Federal Tort Claims Act
Federal Tort Claims Act
Updated September 2, 2008
American Law Division
Vanessa K. Burrows
American Law Division
Federal Tort Claims Act
The Federal Tort Claims Act is the statute by which the United States authorizes
tort suits to be brought against itself. With exceptions, it makes the United States
liable for injuries caused by the negligent or wrongful act or omission of any federal
employee acting within the scope of his employment, in accordance with the law of
the state where the act or omission occurred. Three major exceptions, under which
the United States may not be held liable, even in circumstances where a private
person could be held liable under state law, are the Feres doctrine, which prohibits
suits by military personnel for injuries sustained incident to service; the discretionary
function exception, which immunizes the United States for acts or omissions of its
employees that involve policy decisions; and the intentional tort exception, which
precludes suits against the United States for assault and battery, among some other
intentional torts, unless they are committed by federal law enforcement or
This report discusses, among other things, the application of the Feres doctrine
to suits for injuries caused by medical malpractice in the military, the prohibition of
suits by victims of atomic testing, Supreme Court cases interpreting the discretionary
function exception, the extent to which federal employees may be held liable for torts
they commit in the scope of their employment, and the government contractor
defense to products liability design defect suits.
In the 110th Congress, two bills have been introduced that would amend the
Federal Tort Claims Act: H.R. 2249, the Federal Tort Claim Reform Act of 2007,
and H.R. 6093, the Carmelo Rodriguez Military Medical Accountability Act of 2008.
In troduction ......................................................1
The Feres Doctrine and Medical Malpractice............................5
The Discretionary Function Exception.................................9
Suits by Victims of Atomic Testing...................................12
The Warner Amendment and the Radiation Exposure
The Intentional Tort Exception......................................17
Suits Against Federal Employees ....................................19
Constitutional Torts: Federal Employees’ Liability
The Practical Side of Bivens Actions..............................25
Qualified Immunity to Bivens Actions.............................26
The Government Contractor Defense.................................27
Federal Tort Claims Act
The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-2680, is the
statute by which the United States authorizes tort suits to be brought against itself.
As a result of the common law doctrine of sovereign immunity, “the United States1
cannot be sued without its consent.” “Congress alone has the power to waive or
qualify that immunity.”2 In 1946, by enacting the FTCA, Congress waived sovereign
immunity for some tort suits. With exceptions, it made the United States liable:
for injury or loss of property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the government while acting
within the scope of his office or employment, under circumstances where the
United States, if a private person would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
Thus, the FTCA makes the United States liable for the torts of its employees3
to the extent that private employers are liable under state law for the torts of their4
employees. The fact that state law would make a state or municipal entity — as
opposed to a private person — liable under like circumstances is not sufficient to5
make the United States liable under the FTCA.
The FTCA, however, contains exceptions under which the United States may
not be held liable even though a private employer could be held liable under state
law. Three of these exceptions are examined in separate sections of this report: the
Feres doctrine, which prohibits suits by military personnel for injuries sustained
1 Federal Housing Administration v. Burr, 309 U.S. 242, 244 (1940).
2 United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 (1926).
3 The United States may be held liable under the FTCA for torts of employees of the
executive, legislative, and judicial branches, but not for torts of government contractors. 28
U.S.C. § 2671.
4 Another section of the FTCA provides that the United States shall be liable “in the same
manner and to the same extent as a private individual under like circumstances” (28 U.S.C.
§ 2674(a)), and the Supreme Court has noted that “like circumstances” are not limited to
“the same circumstances,” but include “analogous” circumstances. United States v. Olson,
5 United States v. Olson, supra, note 4.
incident to service;6 the discretionary function exception; and the intentional tort
exception. Among the other exceptions, the United States may not be held liable in
accordance with state law imposing strict liability;7 it may not be held liable for
interest prior to judgment or for punitive damages (28 U.S.C. § 2674);8 for the act or
omission of an employee exercising due care in the execution of an invalid statute or
regulation (28 U.S.C. § 2680);9 for claims “arising out of the loss, miscarriage, or
negligent transmission of letters or postal matter”;10 for claims “arising in respect of
the assessment or collection of any tax11 or customs duty, or the detention of any
goods, merchandise, or other property by any officer of customs or excise or any
other law enforcement officer”;12 for claims caused by the fiscal operations of the
6 Federal civilian employees covered by the Federal Employees’ Compensation Act, 5
U.S.C. §§ 8101 et seq., are also prohibited from suing under the FTCA for work-related
injuries. 5 U.S.C. § 8116(c).
7 The requirement in 28 U.S.C. § 1346(b) that liability be based on a “negligent or wrongful
act or omission” has been construed to preclude strict liability. See, Dalehite v. United
States, 346 U.S. 15, 44-45 (1953). However, the National Swine Flu Immunization Program
of 1976, P.L. 94-380, made the United States liable for injuries arising out of the
administration of the swine flu vaccine to the extent that manufacturers would be liable
under state law “including negligence, strict liability in tort, and breach of warranty.”
8 In Molzof v. United States, 502 U.S. 301 (1992), the Supreme Court held that damages for
future medical expenses and loss of enjoyment of life for a veteran in a permanent
vegetative state as a result of government hospital employees’ negligence were not
“punitive” and therefore could be awarded. The government had argued that these damages
were punitive rather than compensatory in nature because the award for future medical
expenses duplicated free medical services already being provided by the veterans’ hospital,
and the award for loss of enjoyment of life cannot redress a comatose patient’s uncognizable
loss. The Court held, however, “that § 2674 bars the recovery only of what are legally
considered ‘punitive damages’ under traditional common-law principles.” Id. at 312
(emphasis in original).
9 Subsequent exceptions cited in the sentence also appear in 28 U.S.C. § 2680.
10 In Dolan v. United States Postal Service, 546 U.S. 481 (2006), the Supreme Court held
that the postal exception is inapplicable to a claim that mail left on the plaintiff’s porch
caused her to trip and fall, just as it is inapplicable to the negligent operation of postal motor
vehicles. “Congress intended to retain immunity,” the Court wrote, “only for injuries
arising, directly or consequentially, because mail either fails to arrive at all or arrives late,
in damaged condition, or at the wrong address.” Id. at 489. Losses of this type, the Court
added, “are at least to some degree avoidable or compensable through postal registration and
insurance.” Id. at 490.
11 Section 6241 of the Technical and Miscellaneous Revenue Act of 1988, P.L. 100-647,
authorizes taxpayers to sue the United States if “any officer or employee of the Internal
Revenue Service recklessly or intentionally disregards” any provision of the Internal
Revenue Code, and to recover up to $100,000 in “actual, direct economic damages”
sustained as a result of such action. 26 U.S.C. § 7433.
12 Public Law 106-185 (2000) added an exception to this exception to the FTCA, allowing
suits in some cases involving forfeiture of property other than as a sentence for a crime. In
Ali v. Federal Bureau of Prisons, 128 S. Ct. 831, 834 (2008), the Court held “that the broad
phrase ‘any other law enforcement officer’ covers all law enforcement officers,” including
officers of the Federal Bureau of Prisons, and does not apply “only to law enforcement
Treasury or by the regulation of the monetary system; for claims arising out of
combatant activities; or for claims arising in a foreign country.13
Prior to filing suit under the FTCA, a claimant must present his claim to the
federal agency out of whose activities the claim arises. 28 U.S.C. § 2675.14 This
must be done within two years after the claim accrues. 28 U.S.C. § 2401.15 If, within
six months after receiving a claim, the agency mails a denial of the claim to the
claimant, then the claimant has six months to file suit in federal district court. 28
U.S.C. §§ 2401, 2675. No period of limitations applies to a plaintiff if the agency
fails to act within six months after receiving his claim.16 Suits under the FTCA are
tried without a jury. 28 U.S.C. § 2402.17
officers enforcing customs or excise laws.”
13 In Smith v. United States, 507 U.S. 197, 198 (1993), the Supreme Court held that
Antarctica is a foreign country for this purpose even though it is “a sovereignless region
without civil tort law of its own.” In Sosa v. Alvarez-Machain, 542 U.S. 692, 712 (2004),
the Supreme Court held “that the FTCA’s foreign country exception bars all claims based
on any injury suffered in a foreign country, regardless of where the tortious act or omission
occurred.” The plaintiff’s suit therefore was dismissed even though his “abduction in
Mexico was the direct result of wrongful acts of planning and direction by DEA agents
located in California.” Id. at 702. The Court was unwilling to adopt the “headquarters
doctrine” because “it will virtually always be possible to assert that the negligent activity
that injured the plaintiff [abroad] was the consequence of faulty training, selection or
supervision — or even less than that, lack of careful training, selection or supervision — in
the United States.” Id.
Although the United States is not liable for claims arising in a foreign country, federal
statutes give several federal agencies the authority to compensate victims of torts committed
by federal employees in foreign countries. These statutes include 22 U.S.C. §§ 1475(5),
2269(f), 2269-1 (Department of State), 38 U.S.C. § 515(b) (Department of Veterans
Affairs), 22 U.S.C. § 2509(b) (Peace Corps), and 10 U.S.C. §§ 2733, 2734 (Department of
14 In McNeil v. United States, 508 U.S. 106 (1993), the Supreme Court disallowed a suit
because the claimant had not first filed an administrative claim, even though the claimant
was a prisoner without legal counsel and had filed an administrative claim (later denied)
only four months after filing suit, before any substantial progress in the litigation had
15 A claim accrues under the FTCA when “the plaintiff has discovered both his injury and
its cause.” United States v. Kubrick, 444 U.S. 111, 120 (1979). This rule benefits, among
others, plaintiffs with latent diseases that are not discovered until years after exposure to a
hazardous substance. See also, Sinclair and Szypszak, Limitations of Action Under the
FTCA: A Synthesis and Proposal, 28 Harvard Journal on Legislation 1 (1991); Annotation,
Statute of Limitations Under Federal Tort Claims Act (28 USCS § 2401(b)), 29 ALR Fed
16 Pascale v. United States, 998 F.2d 186 (3d Cir. 1993).
17 See, Kirst, Jury Trial and the Federal Tort Claims Act: Time to Recognize the Seventh
Amendment Right, 58 Texas Law Review 549 (1980).
