Amicus Curiae Brief — United States Postal Service, et al., Petitioners v. Lebene Konan

Supreme Court briefAug 20, 2025

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No. 24-351

In The

Supreme Court of the United States

UNITED STATES POSTAL SERVICE, ET AL.,

Petitioners,

LEBENE KONAN,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF INSTITUTE FOR JUSTICE

AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

Jaba Tsitsuashvili

Counsel of Record

Anya Bidwell

Patrick Jaicomo

INSTITUTE FOR JUSTICE

901 N. Glebe Rd., Ste. 900

Arlington, VA 22203

(703) 682-9320

jtsitsuashvili@ij.org

Counsel for Amicus Curiae

Table of Contents

Table of Authorities ................................................... ii

Interest of Amicus Curiae ...........................................1

Introduction .................................................................2

Summary of Argument ...............................................3

Argument.....................................................................6

I. The FTCA stands alone in approximating our

original design of meaningful federal

accountability. ..................................................6

II. The Court should reject the government’s

efforts, here and elsewhere, to dismantle the

FTCA’s role as a bulwark against the

ahistorical elevation of federal officials above

the law. .............................................................9

Conclusion ................................................................. 15

Table of Authorities

Cases

Biden v. Nebraska,

600 U.S. 477 (2023)..........................................3, 10

Buchanan v. Barr,

71 F.4th 1003 (D.C. Cir. 2023) ............ 3, 4, 6–8, 14

Byrd v. Lamb,

990 F.3d 879 (5th Cir. 2021)..........................13–14

Carter v. United States,

145 S. Ct. 519 (2025)............................................12

Cervantes v. United States,

330 F.3d 1186 (9th Cir. 2003)................................9

Cross v. Buschman,

2024 WL 3292756 (3d Cir. July 3, 2024)...............8

Dolan v. USPS,

546 U.S. 481 (2006).................................. 2–3, 9–10

Egbert v. Boule,

596 U.S. 482 (2022)................................................8

Ex parte Jackson,

96 U.S. 727 (1878)..................................................2

Feliciano v. Dep’t of Transp.,

145 S. Ct. 1284 (2025)............................................3

iii

Hernandez v. Mesa,

589 U.S. 93 (2020)..................................................8

King v. Brownback,

144 S. Ct. 10 (2023)..............................................11

King v. United States,

2017 WL 6508182 (W.D. Mich. Aug. 24, 2017) ...12

Martin v. United States,

145 S. Ct. 1689 (2025)......................................6, 10

Mohamud v. Weyker,

144 F.4th 1099 (8th Cir. 2025) ............................12

Rise v. Bagshaw,

2025 WL 1380478 (D.D.C. May 13, 2025).............8

Tanzin v. Tanvir,

592 U.S. 43 (2020)..............................................5, 7

United States v. Lee,

106 U.S. 196 (1882)................................................5

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023)..............................9, 11

Statutes

28 U.S.C. 2674 .....................................................11–12

28 U.S.C. 2679(b)(1) ....................................................7

28 U.S.C. 2679(b)(2)(A) ...........................................7–8

Other Authorities

Amar, Of Sovereignty and Federalism, 96 Yale L.J.

1425 (1987) .............................................................4

Baude, Bivens Liability and Its Alternatives, The

Volokh Conspiracy (Feb. 27, 2020)......................14

Blackstone, Commentaries on the Laws of England

(1765) ......................................................................4

Considering the Role of Judges Under the

Constitution of the United States: Hearing Before

the S. Comm. on the Judiciary, 112th Cong. 6–7

(2011) ....................................................................14

Engdahl, Immunity and Accountability for Positive

Governmental Wrongs, 44 U. Colo. L. Rev. 1

(1972) ......................................................................4

Jaicomo & Bidwell, Unqualified Immunity and the

Betrayal of Butz v. Economou: How the Supreme

Court Quietly Granted Federal Officials Absolute

Immunity for Constitutional Violations, 126 Dick.

