The “Constitutional-Claims Exclusion” Fallacy: The Courts’ Attempt to “Back-Door” Constitutional Claims into the Federal Tort Claims Act

Authors

Brent Dugwyler, Liberty University

Abstract

When federal agents violate a citizen’s constitutional rights, justice demands that someone be held accountable and the plaintiff be redressed for his injuries. While a plaintiff can sue the agents in their individual capacities, it is unclear whether the federal government itself can be held liable. Under the Federal Torts Claims Act (FTCA), plaintiffs can sue the federal government for the torts of its employees. But there are limitations and exceptions. For example, the FTCA applies only to state-law torts, not to federal constitutional violations. Further, the FTCA’s “discretionary-function” exception immunizes federal agents’ conduct when they act within their discretion. As a result, courts have traditionally barred plaintiffs from bringing federal constitutional claims against the federal government.

Recently, however, plaintiffs have employed a creative way to overcome both of these roadblocks in one fell swoop: they use their constitutional claim to defeat the discretionary-function exception. It’s a simple two-step process. First, the plaintiff pleads a state-law tort claim—to which the FTCA applies. Second, he alleges a constitutional violation—not as a substantive claim—but solely as a means to negate the discretionary-function exception. The plaintiff argues that since unconstitutional acts are per se not discretionary, any constitutional violation removes the agents’ conduct from the scope of the discretionary-function exception. This argument has won favor with the majority of the circuit courts that have addressed the issue.

This Comment argues that the conclusion drawn by the majority of the circuit courts is erroneous. The plain text of the FTCA forecloses any constitutional claims—whether they be substantive claims or back-door attempts to defeat the discretionary-function exception. While it may seem unjust to permit the government to violate its citizens’ constitutional rights with impunity, it is simply not the courts’ role to rewrite the FTCA to reach a result the statutory text does not permit.

Recommended Citation

Dugwyler, Brent (2024) "The “Constitutional-Claims Exclusion” Fallacy: The Courts’ Attempt to “Back-Door” Constitutional Claims into the Federal Tort Claims Act," Liberty University Law Review: Vol. 18: Iss. 3, Article 2.
Available at: https://digitalcommons.liberty.edu/lu_law_review/vol18/iss3/2