An agency may not settle a claim for more than $25,000 without the prior
written approval of the Attorney General or his designee, unless the Attorney General
delegates to the head of the agency the authority to do so.18 “Such delegations may
not exceed the authority delegated by the Attorney General to United States attorneys
to settle claims for money damages against the United States.”19 United States
attorneys are authorized to settle claims in amounts up to $1 million.20 Settlements
of $2,500 or less shall be paid by the agency out of appropriations available to the
agency; settlements of more than $2,500 shall be paid from general revenues. 28
U.S.C. § 2672.
Attorneys who represent claimants under the FTCA may not charge claimants
more than 25% of a court award or a settlement made by the Attorney General or his
designee after suit is filed, or more than 20% of a settlement made by the agency with
whom a claim is filed. 28 U.S.C. § 2678.21 A court may not order the United States
to pay a claimant’s attorneys’ fees unless the court finds the United States to have
acted in bad faith. 28 U.S.C. § 2412(b).22
18 28 U.S.C. § 2672, as amended by P.L. 101-552, § 8; 38 U.S.C. § 515. There appears to
be no general limit on settlements effected with the prior written approval of the Attorney
General or his designee. A limit applicable to the Department of Justice in non-FTCA
situations is noted in footnote 45 of this report.
19 28 U.S.C. § 2672, as amended by P.L. 101-552, § 8; see also, 38 U.S.C. § 515.
20 28 C.F.R. § 0.168(d)(2); see, Lester Jayson and Robert Longstreth, HANDLING FEDERAL
TORT CLAIMS: ADMINISTRATIVE AND JUDICIAL REMEDIES, § 15.05. The Attorney
General has delegated the authority to settle tort claims of up to $200,000 to the Secretary
of Veterans Affairs, the Postmaster General, the Secretary of Defense, and the Secretary of
Health and Human Services, and of up to $100,000 to the Secretary of Transportation. 28
C.F.R. Part 14, App.
21 See, Annotation, Calculations of Attorneys’ Fees Under Federal Tort Claims Act — 28
USCS § 2678, 86 ALR Fed 866. A California statute that limited the amount of attorneys’
fees that may be charged a client in a medical malpractice action was held to be preempted
to the extent that it would apply in an action brought under the FTCA. Jackson v. Unitedth
States, 881 F.2d 707 (9 Cir. 1989).
22 The pertinent part of this provision, which is part of the Equal Access to Justice Act,
states: “The United States shall be liable for such fees [i.e., reasonable attorneys’ fees] and
expenses to the same extent that any other party would be liable under the common law or
under the terms of any statute which specifically provides for such an award.” No statute
provides for fee awards under FTCA, and another part of the Equal Access to Justice Act,
which authorizes fee awards against the United States in some instances where other parties
would not be liable for fee awards, does not apply to “cases sounding in tort.” 28 U.S.C.
§ 2412(d)(1)(A). However, under the common law, parties other than the United States may
be held liable for attorneys’ fees when they act in bad faith. Alyeska Pipeline Service Co.
v. Wilderness Society, 421 U.S. 240, 258-259 (1975).
In Sanchez v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989), the court found a lack of the
requisite bad faith and therefore did “not reach the issue whether an award of attorneys fees
would . . . be barred by the FTCA prohibition against punitive damages [28 U.S.C. § 2674].”
Subsequently, however, in Molzof v. United States, supra, note 8, the Supreme Court, in a
different context, held “that § 2674 bars the recovery only of what are legally considered
The Feres Doctrine and Medical Malpractice
In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court unanimously
held that, although the FTCA contains no explicit exclusion for injuries sustained by
military personnel incident to service, such an exclusion results from construing the
act “to fit, so far as will comport with its words, into the entire statutory scheme of
remedies against the Government to make a workable, consistent and equitable
whole.” 340 U.S. at 139. One reason the Court found that to prohibit recovery for
injuries sustained incident to service would fit the entire statutory scheme was that
the act, at 28 U.S.C. § 2674, makes the United States liable only “to the same extent
as a private individual under like circumstances.” This limitation could be construed
to exclude service-connected injuries because, the Court found,
that plaintiffs can point to no liability of a “private individual” even remotely
analogous to that which they are asserting against the United States. We know
of no American law which ever has permitted a soldier to recover for negligence,
against either his superior officers or the Government he is serving. Nor is there
any liability “under like circumstances,” for no private individual has power to
conscript or mobilize a private army with such authorities over persons as the
Government vests in echelons of command.
Another basis for the Court’s decision in Feres was that the act makes “the law
of the place where the act or omission occurred” (28 U.S.C. § 1346(b)) govern
liability, yet, in the case of a soldier, who is not free to choose his habitat, “[t]hat the
geography of an injury should select the law to be applied to his tort claims makes
no sense.” Id. at 143. The Court also was influenced by the fact that Congress has
enacted laws that “provide systems of simple, certain, and uniform compensation for
injuries or death of those in armed services,” yet Congress made no provision as to
how recovery under the FTCA would affect entitlement to such compensation. “The
absence of any such adjustment is persuasive that there was no awareness that the act
might be interpreted to permit recovery for injuries incident to military service.” Id.
at 144. The Court concluded:
that the Government is not liable under the Federal Tort Claims Act for injuries
to servicemen where the injuries arise out of or are in the course of activity
incident to service. Without exception, the relationship of military personnel to
the Government has been governed exclusively by federal law. We do not think
that Congress, in drafting the Act, created a new cause of action dependent on
local law for service-connected injuries or death due to negligence. We cannot
impute to Congress such a radical departure from established law in the absence
of express congressional command.
‘punitive damages’ under traditional common-law principles.”
In Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 671-672
(1977), the Supreme Court identified three rationales as the foundation for the Feres
First, the relationship between the Government and members of its Armed Forces
is “‘distinctively federal in character,’”. . . ; it would make little sense to have the
Government’s liability to members of the Armed Services depend on the fortuity
of where the soldier happened to be stationed at the time of the injury.
Second, the Veterans’ Benefits Act establishes as a substitute for tort liability,
a statutory “no fault” compensation scheme which provides generous pensions
to injured servicemen, without regard to any negligence attributable to the
A third factor was explicated in United States v. Brown, 348 U.S. 110, 112
(1954), namely, “[t]he peculiar and special relationship of the soldier to his
superiors, the effects of the maintenance of such suits on discipline, and the
extreme results that might obtain if suits under the Tort Claims Act were allowed
for negligent orders given or negligent acts committed in the course of military
duty. . . .”
The Supreme Court reaffirmed the Feres doctrine in United States v. Shearer,
473 U.S. 52 (1985), and again addressed the reasons for its adoption. “Feres seems
best explained,” the Court wrote:
“by the ‘peculiar and special relationship of the soldier to his superiors, the
effects of the maintenance of such suits on discipline, and the extreme results
that might obtain if suits under the Tort Claims Act were allowed for negligent
orders given or negligent acts committed in the course of military duty.’” The
Feres doctrine cannot be reduced to a few bright-line rules; each case must be
examined in light of the statute as it has been construed in Feres and subsequent
The Court emphasized that significant factors in determining whether the Feres
doctrine bars a suit are “whether the suit requires the civilian court to second-guess
military decisions . . . and whether the suit might impair military discipline.” Id. at
at 58 n.4. These other factors apparently were the distinctively federal nature of the
relationship between the government and military personnel, and the alternative
compensation system available to military personnel. Subsequently, however, in
United States v. Johnson, 481 U.S. 681 (1987), discussed below, the Court
reaffirmed these factors.
In Atkinson v. United States,23 a panel of the United States Court of Appeals for
the Ninth Circuit, relying primarily on Shearer, allowed a medical malpractice suit
to be brought under the FTCA by a servicewoman who suffered injuries “incident to
23 804 F.2d 561 (9th Cir. 1986), modified, 813 F.2d 1006 (9th Cir. 1987), withdrawn, 825 F.2d
service” in an Army hospital. The government sought a rehearing, and, in the
interim, the Supreme Court decided United States v. Johnson, supra, which caused
the Ninth Circuit’s panel to grant the rehearing and issue a new opinion in Atkinson,
reversing itself. The Supreme Court subsequently declined to review the case. These
three decisions — the panel’s first decision in Atkinson, Johnson, and the panel’s
second decision in Atkinson — are now examined in turn.
The plaintiff in Atkinson alleged that negligence on the part of Army hospital
personnel had caused her to deliver a stillborn child and to suffer physical and
emotional injuries. The panel, in its first decision, wrote:
[T]he Feres doctrine bars suit only where a civilian court would be called upon
to second-guess military decisions or where the plaintiff’s admitted activities are
of the sort that would directly implicate the need to safeguard military discipline.
. . . In Shearer, the Supreme Court also confirmed that courts should take a
case-by-case, rather than per se, approach to claims [by the government] of
At the time Atkinson sought treatment, she was “not subject in any real way to
the compulsion of military orders or performing any sort of military mission.” . . .
No command relationship exists between Atkinson and her attending physician.
No military considerations govern the treatment in a non-field hospital of a
woman who seeks to have a healthy baby. No military discipline applies to the
care a conscientious physician will provide in this situation. . . . There is simply
no connection between Atkinson’s medical treatment and the decisional or
disciplinary interest protected by the Feres doctrine.
Id. at 564-565.
Note that this decision did not hold that all military malpractice suits are exempt
from the Feres doctrine. In taking a case-by-case approach, the court allowed for the
possibility of a situation in which there is a connection between a serviceman or
servicewoman’s “medical treatment and the decisional or disciplinary interest
protected by the Feres doctrine.”