L. Rev. 719 (2022) ..............................................4, 7

Levitan, Before lecture on war powers, Gorsuch

laments public’s lack of knowledge of the

judiciary, SCOTUSblog (Oct. 19, 2018) ..............14

Interest of Amicus Curiae 1

The Institute for Justice (IJ) is a nonprofit publicinterest law firm that defends the foundations of a

free society by securing greater protection for

individual liberty. Central to that mission is

accountability for rights violations by government,

including federal officials—a key component of our

original constitutional design. IJ pursues those goals

through its Project on Immunity and Accountability.

IJ litigates federal accountability cases across the

country, including two recent FTCA arguments before

this Court. See Martin v. United States (24-362);

Brownback v. King (19-546). IJ also files amicus briefs

in cases of federal accountability before this Court.

E.g., Egbert v. Boule, Brief of Amicus Curiae Institute

for Justice, 2022 WL 296925 (U.S. Jan. 26, 2022);

Tanzin v. Tanvir, Brief of Amicus Curiae Institute for

Justice, 2020 WL 774437 (U.S. Feb. 12, 2020); see

Hernandez v. Mesa, 589 U.S. 93, 111 n.9 (2020) (citing

IJ’s brief regarding the Westfall Act and Bivens). And

IJ publishes scholarship on federal accountability

doctrine. E.g., Jaicomo & Bidwell, Unqualified

Immunity and the Betrayal of Butz v. Economou: How

the Supreme Court Quietly Granted Federal Officials

Absolute Immunity for Constitutional Violations, 126

Dick. L. Rev. 719, 723–729 (2022). This FTCA case—

regarding allegations of intentional discrimination

and property deprivation by federal officials—raises

those recurring accountability concerns.

1 No counsel for a party authored this brief in whole or in

part, and no person other than amicus curiae or its counsel made

a monetary contribution to fund the preparation or submission

of this brief.

Introduction

This case is about more than mail. It’s about the

continued existence of a judicial remedy when federal

officials inflict intentional harm. For that, individual

damages actions were a defining feature of our

founding-era constitutional order. The FTCA now

stands essentially alone for such action. So the Court

should be particularly wary of the government’s

efforts to nullify the statute’s remedial text and

purpose at every turn—in this case, by overreading

the postal exception’s limited terms.

Ms. Konan’s and her tenants’ receipt of mail, as

well as the efficient functioning of the postal service,

are undoubtedly important. Yet, more fundamentally:

As this Court recognized in 1878, that system must

function “consistently with rights reserved to the

people, of far greater importance than the

transportation of the mail.” Ex parte Jackson, 96 U.S.

727, 732. Such preeminent rights include those at

issue here: freedom from discrimination and freedom

from unwarranted property deprivation. Against that

backdrop, the Court should reject the government’s

misreading of the FTCA in an effort to elide the

difference between routine errors in mail delivery (the

postal exception) versus an atypical abuse of the

postal system to intentionally violate individual

rights (this case). Accord Dolan v. USPS, 546 U.S.

481, 486 (2006) (rejecting the government’s effort to

stretch the postal exception “to the outer limits of its

definitional possibilities” because “[i]nterpretation of

a word or phrase depends upon reading the whole

statutory text, considering the purpose and context of

the statute, and consulting any precedents or

authorities that inform the analysis”).2

As described below, the current remedial

landscape typically means it’s the FTCA or nothing

when it comes to remedying federal harm. This Court

should not countenance the government’s efforts to

keep moving the needle toward nothing by

misdefining or acontextualizing the FTCA’s terms (as

Ms. Konan’s brief thoroughly explains the

government has done here). With the nation’s original

remedial

structure

for

federal

wrongdoing

significantly altered and the FTCA placed front and

center, it’s crucial for this Court to reject the

government’s unyielding efforts (this case included) to

render that remedial statute meaningless and place

federal officials above the law. Indeed, reading the

FTCA’s exceptions and the Westfall Act to eliminate

founding-era individual tort claims and replace them

with nothing (as the government’s position here

implies) would itself raise serious constitutional

concerns. See Buchanan v. Barr, 71 F.4th 1003, 1015

& n.4 (D.C. Cir. 2023) (Walker, J., concurring)

(collecting authorities). Those are among the legal

considerations, detailed more fully below, that should

“inform the analysis” here. Dolan, 546 U.S. at 486.

