Side A 05/11/2012 16:54:17 181 , 26 397 The 177 Truman 182 went on to affirm the went on to affirm Limone Aguilar v. United States, 397 F.3d 840, ex rel. ONCLUSION C The First Circuit in The First Circuit The court concluded that § The court concluded not exclude 2680(h) did 180 179 , 579 F.3d at 93. EXCEPTIONS TO THE FEDERAL TORT CLAIMS ACT CLAIMS TORT FEDERAL THE TO EXCEPTIONS at 103–07. at 100 (noting that the government did not challenge this finding by the district at 92 (citing Snow-Erlin v. United States, 470 F.3d 804, 808–09 at 92 (citing Snow-Erlin v. United States, 470 (9th Cir. 2006); at 92–93 (citing Estate of Trentadue at 92–93. and those in which IIED claims were not barred because there was because there claims were not barred in which IIED and those See id. Limone See id. Id. See id. Id. The basic waiver of sovereign immunity set forth in the FTCA is rid- The basic waiver of sovereign immunity 178 182. 180. 181. 177. 178. 179. M K court and observing that “[o]n this record, it is unarguable that the wrongful indictment, prosecu- tion, conviction, and incarceration caused the victims severe emotional distress”). “merely a loose connection, a family resemblance, or even a partial overlap or even a a family resemblance, loose connection, “merely a comprising claim rests and that the asserted the conduct on which between an excepted tort.” district court’s conclusion that the plaintiffs proved the elements of IIED, that the plaintiffs proved the district court’s conclusion and—despite some misgivings—upheld award as the very large damages of the district court’s discretion. not outside the range exceptions to the exceptions. These pro- dled with exceptions, provisos, and even collide in complex ways in the visions often intersect, overlap, or challenges for litigants and context of a single case, creating mind-bending various exceptions has frequently courts alike. While the rationale behind been questioned—often justifiably so—it must be borne in mind that Con- be a blanket waiver of sovereign immu- gress never intended the FTCA to exceptions have been modified more nity as to any and all tort liability. The enactment, and further changes are no than once since the law’s original at this time the FTCA’s exceptions con- doubt to be expected. Nevertheless, scheme, and litigants are well-advised stitute a core feature of the statutory in any case arising under the law. to pay careful heed to their applicability 2011] grievance.” of the plaintiff’s nature the actual focus on and plaintiff \\jciprod01\productn\U\UST\8-3\UST305.txt unknown Seq: 23 11-MAY-12 11:23 F.3d at 596 (IIED claim not barred by assault or battery exceptions because elements of latter torts F.3d at 596 (IIED claim not barred by assault or battery exceptions because elements of latter were not alleged); and Jimenez-Nieves v. United States, 682 F.2d 1, 4–5 (1st Cir. 1982) (negli- gence claim not barred by misrepresentation exception because reliance not present)). Truman v. United States, 26 F.3d 592, 595 (5th Cir. 1994); and Thomas-Lazear v. FBI, 851 F.2d Truman v. United States, 26 F.3d 592, 595 (5th 1202, 1207 (9th Cir. 1988)). ele- 855 (10th Cir. 2005) (holding IIED claim not barred by misrepresentation exception because ments of misrepresentation, including reliance and pecuniary loss, were not present); IIED in this instance because the plaintiffs’ claim involved substantively because the plaintiffs’ claim IIED in this instance associated with conduct “broader than that traditionally different proof of prosecution”—specifically,the tort of malicious of certain conduct proof of extreme and outra- wrongful convictions and proof that post-dated the geous FBI conduct. court then listed two types of cases: those in which IIED was barred be- in which IIED was of cases: those listed two types court then excluded con- on proof of found to have rested grievances were cause the duct C Y 31446-ust_8-3 Sheet No. 55 Side A 05/11/2012 16:54:17 A 05/11/2012 55 Side Sheet No. 31446-ust_8-3