In 1987, in United States v. Johnson, supra, the Supreme Court, in a 5-to-4
decision, held that the Feres doctrine bars suits on behalf of military personnel
injured incident to service even in cases of torts committed by employees of civilian
agencies. The plaintiff in Johnson was the widow of a serviceman killed incident to
service in a helicopter crash allegedly caused by the negligence of the Federal
Aviation Administration. Reexamining the reasons for the Feres doctrine, the Court
concluded that whether the tortfeasor was a civilian or a military employee was not
significant. The reasons for the Feres doctrine that it reexamined, and reaffirmed,
were the three cited in Stencel, set forth on page 5 of this report. Thus, it removed
any doubts that it had cast in Shearer upon the significance of those factors.
Justice Scalia, joined by three other justices in dissent, noted that the Feres
doctrine is not in the FTCA as enacted by Congress, and found the reasons offered
by the Court for adopting the doctrine to be unsatisfactory:
[N]either the three original Feres reasons nor the post hoc rationalization of
“military discipline” justifies our failure to apply the FTCA as written. Feres
was wrongly decided and heartily deserves the “widespread, almost universal
criticism” it has received.
Citing Johnson, the Ninth Circuit’s panel subsequently reversed itself in
Significant for our purposes [the panel wrote] is the Court’s articulation, with
apparent approval, of all three rationales associated with Feres. . . . Simply put,
Johnson appears to breathe new life into the first two Feres rationales, which
until that time had been largely discredited and abandoned. . . . Although we
believe that the military discipline rationale does not support application of the
Feres doctrine in this case, the first two rationales support its application. . . .
We are . . . reluctant to carve out an exception to Feres after five members of the
Court appear to have emphatically endorsed Feres and all three of its rationales.
That task, if it is to be undertaken at all, is properly left to the Supreme Court or
In Del Rio v. United States, 833 F.2d 282 (11th Cir. 1987), a servicewoman who
had given birth to twins brought a medical malpractice suit under the FTCA, alleging
that, as a result of negligent prenatal care at a military hospital, one of her twins
suffered bodily injury and the other died. The Eleventh Circuit held that the Feres
doctrine, as interpreted in Johnson, barred her claim. It agreed with the Ninth
Circuit’s second decision in Atkinson that the first two Feres factors operated to
preclude suit, but, unlike the Ninth Circuit, believed that even the third factor did so.
“Obviously,” the court wrote, “the suit ‘might impair essential military discipline’
. . . .”26
In Irvin v. United States, 845 F.2d 126 (6th Cir. 1988), cert. denied, 488 U.S. 975
(1988), another servicewoman alleged that negligent prenatal care by the military had
resulted in her infant’s death, and another court of appeals held that the Feres
doctrine barred suit under the FTCA.
In Bowers v. United States, 904 F.2d 450 (8th Cir. 1990), the court held that the
Feres doctrine precludes an individual from recovering for medical malpractice
allegedly committed at his pre-induction physical. Although the plaintiff was not a
service member at the time of the alleged negligence, and was not eligible for either
veterans’ benefits or treatment in a military hospital, the court found that two of the
three Feres rationales spelled out in Johnson were applicable: “the relationship
24 The three original reasons Justice Scalia referred to were that “the parallel private liability
required by the FTCA was absent” and the first two reasons mentioned in Stencel; the
“military discipline” rationale was the third reason mentioned in Stencel.
25 The three rationales referred to are those cited in Stencel and by the majority in Johnson.
26 833 F.2d at 286 (citing Shearer, 473 U.S. at 56, and adding emphasis).
between Bowers and the armed forces is distinctively federal,” and a decision for
Bowers “would have a direct effect upon military judgments and decisions.” Id. at
Thus, the Feres doctrine stands and contains no exception for medical
malpractice cases. Because the first two Stencel factors — the federal nature of the
relationship between the government and military personnel, and the alternative
compensation scheme — would seem to apply in every case, there may not even be
occasion for courts to use the case-by-case approach of Shearer. This could change,
however, as a result of action by either the Supreme Court or Congress.
As for the Supreme Court, it is not beyond the realm of possibility that it could
completely overrule Feres. In Johnson, as noted, the four dissenting justices said that
Feres had been wrongly decided, and even downplayed the significance of the fact
that Congress since 1950 has not overturned Feres. 481 U.S. at 702 (Scalia, J.,
dissenting). As for Congress, some Members in the past have shown interest in
amending the Feres doctrine to the extent of authorizing medical malpractice suits.27
Although Feres was an interpretation of the FTCA, it has been applied to bar
suits against the United States under other statutes, including the Privacy Act.
Cummings v. Department of Navy, 116 F. Supp. 2d 76 (D.D.C. 2000).
The application of the Feres doctrine to spouses and children of military
personnel is discussed below, at the beginning of the section on “Suits by Victims of
The Discretionary Function Exception
The discretionary function exception is the most significant exception to
government liability that is explicitly provided for in the FTCA. This exception
immunizes the United States from claims “based upon the exercise or performance
or the failure to exercise or perform a discretionary function.” 28 U.S.C. § 2680(a).
It precludes liability even if a federal employee acted negligently in the performance
or nonperformance of his discretionary duty.28 In Dalehite v. United States, 346 U.S.
is the discretion of the executive or administrator to act according to one’s
judgment of the best course. . . . It . . . includes more than the initiation of
programs and activities. It also includes determinations made by executives or
27 See, e.g., Medical Malpractice Suits for Armed Services Personnel: Hearings on S. 2490
and H.R. 1054 Before the Subcomm. on Courts and Administrative Practice of the Senatethnd
Comm. on the Judiciary, 100 Cong., 2 sess. (1988).
28 Congress has provided that the discretionary function exception does not apply in any
action based upon the act or omission of a participant in the swine flu immunization
program. P.L. 94-380; see also, note 7, supra. Congress has also provided that the
exception does not apply to certain claims based upon gross negligence by employees of the
Consumer Product Safety Commission. 15 U.S.C. § 2053(h)(1)(B).
administrators in establishing plans, specifications or schedules of operations.
Where there is room for policy judgment and decision there is discretion. It
necessarily follows that acts of subordinates in carrying out the operations of
government in accordance with official directions cannot be actionable.
Id. at 34, 35-36 (footnotes omitted).
In United States v. Varig Airlines, 467 U.S. 797 (1984), victims of airplane
accidents alleged that the Federal Aviation Administration (FAA) had acted
negligently in certifying certain airplanes for operation. The FAA had established a
program of “spot-checking” manufacturers’ compliance with minimum safety
standards, and had certified the airplanes involved in the accidents without inspecting
them. The Supreme Court, applying the principles it had set forth in Dalehite, held:
Here, the FAA has determined that a program of “spot-checking” manufacturers’
compliance with minimum safety standards best accommodates the goal of air
transportation safety and the reality of finite agency resources. Judicial
intervention in such decisionmaking through private tort suits would require the
courts to “second-guess” the political, social, and economic judgments of an
agency exercising its regulatory function. . . . It follows that the acts of FAA
employees in executing the “spot-check” program in accordance with agency
directives are protected by the discretionary function exception as well. . . . The
FAA employees who conducted compliance reviews of the aircraft involved in
this case were specifically empowered to make policy judgments.
Id. at 820.29
In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court held that
the United States could be held liable under the FTCA, because the plaintiffs had
proved that federal employees had failed to follow regulations that specifically
prescribed a course of action. The plaintiffs were an infant, who had contracted a
severe case of polio from a dose of Orimune, an oral polio vaccine, and his parents.
They claimed that the Division of Biologic Standards, then a part of the National
Institutes of Health, had violated a federal statute and accompanying regulations in
issuing a license to a vaccine manufacturer to produce Orimune, and that the Bureau
of Biologics of the Food and Drug Administration had violated federal regulations
29 More generally, the Court noted:
As in Dalehite, it is unnecessary — and indeed impossible — to define with
precision every contour of the discretionary function exception. From the
legislative and judicial materials, however, it is possible to isolate several factors
useful in determining when the acts of a Government employee are protected
from liability by § 2680(a). First, it is the nature of the conduct, rather than the
status of the actor, that governs whether the discretionary function exception
applies in a given case. . . . Second, whatever else the discretionary function
exception may include, it plainly was intended to encompass the discretionary
acts of the Government acting in its role as a regulator of the conduct of private
in approving the release of the particular lot that contained the dose that injured the
infant. The regulatory scheme governing licensing in Berkovitz, unlike the one
challenged in Varig, did not permit spot-checking; it required the agency, “prior to
issuing a product license, to receive all data the manufacturer is required to submit,
examine the product, and make a determination that the product complies with safety
standards.” Id. at 542. The regulatory scheme governing release of vaccine lots
apparently would have given the agency the power to establish a spot-checking
program as was used in Varig. However, the plaintiffs alleged that the agency had:
adopted a policy of testing all vaccine lots for compliance with safety standards
and preventing the distribution to the public of any lots that fail to comply.
[Plaintiffs] further allege that notwithstanding this policy, which allegedly leaves
no room for implementing officials to exercise independent policy judgment,
employees of the Bureau knowingly approved a lot that did not comply with
Id. at 547.
The Court sent the case back for trial, holding that if these allegations were30
proved, then the discretionary function exception would not bar the claim. The
Court thus rejected the view expressed by the court below “that the discretionary
function exception exempts the United States from claims based on . . . non-
discretionary operational level acts and omissions taken in furtherance of planning
level discretionary decisions.” 822 F.2d 1322, 1329 (3d Cir. 1987).
In United States v. Gaubert, 499 U.S. 315 (1991), the Court held that the
discretionary function exception barred suit against the United States for the activities
of federal bank regulators in connection with a failing savings and loan association,
the Independent American Savings Association (IASA). The regulators became
“involved in IASA’s day-to-day business. They recommended the hiring of a certain
consultant to advise IASA on operational and financial matters; they advised IASA
concerning whether, when, and how its subsidiaries should be placed into
bankruptcy; they mediated salary disputes; they reviewed the draft of a complaint to
be used in litigation; they urged IASA to convert from state to federal charter; and
they actively intervened when the Texas Savings and Loan Department attempted to
install a supervisory agent at IASA.” Id. at 319-320.