Summary of Argument

The Court should not countenance or create a legal

regime that effectively places federal officials above

2 See Feliciano v. Dep’t of Transp., 145

S. Ct. 1284, 1293

(2025) (“Context plays a vital role when interpreting statutes.”);

Biden v. Nebraska, 600 U.S. 477, 512 (2023) (Barrett, J.,

concurring) (“Context also includes common sense[.]”).

the law by artificially constraining the FTCA, which

today is the only meaningfully available judicial

remedy for federal wrongdoing. “If federal officers had

been above the law at the Founding, the new rights

won at Yorktown and guaranteed by the Bill of Rights

would have been significantly declawed.” Buchanan,

71 F.4th at 1015–1016 (Walker, J., concurring). Or, as

Blackstone put it: Without a method for “recovering

and asserting” fundamental rights, “in vain would

rights be declared, in vain directed to be observed.” 1

Commentaries on the Laws of England 55–56 (1765).

Unsurprising, then, that the founding-era Court

regarded “effective judicial redress for positive

governmental wrongs” “as paramount and essential

to American constitutional government.” Engdahl,

Immunity

and

Accountability

for

Positive

Governmental Wrongs, 44 U. Colo. L. Rev. 1, 27

(1972); see Jaicomo & Bidwell, Unqualified Immunity

and the Betrayal of Butz v. Economou: How the

Supreme Court Quietly Granted Federal Officials

Absolute Immunity for Constitutional Violations, 126

Dick. L. Rev. 719, 723–729 (2022) (discussing

illustrative founding-era cases ensuring federal

accountability). To that end, “[f]or most of our history,

state tort suits were the primary mechanism for

holding federal officials accountable.” Buchanan, 71

F.4th at 1014 (Walker, J., concurring). Indeed, the

Bill of Rights itself “presupposed ‘a general backdrop

of private law’ causes of action to vindicate ‘primary

rights of personal property and bodily liberty.’” Id. at

1015 (quoting Amar, Of Sovereignty and Federalism,

96 Yale L.J. 1425, 1507 (1987)).

Today, however, that original understanding of

the primacy of federal accountability—and of the

judiciary as its mechanism—is precarious. Below, we

start with a brief overview of the path by which the

FTCA became essentially the sole approximation of a

founding-era accountability regime (part I). Then, we

argue that the Court should account for that altering

of the historical accountability default by refusing to

compromise the FTCA’s remedial text and purpose,

and that the Court should avoid acquiescing in the

executive branch’s consistent (and consistently

dubious) efforts to treat the statute as a nullity (this

case included) (part II).

By refusing to cosign the government’s desire to

eviscerate federal accountability, the Court does not

usurp legislative power. It simply acts in accordance

with original constitutional design. That design

treated the awarding of damages for federal

wrongdoing as the judiciary’s workaday trade. See

Tanzin v. Tanvir, 592 U.S. 43, 52 (2020). And that

design was on purpose. As this Court put it, an

alternative framework—in which “courts cannot give

remedy when the citizen has been deprived of his

property by force”—would flout this nation’s

character and would “sanction[] a tyranny which has

no existence in the monarchies of Europe, nor in any

other government which has a just claim to wellregulated liberty and the protection of personal

rights.” United States v. Lee, 106 U.S. 196, 220–221

(1882).

Happily, as Ms. Konan explains, the postal

exception does not tell the Court to go down the

government’s ahistorical path here. At the threshold

though, the Court should bear in mind that that’s

where the government is trying to take it in every

case—based on shaky reasoning that, unfortunately,

the lower courts too often abide. This Court recently

sent a signal against such practices. See Martin v.

United States, 145 S. Ct. 1689, 1700–1702 (2025)

(rejecting a Supremacy Clause bar to FTCA liability).

It should send another here.

Argument

The FTCA stands alone in approximating

our original design of meaningful federal

accountability.

