Finding that declaring the government immune from a suit permissible under the law enforcement proviso due to the discretionary function exception “would result in judicial repeal of the law enforcement proviso by rendering its authorization of suits for malicious prosecution, which frequently arise out of, or in connection with discretionary acts, superfluous.”
How later courts described this case
- Finding that declaring the government immune from a suit permissible under the law enforcement proviso due to the discretionary function exception “would result in judicial repeal of the law enforcement proviso by rendering its authorization of suits for malicious prosecution, which frequently arise out of, or in connection with discretionary acts, superfluous.”
- concluding that “if the law enforcement proviso is to be more than an illusory — now you see it, now you don’t — remedy, the discretionary function exception cannot be an absolute bar which one must clear to proceed under § 2680(h)”
- concluding that action by a government agent “does not fall within the discretionary function exception of § 2680(a) when governmental agents exceed the scope of their authority as designated by statute or the Constitution.”
- rejecting idea that discretionary function hurdle must always be overcome because “[such] construction of the statute would result in judicial repeal of the law enforcement proviso by rendering its authorization of suits for malicious prosecution, which frequently arise out of, or in connection with discretionary acts, superfluous”
Written by the judges who cited it.
Distinguished
Distinguished by Campos v. United States, 226 F. Supp. 3d 734 (2016)
Another Fifth Circuit panel later relied on Sutton to hold that the discretionary function exception was inapplicable to conduct that a plaintiff alleged violated the Fourth and Fifth Amendments.
The opinion
*1301 EDITH H. JONES, Circuit Judge,
concurring:
I write separately to emphasize what I believe is most salient in the majority’s careful exposition of 28 U.S.C. §§ 2680 (a) and (h): these sections of the FTCA must be harmonized. In achieving harmony, a task made no simpler by Congress’s draftsmanship and the sketchy legislative history of the law enforcement proviso, it is not necessary to conclude with the majority that “even Bivens and Collinsville would not pass muster” if the law enforcement proviso, § 2680(h), is subject to the discretionary function exception, § 2680(a). As the majority elsewhere observe, this court has held that violations of agency regulations do not fall within the discretionary function exception so as to immunize the federal government from tort liability. See, e.g., Collins v. United States, 783 F.2d 1225 (5th Cir.1986).
What I believe will require particular sensitivity in this task of statutory construction is preserving prosecutorial and discretionary law enforcement immunity. Compare Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841 , 88 S.Ct. 76 , 19 L.Ed.2d 106 (1967) (decisions on when, where and against whom to prosecute are discretionary under § 2680(a)); Gray v. Bell, 712 F.2d 490, 505 (D.C.Cir.1983) (“Although the concepts of ‘discretion’ in official immunity law and under the FTCA are not of identical scope, they are similar and may have a common origin”). In law enforcement, while the opportunities for government abuse abound, the incentive for oppressive use of FTCA lawsuits is powerful and pervasive. What better way to “get even” with one’s accuser than to file suit against the government on account of- his investigatory conduct? Such lawsuits are hardly less deleterious to conscientious law enforcement than are actions seeking to impose personal liability, because they equally threaten careers and reputations, divert official time and resources, and imperil impartial decisionmak-ing. The doctrines of absolute prosecutorial and qualified official immunity from personal liability are essential to shield the law enforcement community from unwarranted interference with their vital functions. See Harlow v. Fitzgerald, 457 U.S. 800, 806 , 102 S.Ct. 2727, 2732 , 73 L.Ed.2d 396 (1982). The discretionary function exception to the Federal Tort Claims Act should perform a similar role as the courts continue to interpret the law enforcement proviso. The panel’s use of the Elliott v. Perez pleading standard in cases involving §§ 2680(a) and (h) is a step in the direction of creating the necessary harmony.