30 More generally, the Court held that, in determining the applicability of the discretionary
a court must first consider whether the action is a matter of choice for the acting
employee. . . . [C]onduct cannot be discretionary unless it involves an element
of judgment or choice. . . . Thus, the discretionary function exception will not
apply when a federal statute, regulation, or policy specifically prescribes a course
of action for an employee to follow. In this event, the employee has no rightful
option but to adhere to the directive. . . . The [discretionary function] exception
. . . protects only governmental actions and decisions based on considerations of
The plaintiff, who was IASA’s chairman of the board and largest shareholder,
alleged that these activities were performed negligently and cost him $100 million
in damages. The United States argued that, even if the regulators’ activities had been
performed negligently, the discretionary function exception precluded recovery. The
court of appeals found that only some of the regulators’ activities were protected by
the discretionary function exception: while “policy decisions” fall within the
exception, “operational actions” do not. Id. at 321. The Supreme Court disagreed:
A discretionary act is one that involves choice or judgment; there is nothing in
that description that refers exclusively to policy-making or planning functions.
Day-to-day management of banking affairs, like the management of other busi-
nesses, regularly require[s] judgment as to which of a range of permissible
courses is the wisest.
Id. at 325.
The discretionary function exception thus applies to decisions based on policy,
whether made at the policy or planning level, on the one hand, or at the operational
level, on the other.31
Suits by Victims of Atomic Testing
From 1946 to 1962, approximately 235 tests of atomic weapons were performed
by federal government contractors. Many military and civilian personnel who
participated in these tests claim to have suffered cancer and other long-term medical
injuries as a result. Current federal law generally precludes either military or civilian
personnel from recovering in tort against either the federal government or the
contractors in these cases.
Military personnel are barred from recovering against the United States because
of the Feres doctrine.
The doctrine of the Feres case does not apply to the spouse or child of a
serviceman insofar as their own injuries or death are concerned . . . . Conversely,
the Feres doctrine clearly bars a suit by a serviceman’s next of kin for damages
resulting from the death or of injuries to the serviceman if his death or injuries32
are incident to service.
31 The Court noted that some discretionary acts are not protected by the discretionary
function exception because they are not “based on the purposes that the regulatory regime
seeks to accomplish.” If an official engaged in an act protected by the discretionary function
exception drove an automobile in connection with that act and negligently caused an
accident, the exception would not apply. “Although driving requires the constant exercise
of discretion, the official’s decisions in exercising this discretion can hardly be said to be
grounded in regulatory policy.” Id. at 325 n.7.
32 Jayson and Longstreth, supra, note 20, § 5A.09 (footnotes omitted). See, Annotation,
Right of Member of Family of Serviceman to Maintain Action Under Federal Tort Claims
Act (28 USCS §§ 1346(b), 2671-2680) Against United States Based Upon Injuries Sustained
The distinction is between a spouse’s or child’s injury that is caused directly by the
military and a spouse’s or child’s injury that results from the soldier’s
service-connected injury: the former is recoverable but the latter is not. Thus, courts
of appeals have held that the Feres doctrine bars spouses of soldiers from recovering
for their own injuries where such injuries resulted from the soldiers’ injuries that
were caused by the soldiers’ having been ordered into nuclear blast areas.33
Similarly, courts of appeals have held that the Feres doctrine bars recovery by
children born with birth defects that resulted from genetic changes in their fathers
that occurred when they were exposed to radiation while on military duty.34
However, “the Feres doctrine does not bar an action against the United States for a
service-related injury suffered by a veteran as a result of independent post-service
negligence,” such as failure of the government to warn or monitor a veteran who had
been exposed to radiation.35 A district court has held that the Feres doctrine does not
bar suit by the daughter and grandson of a soldier who was the victim of such
negl i gence. 36
Civilians have also been denied recovery against the United States for injuries
caused by atomic testing — denied it on the basis of the discretionary function
exception to the FTCA. (This exception applies to all plaintiffs, so even if the Feres
doctrine were overturned, military personnel would be barred from recovering to the
same extent as civilians in atomic testing cases.) The Supreme Court has not
considered the applicability of the discretionary function exception to atomic testing
cases, but it has declined to review two federal courts of appeals decisions that held
that the discretionary function exception bars recovery in such cases.
In In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d
982, 993 (9th Cir. 1987), cert. denied, 485 U.S. 905 (1988), the court of appeals stated
that “Dalehite is squarely on point.” In both In re Consolidated and Dalehite, “a
detailed and extensive Operation Plan was adopted on orders from the highest levels
of the Executive Department. An integral part of that Plan was an extensive Safety
Plan. . . .” Id. at 994. The plaintiffs in In re Consolidated argued that the negligent
failure of Atomic Energy Commission and military officials to follow safety
guidelines established in the plan, such as decontamination measures and the use of
By Serviceman While on Active Duty, 69 ALR Fed 949.
33 E.g., Hinkie v. United States, 715 F.2d 96 (3d Cir. 1983), cert. denied, 465 U.S. 1023
(1984) (barring a suit for the soldier’s spouse’s miscarriages and children’s birth defects
where these injuries were caused by chromosomal damages resulting from “the Army’s
negligent exposure of their husband and father to harmful levels of radiation in the course
of his former military service,” id. at 98 n.2). The court stated that it sensed the “injustice”
of the result, but that it has “no legal authority, as an intermediate appellate court, to decide
the case differently.” Id. at 97.
35 Broudy v. United States, 722 F.2d 566, 570 (9th Cir. 1983).
36 Seveny v. United States Government, Department of Navy, 550 F. Supp. 653 (D. R.I.
protective clothing and gear, had resulted in the overexposure of many hundreds or
thousands of test participants. The Ninth Circuit held:
The Safety Plan incorporated into the Operation Plan contemplated that
judgments and decisions concerning exposure to radiological hazards and the
degree of protection to be afforded would be made in light of the objectives and
the needs of the test program. Safety decisions, therefore, were part of the policy
decisions made in the conduct of the weapons tests, [ ] and they fall squarely
within the articulation in Dalehite that
[w]here there is room for policy judgment and decision there is
Id. at 995, citing 346 U.S. at 36.
The plaintiffs also argued that the government had been negligent in failing to
warn the plaintiffs “of the dangers to which they had been exposed or to monitor test
participants for health problems resulting from radiation exposure.” 820 F.2d at 996.
The court held:
This is not a case of failing to warn river users of hidden obstructions beneath the
surface; or park users of the risk of flash floods; or a treating physician of his
patient’s dangerous propensities. The kind of “warning” that these [atomic
testing] cases involve . . . entailed a commitment of substantial resources,
including the assignment of a large number of employees and the expenditure of
large sums of money. . . . The program required difficult judgments balancing
the magnitude of the risk from radiation exposure — of which there was only
fragmentary knowledge — against the risks and burdens of a public program.
Those risks included the potential consequences of creating public anxiety and
the health hazards inherent in the medical responses to the warning.
Thus, any decision whether to issue warnings to thousands of test participants . . .
calls for the exercise of judgment and discretion at the highest levels of
government. . . .
The conclusion is inescapable that every aspect of a warning program is a matter
that falls within the discretionary function exception as defined in Dalehite and37
Varig. . . .
In Allen v. United States, 816 F.2d 1417 (10th Cir. 1987), cert. denied, 484 U.S.
1004 (1988), the Tenth Circuit, two months earlier, had reached the same conclusion
as the Ninth Circuit reached in In re Consolidated. The plaintiffs in Allen “singled
out the alleged failure of the government . . . to fully monitor offsite fallout exposure
and to fully provide needed public information on radioactive fallout.” 816 F.2d at
37 Id. at 996-998 (quoting the district court’s opinion). The court’s reference to the levels
of government at which decisions were made should be read in the light of the following
language from the Supreme Court’s decision in Varig (already quoted in footnote 29 of this
report), which the court in In re Consolidated had itself quoted earlier in its opinion (820
F.2d at 995): “it is the nature of the conduct, rather than the status of the actor, that governs
whether the discretionary function exception applies in a given case.”
judgments protected by” the discretionary function exception. 816 F.2d at 1421. The
In the case before us, as in Varig, the government actors had a general statutory
duty to promote safety; this duty was broad and discretionary. In the case before
us it was left to the AEC, as in Varig it was left to the Secretary of
Transportation and the FAA, to decide exactly how to protect public safety. . . .
In the instant case, no evidence was presented of any act or omission of the AEC
or its employees that clearly contravened a specific statutory or regulatory
authority. There was no evidence, for example that the Test Information Officer
failed to give out, or that the Radsafe Officer failed to take a specific radiation
measurement that had been decided upon. Plaintiffs’ entire case rests on the fact
that the government could have made better plans. This is probably correct, but
it is insufficient for FTCA liability.
Id. at 1421, 1424.
The Warner Amendment and the Radiation Exposure
Military and civilian victims of atomic testing have also sought to sue the
government contractors involved in the testing. Under state tort law, a company
engaged in atomic testing would likely be subject to strict liability (liability even in
the absence of negligence) for injuries resulting from such testing, as atomic testing
is an “abnormally dangerous” activity.38 Federal law, however, bars victims of
atomic testing from suing federal government contractors. Section 1631 of P.L. 98-
525, 42 U.S.C. § 2212 (known as the “Warner Amendment”),39 provides that an
action against the United States under the FTCA shall be the exclusive remedy for
injuries “due to exposure to radiation based on acts or omissions by a contractor in
carrying out an atomic weapons testing program under a contract with the United
States.” Under this provision, a contractor’s employees shall be considered federal40
employees for purposes of any lawsuit.