Today, the FTCA is the sole meaningful

approximation of our original constitutional design,

which was intended to guard against the treatment of

federal officials as above the law. What follows is a

short history of how that came to be—by repackaging

state-law tort actions against individual federal

officials into state-law tort actions against the

government, while also leaving constitutional tort

actions against individual officials to act as a parallel

remedial route, but then all but reading the latter out

of existence.

“The ratification debates suggest that the Framers

thought state tort suits would be an important check

against federal misconduct. * * * Reflecting that

approach, the First Congress understood ‘that under

the new federal system, litigants would . . . be able to

file common-law claims against federal officials for

wrongdoing in the course of their duties.’ * * * Federal

officers would not be above the law because they

would be subject to the same common law as private

citizens.” Buchanan, 71 F.4th at 1014–1015 (Walker,

J., concurring) (citations omitted). “These commonlaw causes of action remained available through the

19th century and into the 20th.” Tanzin, 592 U.S. at

49 (collecting cases). The judiciary brought a strictliability approach to such cases—deciding liability

and letting Congress decide on the back end whether

to indemnify tortfeasor federal officials. See Jaicomo

& Bidwell, 126 Dick. L. Rev. at 723–733.

But, in a sea change from that personalliability/congressional-indemnity system, the 1988

Westfall Act “generally prohibit[ed] tort victims from

bringing state tort suits against federal officers,

forcing victims instead to pursue the limited remedies

in the FTCA” against the government as substitute

defendant. Buchanan, 71 F.4th at 1016 (Walker, J.,

concurring) (citing 28 U.S.C. 2679(b)(1)).

The Westfall Act did, however, preserve against

federal officials the availability of “a civil action * * *

brought for a violation of the Constitution of the

United States.” 28 U.S.C. 2679(b)(2)(A). While Judge

Walker, Judge Matey, scholars, and litigants (your

amicus among them) are currently arguing in the

lower courts that that provision preserves against

individual officials certain state common-law torts

and/or state statutory causes of action (i.e., those that

are premised on federal constitutional violations), the

district courts have thus far rejected those arguments

and held that the provision preserves only Bivens

claims. See Buchanan, 71 F.4th at 1016–1017

(Walker, J., concurring) (summarizing arguments

and literature against reading § 2679(b)(2)(A)’s

individual-liability provision “as a good-for-Bivensonly rule”); Cross v. Buschman, 2024 WL 3292756, at

*5 n.12 (3d Cir. July 3, 2024) (Matey, J., concurring)

(echoing Judge Walker’s argument that a state-lawpreserving reading of the provision “finds support in

the text of the statute, accords with Founding-era

principles of officer accountability, and closes a

remedial gap”); Rise v. Bagshaw, 2025 WL 1380478,

at *14 (D.D.C. May 13, 2025) (collecting district court

cases rejecting the provision’s preservation of statelaw claims and holding that it preserves only Bivens

claims).

Those ostensibly preserved Bivens claims,

meanwhile, have become virtually impossible to

maintain. See generally Egbert v. Boule, 596 U.S. 482

(2022); id. at 502–504 (Gorsuch, J., concurring in

judgment); but see Hernandez v. Mesa, 589 U.S. 93,

111 n.9 (2020) (Westfall Act “left Bivens where it

found it” in 1988). 3

The upshot: Redress for rights violations by

federal officials currently falls all but exclusively in

the FTCA’s purview. Next, we turn to the

government’s efforts to perpetually shrink the

statute’s

redressability

aperture—too

often

To be clear, we disagree with much about the current

treatment of the Bivens remedy. For example: Where Congress

“left Bivens” in 1988 via § 2679(b)(2)(A) was much more robust

than current treatment of the remedy admits. See Egbert, Brief

of Amicus Curiae Institute for Justice, 2022 WL 296925, at *22–

26 (U.S. Jan. 26, 2022). But we must acknowledge current

doctrinal reality.

successfully in the lower courts. We urge this Court to

keep the frame open, in this case and those to come.

II.

The Court should reject the government’s

efforts, here and elsewhere, to dismantle

the FTCA’s role as a bulwark against the

ahistorical elevation of federal officials

above the law.