38 See, Prosser and Keeton, THE LAW OF TORTS (5th ed. 1984) § 79, p. 558.
39 This provision was repealed and re-enacted (as the Atomic Testing Liability Act, 42
U.S.C. § 2210 note) by sections 3140 and 3141 of P.L. 101-510. This, according to the
accompanying conference report, was “in order to recodify this section together with the
revised Radiation Exposure Compensation Act. The conferees do not intend for this action
to have any effect whatsoever on pending or past cases involving this provision of law.”stnd
H.Rept. 101-923, 101 Cong., 2 sess. 763 (1990); reprinted in 1990 U.S.C.C.A.N. 3270.
40 The reason for the Warner Amendment was that the government contractors —
provided scientific, engineering and technical support for nuclear tests carried
out by the government and for the government in the exercise of a governmental
function, i.e., providing for the national defense. These organizations did not
order the tests to be performed; they did not set the times or places for the tests;
nor did they direct military or civilian government personnel to participate in
them. It should appear, without question, that these contractors were acting as
the de facto instruments of the United States Government in carrying out a
Thus, the Warner Amendment makes suits against the United States under the
FTCA the exclusive remedy for claims based on atomic testing injuries. This
remedy, however, is illusory, because the Feres doctrine precludes recovery by
military personnel and the discretionary function exception precludes recovery by
anyone.41 The constitutionality of the Warner Amendment has been upheld by two
federal courts of appeals.42 Repeal of the Warner Amendment, it should be noted,
would not necessarily result in liability on the part of contractors; there would still
be the possibility that they could raise the government contractor defense. (On the
government contractor defense, see the final section of this report.)
In 1990, Congress enacted the Radiation Exposure Compensation Act, 42
U.S.C. § 2210 note, a compensation program for victims of atomic testing and
uranium mining. It authorizes $50,000 to be paid to any person who contracted
leukemia or certain listed cancers and was physically present in an area affected by
atmospheric nuclear tests for specified periods from 1951 through 1962. It also
authorizes $75,000 to be paid to any person who contracted leukemia or certain listed
cancers after having participated onsite in an atmospheric nuclear test. Finally, it
provides $100,000 to any person employed in a uranium mine at any time from 1947
to 1971 who contracted lung cancer or a nonmalignant respiratory disease, if he was
exposed to specified levels of radiation. (In none of these cases is a claimant
required to prove that radiation exposure actually caused his disease.) A person who
accepts compensation under the act forfeits all right to sue the United States or any
federal contractor for claims arising out of the same radiation exposure. “This act
was patterned in part on the Radiation-Exposed Veterans Compensation Act of 1988
In the litigious atmosphere that now pervades the United States, especially where
atomic energy matters are concerned, literally thousands of plaintiffs have filed
suits against the operators of the government laboratories that have participated
in the government’s nuclear weapons tests. . . . Plaintiffs are seeking tens of
billions of dollars in damages. Because the contractors are fully indemnified by
the government under the terms of their contracts, the taxpayer will ultimately
bear this burden.
S.Rept. 98-500, 98th Cong., 2nd sess. 376 (1984). Although the contractors were indemnified,
Congress has nevertheless perceived these lawsuits to constitute a threat to the
continued participation of the private contractors in the nuclear weapons program
because the contractors fear the bad publicity generated by the suits.
Hammond v. United States, 786 F.2d 8, 14 (1st Cir. 1986).
41 H.Rept. 99-567, 99th Cong., 2nd sess. 3 (1986), states that “the real effect of the Warner
Amendment is to leave the harmed individuals with no remedy at all.”
42 In re Consolidated United States Atmospheric Testing Litigation, 820 F.2d 982 (9th Cir.
(P.L. 100-321).”43 Department of Justice regulations under the Radiation Exposure
Compensation Act appear at 28 C.F.R. Part 79.
The Intentional Tort Exception
The intentional tort exception, 28 U.S.C. § 2680(h), provides that the FTCA
does not apply to claims:
arising out of assault, battery, false imprisonment, false arrest, malicious
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights.
However, the United States may be held liable for any of the first six torts in this
list if committed by an “investigative or law enforcement officer of the United States
Government.” 28 U.S.C. § 2680(h).44 This exception to the intentional tort
exception was enacted in 1974 and “grew out of widespread publicity given to
43 H.Rept. 101-923, 101st Cong., 2nd sess. 762 (1990); reprinted in 1990 U.S.C.C.A.N. 3269.
44 There are other exceptions to the intentional tort exception. The United States may be
held liable for “misrepresentation or deceit on the part of the [Consumer Product Safety]
Commission or any employee thereof. . . .” 15 U.S.C. § 2053(h)(1)(A). (The CPSC is also
the subject of an exception to the discretionary function exception; see, note 28, supra.) In
addition, several statutes make the intentional tort exception inapplicable to causes of action
arising out of negligence in the performance of medical or legal services by specified federal
employees. If these statutes did not make the intentional tort exception inapplicable, then
the intentional tort exception could bar recovery in malpractice actions arising out of
negligence because “a particular type of claim can be viewed, under traditional concepts,
as one type of tort rather than another, for example as an assault and battery rather thanth
negligence. . . . Illustrative is the case of Moos v. United States [225 F.2d 705 (8 Cir.
1955)] where the claimant entered a Veterans Administration hospital for an operation on
his left leg and hip; the surgeons, instead, erroneously operated on his right leg and hip; the
claim was held barred on the sound technical theory that the unconsented operation on the
right leg and hip constituted an assault and battery and that such was the basis of the claim
even though it may have been accompanied by or preceded by negligence.” Jayson and
Longstreth, supra, note 20, at § 13.06[a]. See also, Franklin v. United States, 992 F.2dth
1492, 1495 (10 Cir. 1993) (“intentional tort exclusion bars a claim for damages based on
the unauthorized performance of surgery. . . . [H]owever . . . , the operation of that exclusion
is nullified . . . by an immunity statute [38 U.S.C. § 4116(f), today § 7316(f)] dealing
specifically with medical tort claims arising out of the actions of Veterans Administration
The statutes that make the intentional tort exception inapplicable in these
circumstances include 10 U.S.C. § 1054(e) (legal malpractice by employees of the
Department of Defense); 10 U.S.C. § 1089(e) (medical malpractice by employees of the
armed forces, National Guard, Department of Defense, United States Soldiers’ and Airmen’s
Home, or Central Intelligence Agency); 22 U.S.C. § 2702(e) (medical malpractice by
Department of State employees); 38 U.S.C. § 7316(f) (medical malpractice by Department
of Veterans Affairs employees); 42 U.S.C. § 233(e) (medical malpractice by Public Health
Service employees); 42 U.S.C. § 2458a(e) (medical malpractice by National Aeronautics
and Space Administration employees).
several incidents in which federal narcotics agents engaged in what a Senate
Committee described as ‘abusive, illegal and unconstitutional “no-knock raids.”’”45
In Sheridan v. United States, 487 U.S. 392 (1988), three naval corpsmen found
a naval enlisted man named Carr unconscious from alcohol consumption and
attempted to take him to a hospital emergency room. Before they reached the
emergency room, Carr regained consciousness, broke away from the corpsmen, and
displayed the barrel of his rifle to them. The corpsmen fled and did not alert any
authority that Carr was inebriated and armed. Carr ended up near a public street and
began shooting at passing vehicles, hitting one of the plaintiffs.
Because of the intentional tort exception, the plaintiffs in Sheridan could not sue
the government based on Carr’s shooting. Therefore, they sued the government
based on the three corpsmen’s negligence in failing to alert authorities as to the threat
posed by Carr. The government argued that the intentional tort exception barred this
claim because, even though it was based on negligence, it was a claim “arising out”
of assault or battery within the meaning of 28 U.S.C. § 2680(h). The Supreme Court
did not rule on the government’s argument because it decided for the plaintiff on
another ground: that the intentional tort exception should “be construed to apply only
to claims that would otherwise be authorized by the basic waiver of sovereign
immunity. . . . The tortious conduct of an off-duty serviceman, not acting within the
scope of his office or employment, does not itself give rise to Government liability,
whether that conduct is intentional or merely negligent.” Id. at 400-401. This is
because the FTCA makes the government liable only for torts committed by an
employee while acting “within the scope of his office or employment.” 28 U.S.C.
§ 1346(b). Thus, since the government could not be liable for Carr’s acts, the
intentional tort exception did not apply to bar a suit based on the negligence of others
that led to Carr’s acts, even if, as the government argued, the suit arose out of Carr’s
intentional tort. Had Carr not been a federal employee at all, the result would have
been the same: since the government could not be liable for Carr’s acts, whether such
acts were negligent or intentional, the intentional tort exception would not apply to
bar a suit based on the negligence of federal employees that led to Carr’s intentional
The Court left open the question whether a suit based on the “negligent hiring,
negligent supervision, or negligent training may ever provide the basis for liability
under the FTCA for a foreseeable assault or battery by a Government employee
[acting within the scope of his employment].” Id. at 403 n.8. On this question, there
was subsequently a split in the federal circuits. See, Billingsley v. United States, 251
F.3d 696, 698 (8th Cir. 2001).
45 Jayson and Longstreth, supra, note 20, at § 13.06[b]. The Attorney General may settle,
for not more than $50,000 in any one case, a claim for damages caused by an investigative
or law enforcement officer as defined in 28 U.S.C. § 2680(h) who is employed by the
Department of Justice acting within the scope of employment that may not be settled under
the FTCA. See 31 U.S.C. §§ 3724 and 3724 note. See also note 18, supra. In addition, the
Tariff Act of 1930 authorizes the Secretary of Homeland Security to settle claims of up to
$50,000 that cannot be settled under the FTCA. 19 U.S.C. § 1630.
Justice Kennedy concurred in the judgment, but expressed the fear “that many,
if not all, intentional torts of Government employees plausibly could be ascribed to
the negligence of the tortfeasor’s supervisors.” Id. at 407.
Suits Against Federal Employees
The Federal Employees Liability Reform and Tort Compensation Act of 1988,
P.L. 100-694 (commonly know as the Westfall Act, after the Supreme Court case it
overturned), amended the FTCA to make it the exclusive remedy for torts committed
by federal employees within the scope of their employment.46 In other words, it
precludes federal employees from being sued for torts committed within the scope
of their employment. 28 U.S.C. § 2679(b)(1).
The Westfall Act, however, provides immunity only from liability under state
tort law; a federal employee may still be sued for violating the Constitution or
violating a federal statute that authorizes suit against an individual. 28 U.S.C.
§ 2679(b)(2). Such cases are barred, however, if the claimant sues the United States
under the FTCA and a judgment in the FTCA case is handed down before a judgment4748
in the case against the employee is handed down. 28 U.S.C. § 2676.
In United States v. Smith, 499 U.S. 160 (1991), the Supreme Court held that the
Westfall Act made federal employees immune from suit under state tort law even
46 This statute overturned Westfall v. Erwin, 484 U.S. 292 (1988), which held that “absolute
immunity from state law tort actions should be available only when the conduct of federal
officials is within the scope of their official duties and that conduct is discretionary in
nature.” Id. at 297-298 (emphasis in original). Prior to enactment of this statute, however,
some federal employees were already immune from suit. For example, 28 U.S.C. § 2679(b),
prior to its amendment by P.L. 100-694, made the FTCA the exclusive remedy for injuries
“resulting from the operation by any employee of the Government of any motor vehicle
while acting within the scope of his office or employment.” (This was known as the Federal
Drivers Act.) Other statutes made the FTCA the exclusive remedy for damages resulting
from legal malpractice by employees of the Department of Defense (10 U.S.C. § 1054), and
medical malpractice by employees of the Department of Veterans Affairs (38 U.S.C. § 7316
(renumbered by P.L. 102-40 from 38 U.S.C. § 4116)), the Department of State (22 U.S.C.
§ 2702), the Public Health Service (42 U.S.C. § 233(a)), the National Aeronautics and Space
Administration (42 U.S.C. § 2458a), or the armed forces, Department of Defense, United
States Soldiers’ and Airmen’s Home, or Central Intelligence Agency (10 U.S.C. § 1089).
47 The case against the employee is barred whether the judgment in the FTCA case is for or
against the United States. Farmer v. Perrill, 275 F.3d 958, 963 n.7 (10th Cir. 2001). If the
judgment in the case against the employee is handed down first, then the plaintiff may
secure judgments on both claims, but may not recover damages more than once. Turner v.
Ralston, 409 F. Supp. 1260 (W.D. Wis. 1976).
48 In Will v. Hallock, 546 U.S. 345 (2006), the Supreme Court held that, if a federal district
court rules on a motion that § 2676 constitutes a bar against a suit against a federal
employee, then 28 U.S.C. § 1291 precludes an appeal of that ruling, as the “collateral order
doctrine” does not apply. By contrast, rulings that reject an employee’s claim of absolute
or qualified immunity are immediately appealable under the collateral order doctrine.
when an FTCA exception precludes recovery against the United States. In this case,
the United States was immune because the claim had arisen in a foreign country.49
If a federal employee is sued under state tort law, in federal or state court, for
conduct that may have occurred within the scope of his employment, then he may
turn over papers that were served on him to the Attorney General, and the Attorney
General may certify that the federal employee “was acting within the scope of
employment at the time of the incident out of which the claim arose.”50 If the
Attorney General makes this certification, the United States is substituted for the
employee as a defendant in the action.51 The Attorney General’s certification
conclusively establishes that the defendant had been acting within the “scope of
office or employment for purposes of remov[ing]” a case from state court to federal
district court.52 If the Attorney General refuses to certify that the federal employee
“was acting within scope of employment,” then the employee may petition the court
in which he was sued for certification that he had been acting within the scope of
employment.53 If the court certifies that he had been acting within the scope of
employment, then the United States will be substituted as a defendant.54 If the court
that made this certification was a state court, then the Attorney General may remove
the case to a federal district court, but if the federal district court finds that the
employee’s actions were not within the scope of employment, then the case must be
remanded to state court.55
The Supreme Court has decided two cases addressing the certification
provisions. In Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), the Supreme
Court held that the Attorney General’s certification that a federal employee acted
within the scope of employment is reviewable in court. The majority opinion
49 As to the immunity for such claims, see text accompanying n.13, supra. The employee
who allegedly committed the tort in this case was a military physician, and claimed
immunity under the Gonzalez Act, 10 U.S.C. § 1089 (see, note 46, supra). The Ninth
Circuit held that the Gonzalez Act protects only military medical personnel who commit
torts within the United States. The Supreme Court did not rule on this issue, because it
found the defendant immune under P.L. 100-694. See also, Annotation, Construction and
Application of Westfall Act Provision Providing Federal Employee Immunity From
Ordinary Tort Suits if Attorney General Certifies that Employee was Acting Within Scope
of Office or Employment at Time of Incident Out of Which Claim Arose (28 USCS §
50 28 U.S.C. § 2679(d)(1).
52 § 2679(d)(2). As noted on page 3 of this report, suits under the FTCA may be heard only
in federal district court.
53 § 2679(d)(3).
When a federal employee is sued for a wrongful or negligent act, the [Westfall
Act] empowers the Attorney General to certify that the employee “was acting
within the scope of his office or employment at the time of the incident out of
which the claim arose. . . .” 28 U.S.C. § 2679(d)(1). Upon certification, the
employee is dismissed from the action and the United States is substituted as
defendant. The case then falls under the governance of the [FTCA]. . . . If,
however, an exception to the FTCA shields the United States from suit, the party
may be left without a tort action against any party.
Id. at 419-420. This is what occurred in this case, so, “[e]ndeavoring to redeem their
lawsuit, plaintiffs . . . sought review of the Attorney General’s scope-of-employment
certification, for if the employee was acting outside the scope of his employment, the
plaintiffs’ tort action could proceed against him. The lower court held the
certification unreviewable.” Id. at 420. The Supreme Court reversed, finding that
“Congress did not address this precise issue unambiguously, if at all,” and “that
judicial review of executive action ‘will not be cut off unless there is persuasive
reason to believe that such was the purpose of Congress.’” Id. at 424.56
In Osborn v. Haley, 127 S. Ct. 881 (2007), a federal employee had been sued
in state court, and the Attorney General had certified that the employee had been
acting within the scope of employment. The federal district court had invalidated the
Attorney General’s certification, finding it improper because the government
maintained that the incident in dispute never happened. The federal district court
then remanded the suit to the state court, thereby preventing the United States from
substituting itself as a defendant. The court of appeals vacated the district court
decision and the Supreme Court affirmed the court of appeals decision. The Supreme
Court held that the Attorney General’s certification was proper and that the United
States must remain as a substitute defendant “unless and until the District Court
determines that the employee, in fact . . . engaged in conduct beyond the scope of his
employment.” 127 S. Ct. at 888. Next, the Supreme Court examined two conflicting
statutory provisions to determine whether a case that the Attorney General had
certified and that had been removed from a state court to a federal district court could
be remanded to the state court. One provision, 28 U.S.C. § 2679(d)(2), states that the
Attorney General’s certification is conclusive for the purposes of removing a case
from a state court to a federal district court. The other provision, 28 U.S.C.
§ 1447(d), bars appellate review of “[a]n order remanding a case to the State court
from which it was removed.” The Supreme Court held that 28 U.S.C. § 2679(d)(2)
56 A hypothetical issue of federal jurisdiction arose in the case, on which there was no
majority opinion. If a suit against a federal employee is brought in state court and the
Attorney General certifies that the employee was acting within the scope of his employment,
the resulting FTCA case must be removed to federal court. Then, if the federal court rejects
the certification and the employee is again made the defendant, what is the basis for federal
jurisdiction? If the plaintiff and the employee are of diverse citizenship, then there is no
problem, but, if they are not, then there arguably is no basis for federal jurisdiction.
However, the plurality opinion found that the fact that, in this hypothetical case, “there was
a nonfrivolous federal question [whether the employee was acting within the scope of his
federal employment], certified by the local U.S. Attorney, when the case was removed to
federal court,” is an adequate basis to find that the case “arises under” federal law (emphasis
in original). Id. at 435. All this was dictum, as there was diversity jurisdiction in the case
before the Court.
controls, so that once an Attorney General certifies, requiring the action to be
removed from state court to federal district court, the federal district court must retain
jurisdiction and cannot remand.
Constitutional Torts: Federal Employees’ Liability
Although the FTCA does not immunize federal employees when they violate the
Constitution, common law sometimes does. Before examining federal employees’
immunity from liability for constitutional torts, however, it is necessary to discuss
their liability for such torts.57 In Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), federal agents, without a warrant, entered and searched the plaintiff’s
apartment and arrested the plaintiff for alleged narcotics violations. A state official
who commits such a tort, in addition to being subject to liability under state tort law,
may be sued under 42 U.S.C. § 1983, which provides that any person who, under
color of any state statute, deprives another person of rights secured by the
Constitution or a federal statute, shall be liable to the person injured. A federal
official who commits a constitutional tort is not subject to liability under state tort
law (because of the Westfall Act), and no statute similar to § 1983 makes federal
officials liable under federal law for violating another person’s constitutional rights.
In Bivens and subsequent cases, however, the Supreme Court held that such a statute
is not necessary for an injured party to recover damages from a federal official who
commits a constitutional tort.58 “Having concluded that petitioner’s complaint states
a cause of action under the Fourth Amendment, supra, at 390-395, we hold that
petitioner is entitled to recover money damages for any injuries he has suffered as a59
result of the agents’ violation of the Amendment.” Id. at 397.
Subsequently, however, the Supreme Court indicated “that such a remedy may
not be available when ‘special factors counselling hesitation’ are present.” Chappell
v. Wallace, 462 U.S. 296, 298 (1983). In Chappell, five Navy enlisted men charged
their superior officers with treating them differently because of their minority race.