“With Bivens sharply limited,” victims of federal

harm “must increasingly rely on the FTCA to

vindicate their constitutional rights. They, the

government, and the courts would all benefit from

clearer guidance” regarding the statute’s scope. Xi v.

Haugen, 68 F.4th 824, 844 (3d Cir. 2023) (Bibas, J.,

concurring) (referring to uncertainty regarding the

scope of the discretionary-function exception). The

form that guidance should take: a signal to the

government and the lower courts that reading the

FTCA and its exceptions is not an exercise in

creatively dismantling the statute’s remedial text and

purpose. See Cervantes v. United States, 330 F.3d

1186, 1190 (9th Cir. 2003) (“In asserting the detention

of goods exception as its defense, rather than

compensating a plaintiff it has seriously wronged, the

United States thumbs its nose at its obligation to see

that justice is done. The Supreme Court long ago

pronounced the special obligation of the United States

Attorney to serve the interests of justice[.]”).

Simply put, the FTCA approximates the original

design described in part I above (state tort actions as

a federal accountability mechanism), with a twist:

government as defendant, with certain carefully

drawn exceptions. See Dolan, 546 U.S. at 486–491

(rejecting the government’s efforts to have the

exceptions swallow the statute). The government and

the lower courts, however, tend to misread the FTCA

as a series of landmines designed to leave victims

holding the bag. In doing so, they not only blow up the

statute’s text—they also improperly ignore the

“[b]ackground legal conventions” of federal

accountability discussed above that “are part of the

statute’s context.” Biden v. Nebraska, 600 U.S. 477,

511–512 (2023) (Barrett, J., concurring).

Start with this case. As Ms. Konan explains, the

government urges a reading of “miscarriage” that it

knows would render “superfluous” the postal

exception’s other two terms, Resp. Br. 21, and it urges

a reading of “loss” that it admits would invert the

perspective of that one term as distinct from the other

two, “contra basic syntax,” Resp. Br. 33. Those tactics

violate basic precepts of construction. Yet, as

illustrated by the circuit split that gave rise to this

case, lower courts often cannot help but go along.

That’s what happened in 2009, when the Eleventh

Circuit took the “outlier position” that the Supremacy

Clause (which ensures the primacy of federal law)

somehow barred the viability of claims under the

FTCA (a federal law). Martin, 145 S. Ct. at 1700. By

this year, even the government came around as to

that issue, and this Court rightly fixed the error. Id. 4

Of course, the government proceeded to argue that the

discretionary-function exception nevertheless eliminates

liability when federal officers decline to “look at the address of

the house before [they] knock down the door.” Martin, Tr. of Oral

Arg. at 37 (U.S. Apr. 29, 2025).

Similar instances remain. For example, the

government has convinced two courts of appeals to

hold (contra seven others) that federal officials have

discretion to violate constitutional rights (and thereby

evade FTCA accountability via the discretionaryfunction exception). See Xi, 68 F.4th at 838 n.10

(collecting cases). The government also convinced at

least one district court to import qualified immunity’s

judge-made “clearly established” test into the

constitutional analysis under the discretionaryfunction exception (before being reversed on appeal).

Id. at 840.

Recently, the government convinced the Sixth

Circuit that where no FTCA claim could be brought

for federal taskforce officers’ brutal attack of an

innocent student, the FTCA’s “judgment bar”

foreclosed adjudication of any other claims within the

same case too—a conclusion shared by several lower

courts (contra others) despite some never even

bothering to “analyze[] or explain[] how the judgment

bar’s text or purpose compels the conclusion that

claims arising out of the same subject matter in the

same suit are barred.” King v. Brownback, 144 S. Ct.

10, 11 (2023) (Sotomayor, J., statement respecting

denial of cert).

In that same case, the reason the judgment bar

was even on the table was because the government

convinced a district court to atextually import statelaw official immunities to shield the United States

from suit for the violent attack at issue—even though

the FTCA says 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 (emphasis added). See King v. United

States, 2017 WL 6508182, at *13–14 (W.D. Mich. Aug.

24, 2017) (granting immunity without analyzing or

even acknowledging § 2674).