Guided by “the Court’s analysis in Feres” (id. at 299), the Supreme Court in
Taken together, the unique disciplinary structure of the Military Establishment
and Congress’ activity in the field constitute “special factors” which dictate that
57 “The Supreme Court uses the term ‘constitutional tort’ for any constitutional violation for
which a court may award damages.” K. Davis, 5 ADMINISTRATIVE LAW TREATISE § 27:1
(2d ed. 1984).
58 In Davis v. Passman, 442 U.S. 228 (1979), the Court held that a Member of Congress
could be found liable for damages for violating the Due Process Clause of the Fifth
Amendment by firing a member of his staff because of her sex. In its opinion the Court
indicated that all “justiciable constitutional rights are to be enforced through the courts.”
Id. at 242.
59 The statute of limitations for Bivens actions has not been addressed by the Supreme Court,
but lower courts have held “that Bivens actions are governed by the same state personal
injury limitations period applicable to [42 U.S.C.] section 1983 actions. . . .” Cook and
Sobieski, 2 CIVIL RIGHTS ACTIONS, ¶ 4.01[B] (2006).
it would be inappropriate to provide enlisted military personnel a Bivens-type
remedy against their superior officers.
Id. at 304.60
In United States v. Stanley, 483 U.S. 669 (1987), the Army had given a
serviceman LSD without his knowledge, which caused him to suffer severe
personality changes that led to his discharge and the dissolution of his marriage. The
Supreme Court indicated that Feres barred his claim against the government, and that
Chappell barred his claim against the officers involved. The plaintiff had sought to
distinguish his case from Chappell on the grounds that, unlike in Chappell,
the defendants in this case were not Stanley’s superior military officers, and
indeed may well have been civilian personnel, and that the chain-of-command
concerns at the heart of Chappell . . . are thus not implicated. Second, Stanley
argues that there is no evidence that this injury was “incident to service.”
Id. at 679-680. The Court found that the second argument was not available to
Stanley because the issue of service incidence had been decided adversely to him
As for his first argument, Stanley and the lower courts may well be correct that
Chappell implicated military chain-of command concerns more directly than do
the facts alleged here. . . . It is therefore true that Chappell is not strictly
controlling, in the sense that no holding can be broader than the facts before the
Id. at 680. However, the Court added:
Since Feres did not consider the officer-subordinate relationship crucial, but
established instead an “incident to service” test, it is plain that our reasoning in
Chappell does not support the distinction Stanley would rely on. . . . Today, no
more than when we wrote Chappell, do we see any reason why our judgment in
the Bivens context should be any less protective of military concerns than it has
been with respect to FTCA suits, where we adopted an “incident to service” rule.
Id. at 680-681. Thus, with respect to injuries incurred incident to service as a result
of constitutional torts, the principle behind the Feres doctrine applies equally to
preclude military personnel from suing either the government under the FTCA or61
federal officials under Bivens.
60 In Bush v. Lucas, 462 U.S. 367, 368 (1983), the Court declined “to authorize a new
nonstatutory damages remedy for federal employees whose First Amendment rights are
violated by their superiors.” The Court’s reason was that “such claims arise out of an
employment relationship that is governed by comprehensive procedural and substantive
provisions giving meaningful remedies against the United States.”
61 The principle behind the Feres doctrine, however, should be distinguished from the
doctrine itself, which applies only to suits against the United States. In Cross v. Fiscus, 830th
F.2d 755, 756 (7 Cir. 1987), the court of appeals wrote: “The doctrine of Stanley and
Chappell tracks Feres. . . . But its source is different. Feres is a construction of a statute.
In addition to situations with “special factors counselling hesitation,”
Bivens-type actions are not permitted “when defendants show that Congress has
provided an alternative remedy which it explicitly declared to be a substitute for
recovery directly under the Constitution and viewed as equally effective.” Carlson
v. Green, 446 U.S. 14, 18-19 (1980) (emphasis in original).62 The Court in Carlson
v. Green allowed a Bivens-type action against a federal prison official for violating
the Cruel and Unusual Punishment Clause of the Eighth Amendment. The defendant
argued that Congress had intended a suit against the United States under the FTCA
as an alternative remedy, but the Court held:
When Congress amended the FTCA in 1974 to create a cause of action against
the United States for intentional torts committed by federal law enforcement
officers, 28 U.S.C. § 2680(h), the congressional comments accompanying that
amendment made it crystal clear that Congress views FTCA and Bivens as63
parallel, complementary causes of action.
Id. at 20.
In subsequent cases, the Supreme Court has continued to limit the availability
of Bivens actions. In FDIC v. Meyer, 510 U.S. 471 (1994), the Court declined “to
extend Bivens to permit suit against a federal agency, even though the agency —
because Congress had waived sovereign immunity — was otherwise amenable to
Stanley and Chappell are constructions of the Constitution based on considerations similar
to those that, the Court believes, influenced Congress when enacting the FTCA. If Congress
amended the FTCA, the principles of Stanley and Chappell would be unaffected — though
Congress could create a federal remedy against service personnel by passing a separate
62 In Carlson v. Green, the Court spoke of “special factors counselling hesitation” and the
availability of an “alternative remedy which is explicitly declared to be a substitute” as
distinct situations in which Bivens actions are unavailable. In Schweiker v. Chilicky, 487
U.S. 412, 423 (1988), the Court said that “the concept of ‘special factors counselling
hesitation . . .’ has proved to include an appropriate judicial deference to indications . . . that
Congress has provided what it considers adequate remedial mechanisms.” In McCarthy v.
Madigan, 503 U.S. 140 (1992), the Court held that, where Congress had not required
exhaustion of remedies, a prisoner could bring a Bivens action solely for money damages
without resorting to an internal grievance procedure.
63 In Castaneda v. United States, No. CV 07-07241 DDD (JCx) (C.D. Cal., March 11, 2008),
the district court, after quoting the statement from Carlson that “Congress views the FTCA
and Bivens as parallel, complementary causes of action,” added that, although 42 U.S.C.
§ 233(a) — cited in note 46, supra — precludes a state tort action against Public Health
Services employees, it does not preclude a Bivens action against them. This is because
§ 233(a) provides that “[t]he remedy against the United States provided by sections 1346(b)
and 2672 of title 28 . . . shall be exclusive of any other civil action”; section 1346(b)(1)
provides, “Subject to the provisions of chapter 171 of this title [emphasis supplied by the
court], the district courts . . . shall have exclusive jurisdiction of [tort claims against the
United States]”; and chapter 171 (the FTCA) includes 28 U.S.C. § 2679(b)(2) — enacted
by the Westfall Act, which is discussed beginning at page 18 of this report — which
provides that federal employees’ immunity from tort liability does not extend to suits for
constitutional violations (i.e., to Bivens actions).
suit.”64 In Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001), the
Court held that Bivens actions may not be brought “against private entities acting
under color of federal law” (id. at 66) — in this case “against a private corporation
operating a halfway house under contract with the Bureau of Prisons” (id. at 63).
Explaining its decisions in both Meyer and Malesko, the Court in Malesko said that
the purpose of Bivens is to deter individual officers, not policymaking entities, from
committing unconstitutional acts. Does this mean that an individual officer of a
private entity acting under color of federal law would be subject to a Bivens action?
The Court in Malesko did not decide the question.
In Wilkie v. Robbins, 127 S. Ct. 2588, 2598 (2007), the Supreme Court
the decision whether to recognize a Bivens remedy may require two steps. In the
first place, there is the question whether any alternative, existing process for
protecting [a constitutionally recognized] interest amounts to a convincing reason
for the Judicial Branch to refrain from providing a new and freestanding remedy
in damages. But even in the absence of an alternative, a Bivens remedy is a
subject of judgment: “the federal courts must make the kind of remedial
determination that is appropriate for a common-law tribunal, paying special heed,
however, to any special factors counseling hesitation before authorizing a new
kind of federal litigation.” [Citations omitted.]
In Wilkie v. Robbins, the plaintiff had sought damages from officials of the Bureau
of Land Management, whom he “accused of harassment and intimidation aimed at
extracting an easement across private property.” Id. at 2593. The Court, applying
the two steps it cited, declined to allow a Bivens action, finding that “[a] judicial
standard to identify illegitimate pressure going beyond legitimately hard bargaining
would be endlessly knotty to work out . . . and would invite an onslaught of Bivens
actions.” Id. at 2604.
The Practical Side of Bivens Actions
According to one commentator, “[i]ndividual liability under Bivens is fictional
. . . because the federal government in practice functions as the real party in interest,
paying for representation and reimbursing the sued individuals when they settle or
“Bivens has, however,” the commentator continues,
64 Correctional Services Corporation v. Malesko, 534 U.S. 61, 69 (2001).
65 Cornelia T.L. Pillard, Taking Fiction Seriously: The Strange Results of Public Officials’
Individual Liability Under Bivens, 88 Georgetown L.J. 65 (1999). Department of Justice
regulations at 28 C.F.R. § 50.15(a) provide: “Under the procedures set forth below, a federal
employee . . . may be provided representation in civil, criminal, and Congressional
proceedings in which he is sued, subpoenaed, or charged in his individual capacity . . . when
the actions for which representation is requested reasonably appear to have been performed
with the scope of the employee’s employment and the Attorney General or his designee
determines that providing representation would otherwise be in the interests of the United
proved to be a surreptitiously progovernment decision. Although it appears to
provide a mechanism for remedying constitutional violations, its application has
rarely led to damages recoveries. Government figures reflect that, out of
approximately 12,000 Bivens claims filed between 1971 and 1985, Bivens
plaintiffs actually obtained a judgment that was not reversed on appeal in only
four cases. While similar figures have not been systematically kept since 1985,
recoveries from both settlements and litigated judgments continue to be
extraordinarily rare. According to one estimate, plaintiffs obtain a judgment
awarding them damages in a fraction of one percent of Bivens cases and obtain66
a monetary settlement in less than one percent of such cases.
Qualified Immunity to Bivens Actions
Having summarized the law governing federal employees’ liability for
constitutional torts, we return to the question of their common law immunity from
liability for such torts. (The FTCA, it will be recalled, gives them immunity only
from state tort law.) Such immunity is generally qualified, yet “[q]ualified immunity
is undoubtedly the most significant bar to constitutional tort actions.”67 In Butz v.
Economou, 438 U.S. 478, 507 (1978), the Supreme Court held
that, in a suit for damages arising from unconstitutional action, federal executive
officials exercising discretion are entitled only to the qualified immunity
specified in Scheuer, subject to those exceptional situations where it is
demonstrated that absolute immunity is essential for the conduct of public
In Scheuer v. Rhodes, 416 U.S. 232, 247-248 (1974), referred to in this
quotation, the Supreme Court held that state executive officers are immune from
liability under 42 U.S.C. § 1983
in varying scope, . . . the variation being dependent upon the scope of discretion
and responsibilities of the office and all the circumstances as they reasonably
appeared at the time of the action on which liability is sought to be based. It is
the existence of reasonable grounds for the belief formed at the time and in light
of the circumstances, coupled with good-faith belief, that affords a basis for
qualified immunity of executive officers for acts performed in the course of
Because, under Butz, the Scheuer standard applies to federal as well as to state
officials, if a federal official, in the exercise of a discretionary function, violates a
person’s constitutional rights, he may be subject to liability, even though the
discretionary function exception of the FTCA would preclude liability on the part of
66 Id. at 66 (footnotes omitted).
67 Id. at 80.
the government.68 Congress, however, has the power to grant additional immunity to
federal officials. See, Butz, 438 U.S. at 500.
The Government Contractor Defense
In Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988), the Supreme
Court held that “uniquely federal interests” in the government’s procurement of
equipment require that a “government contractor defense” be available in certain
cases. This is a defense that manufacturers may assert in products liability cases
alleging design defects. These are cases, brought under state law, in which the
plaintiff alleges that his injuries were caused by a product that was defective in that
the manufacturer failed to use the safest feasible design for the product. In its
defense, the manufacturer may assert that it manufactured the product pursuant to a
government contract and that the design it used was required by contract
specifications. In Boyle, the Supreme Court held that, notwithstanding state law,
“federal common law” requires that the government contractor defense be available69
in certain cases. This is because “[t]he imposition of liability on Government
contractors will directly affect the terms of Government contracts: either the
contractor will decline to manufacture the design specified by the Government, or it
will raise its price. Either way, the interests of the United States will be directly
affected.” Id. at 507.
The Court found that displacement of state law will occur only where “a
‘significant conflict’ exists between an identifiable ‘federal policy or interest and the
[operation] of state law,’ . . . or the application of state law would ‘frustrate specific
objectives’ of federal legislation. . . .” Id. A significant conflict may exist, the Court
68 In Anderson v. Creighton, 483 U.S. 635, 641 (1987), the Supreme Court applying the Butz
qualified immunity standard, held that a federal law enforcement officer is not liable for
participating in a search that violates the Fourth Amendment if “he could, as a matter of law,
reasonably have believed that the search . . . was lawful.” In Nixon v. Fitzgerald, 457 U.S.
731, 750, 754 (1982), the Court held that “[t]he President’s unique status under the
Constitution” entitles him to absolute immunity from “private suits for damages based on
[his] official acts.” (He is not immune, however, for actions allegedly taken before his term
began. Clinton v. Jones, 520 U.S. 681 (1997)). In Harlow v. Fitzgerald, 457 U.S. 800
(1982), the Court held that Presidential aides are entitled only to qualified immunity;
specifically, they are immune unless their actions violate clearly established law. In
Mitchell v. Forsyth, 472 U.S. 511 (1985), the Court held that the holding in Harlow applied
even for acts performed by the Attorney General in the interest of national security.
Additional discussion of the immunity of federal officials for constitutional torts may be
found in Cook and Sobieski, 1 CIVIL RIGHTS ACTIONS ¶ 2.11 (2006).
69 The Court noted “that a few areas, involving ‘uniquely federal interests,’ . . . are so
committed by the Constitution and laws of the United States to federal control that state law
is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent
explicit statutory directive) by the courts — so-called ‘federal common law.’” Id. at 504.
Justice Brennan, in his dissent in Boyle, objected that “[j]ust as ‘[t]here is no federal pre-
emption in vacuo, without a constitutional text or a federal statute to assert it,’ . . . federal
common law cannot supersede state law in vacuo out of no more than an idiosyncratic
determination by five Justices that a particular area is ‘uniquely federal.’” Id. at 517.
found, where “the state-imposed duty of care that is the asserted basis of the
contractor’s liability . . . is precisely contrary to the duty imposed by the Government
contract.” Id. at 509. In some cases, however, the state-imposed duty of care will not
conflict with the federal contract, or, even if it does, will not be significant, as where
“a federal procurement officer orders, by model number, a quantity of stock [items
that happen to have a design defect].” Id. In such cases, the government contractor
defense would not be available.
Boyle was a suit by the father of a Marine who had been killed incident to
service in a helicopter accident, allegedly caused by the helicopter’s having been
defectively designed. The lower court had allowed the government contractor
defense on the basis of the reasoning behind the Feres doctrine. As the Supreme
Court explained: “Military contractor liability would conflict with this doctrine, the
Fourth Circuit reasoned, since the increased cost of the contractor’s tort liability
would be added to the price of the contract, and ‘[s]uch pass-through costs would . . .
defeat the purpose of the immunity for military accidents conferred upon the
government itself.’” Id. at 510.70 The Supreme Court did not adopt the Feres
doctrine as the basis for the government contractor defense:
Since that doctrine covers only service-related injuries, and not injuries caused
by the military to civilians, it could not be invoked to prevent, for example, a
civilian’s suit against the manufacturer of fighter planes, based on a state tort
theory, claiming harm from what is alleged to be needlessly high levels of noise
produced by jet engines. Yet we think that the character of the jet engines the
Government orders for its fighter planes cannot be regulated by state tort law, no
more in suits by civilians than in suits by members of the Armed Services.
Id. at 510-511. Rather, the Court found that the reasoning behind the discretionary
function exception furnished a better basis for the government contractor defense:
We think that the selection of the appropriate design for military equipment to
be used by our Armed Forces is assuredly a discretionary function within the
meaning of this provision. . . . The financial burden of judgments against the
contractors would ultimately be passed through, substantially if not totally, to the
United States itself, since defense contractors will predictably raise their prices
to cover, or to insure against, contingent liability for the Government-ordered
designs. . . . In sum, we are of the view that state law which holds Government
contractors liable for design defects in military equipment does in some
70 The Supreme Court has held that in cases in which the United States is immune under
Feres, a government contractor that is held liable may not recover indemnification from the
United States because to allow indemnification would make the United States indirectly
liable to the injured party. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666
(1977). The Federal Employees’ Compensation Act precludes federal civilian employees
from suing under the FTCA for work-related injuries. 5 U.S.C. § 8116(c). The Supreme
Court has held that, if a federal civilian employee recovers damages from a government
contractor for a work-related injury, the government contractor may recover indemnification
from the United States. The Court did not follow its reasoning in Stencel because, unlike
in the military context of Stencel, “[i]t is clear that the Government has waived its sovereign
immunity here.” Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 197 n.8 (1983).
circumstances present a “significant conflict” with federal policy and must be
Id. at 511-512. Delineating these circumstances, the Court ruled:
Liability for design defects in military equipment cannot be imposed, pursuant
to state law, when (1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those specifications; and (3) the
supplier warned the United States about the dangers in the use of the equipment
that were known to the supplier but not to the United States. The first two of
these conditions assure that the suit is within the area where the policy of the
“discretionary function” would be frustrated — i.e., they assure that the design
feature in question was considered by a Government officer, and not merely by
the contractor itself. The third condition is necessary because, in its absence, the
displacement of state tort law would create some incentive for the manufacturer
to withhold knowledge of risks . . . [thereby] cutting off information highly
relevant to the discretionary decision.
Id. at 512.
Although the defendant in Boyle was a military contractor, and the Court
throughout its opinion refers to military equipment, the fact that it based its opinion
on the discretionary function exception and not on the Feres doctrine seems to
indicate that the government contractor defense is available to both civilian and
military contractors. In Nielson v. George Diamond Vogel Paint Co., 892 F.2d 1450
(9th Cir. 1990), the court acknowledged that the Supreme Court’s reliance on the
discretionary function exception meant that the government contractor defense can
in principle apply to civilian equipment. “Yet,” it added, “the policy behind the
defense remains rooted in considerations peculiar to the military.” Id. at 1455. In the
case before it, which involved civilian equipment, it found “no reason to hold that the
application of state law would create a ‘significant conflict’ with federal policy
requiring a displacement of state law.” Id. There is currently a split in the circuits
over the applicability of the government contractor defense to non-military
In Hercules, Inc. v. United States, 516 U.S. 417 (1996), the Supreme Court
rejected a claim by Agent Orange manufacturers that they were entitled to
reimbursement from the government for the costs of defending and settling tort
claims brought against them by Vietnam veterans who were injured by the chemical.
The government had “prescribed the formula and detailed specifications for
manufacture” (id. at 419), but the settlement with the veterans occurred before Boyle
established the government contractor defense.
The manufacturers sued the United States under the Tucker Act, 28 U.S.C.
§§ 1346(a), 1491(a), which authorizes suits against the United States founded upon
“any express or implied contract.” They alleged an implied agreement by the
71 See, Sean Watts, Boyle v. United Technologies Corp. and the Government Contractor
Defense: An Analysis Based on the Current Circuit Split Regarding the Scope of the
Defense, 40 William and Mary Law Review 687 (1999).
government to reimburse them for tort liability, and a breach of the contractual
warranty of specifications. As to the first, the Court held that there was no contract
either express or implied in fact; as to the second, the Court held that the government
“warrants that the contractor will be able to perform the contract satisfactorily if it
follows the specifications” (id. at 425), but that this warranty does not extend to
third-party claims against the contractor.