That’s all to say nothing of the longstanding “Feres

doctrine,” which has “no basis in the text or logic of

the FTCA” and “unjustifiably deprives the injured

servicemember of a tort remedy simply because he

devoted his life to serving in his country’s Armed

Forces.” Carter v. United States, 145 S. Ct. 519, 523

(2025) (Thomas, J., dissenting from denial of cert)

(cleaned up).

With federal accountability in such a

stranglehold—Bivens all but dead, the FTCA

artificially constrained by highly dubious lower-court

decisions, and the Westfall Act’s constitutional-torts

provision so far toothless—it’s no wonder that the

most egregious rights violators are quick to cloak

themselves in federal legal garb (via federal–state

taskforces) and avail themselves of the DOJ’s everincreasingly aggressive anti-accountability stances.

That’s precisely how Heather Weyker, a St. Paul

police officer, has evaded any accountability “in a

series of civil rights lawsuits” for putting teenage

Somali refugees in federal prison based on charges

she knowingly fabricated (in order to protect a

separate bogus criminal case she was cooking up). See

Mohamud v. Weyker, 144 F.4th 1099, 1101–1102 (8th

Cir. 2025); https://ij.org/case/task-force-immunityand-accountability/.

Such unremedied abuses have federal judges and

others gravely concerned about the state of federal

accountability:

Private citizens who are brutalized—

even killed—by rogue federal officers

can find little solace in Bivens. * * * If

Bivens is off the table, whether formally

or functionally, and if the Westfall Act

preempts all previously available statelaw constitutional tort claims against

federal officers acting within the scope of

their employment, do victims of

unconstitutional conduct have any

judicial forum whatsoever? Are all

courthouse doors—both state and

federal—slammed shut? If so, and

leaving aside the serious constitutional

concerns that would raise, does such

wholesale immunity induce impunity,

giving the federal government a pass to

commit one-off constitutional violations?

* * * A written constitution is mere

meringue when rights can be violated

with nonchalance. I add my voice to

those lamenting today’s rights-withoutremedies regime, hoping (against hope)

that as the chorus grows louder, change

comes sooner.

Byrd v. Lamb, 990 F.3d 879, 883–885 (5th Cir. 2021)

(Willett, J., specially concurring).

Judge Willett is “certainly not the first to express

unease that individuals whose constitutional rights

are violated at the hands of federal officers are

essentially remedy-less.” Id. at 884 & n.12 (collecting

authorities); see Buchanan, 71 F.4th at 1015 & n.4

(collecting authorities for the proposition that

“prohibiting all damages actions against federal

officers might be a constitutional problem today”). 5

But they’re not always remedy-less. Often, the FTCA

lights a path. As it does in this case, for the

intentional acts of discrimination and property

deprivation Ms. Konan has alleged. The Court should

say so, and it should remind the government and the

lower courts that the FTCA is not an inconvenience

for the government to cleverly subvert. It’s a bulwark

of our constitutional order and individual liberty.

5 Accord Considering the Role of Judges Under the

Constitution of the United States: Hearing Before the S. Comm.

on the Judiciary, 112th Cong. 6–7 (2011) (statement of Justice

Scalia) (“Every banana republic has a bill of rights. * * * The bill

of rights of the former [Soviet Union] was much better than ours.

* * * Of course, they were just words on paper, what our Framers

would have called ‘a parchment guarantee.’ ”); Levitan, Before

lecture on war powers, Gorsuch laments public’s lack of

knowledge of the judiciary, SCOTUSblog (Oct. 19, 2018)

(recounting Justice Gorsuch’s reminder that North Korea’s

expansive bill of rights provisions are “not worth the parchment

they’re written on because you don’t have judges to enforce

them”); Baude, Bivens Liability and Its Alternatives, The Volokh

Conspiracy (Feb. 27, 2020) (“[I]f the Court is going to abolish the

20th century remedies for unconstitutional conduct, can we at

least have the 19th century remedies back? * * * It does seem

perverse to think that Congress can eliminate state law damages

for constitutional violations without either Congress or the

courts providing an alternative.”).

Conclusion

The Court should affirm.

Respectfully submitted,

August 20, 2025