Amicus Curiae Brief — Curtrina Martin, Individually and as Parent and Next Friend of G. W., a Minor, et al., Petitioners v. United States, et al.

No. 24-362

IN THE

Supreme Court of the United States

_______________

CURTRINA MARTIN, INDIVIDUALLY AND AS PARENT AND

NEXT FRIEND OF G.W., A MINOR, ET AL.,

Petitioners,

v.

UNITED STATES OF AMERICA, ET AL.,

Respondents.

_______________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

_______________

BRIEF OF AMICI CURIAE

MEMBERS OF CONGRESS

IN SUPPORT OF PETITIONERS

_______________

JONATHAN C. BOND

Counsel of Record

JEFF LIU

LAVI M. BEN DOR

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

JBond@gibsondunn.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

ARGUMENT ...............................................................4

I.

THE ELEVENTH CIRCUIT’S DECISION

DEFEATS CONGRESS’S CORE OBJECTIVE

IN ENACTING THE FTCA’S LAWENFORCEMENT PROVISO .................................4

II. THE ELEVENTH CIRCUIT’S DISTORTION

OF THE SUPREMACY CLAUSE

UNDERMINES CONGRESS’S POWER AND

CONFIRMS THE NEED FOR REVIEW ...............13

III. THE QUESTIONS PRESENTED ARE

EXCEPTIONALLY IMPORTANT ...........................20

CONCLUSION ..........................................................24

APPENDIX: LIST OF AMICI CURIAE ............ App. 1

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Abramski v. United States,

573 U.S. 169 (2014) ................................................ 5

Ash Sheep Co. v. United States,

252 U.S. 159 (1920) ................................................ 5

Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics,

403 U.S. 388 (1971) .............................................. 22

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) .............................................. 16

Brownback v. King,

592 U.S. 209 (2021) ................................................ 6

Carlson v. Green,

446 U.S. 14 (1980) ................................................ 22

Denson v. United States,

574 F.3d 1318 (11th Cir. 2009) .......... 14, 15, 17, 23

Department of Agriculture v. Kirtz,

601 U.S. 42 (2024) ................................................ 15

Egbert v. Boule,

596 U.S. 482 (2022) ........................................ 22, 23

Eiswert v. United States,

639 F. App’x 345 (6th Cir. 2016) ......................... 19

Feres v. United States,

340 U.S. 135 (1950) .............................................. 18

iii

Cases (continued)

Page(s)

Geier v. American Honda Motor Co.,

529 U.S. 861 (2000) .............................................. 14

Gonzales v. Raich,

545 U.S. 1 (2005) .................................................. 20

Hernandez v. Mesa,

589 U.S. 93 (2020) .......................................... 22, 23

Hillsborough County v. Automated

Medical Laboratories, Inc.,

471 U.S. 707 (1985) .............................................. 14

Huddleston v. United States,

485 F. App’x 744 (6th Cir. 2012) ......................... 19

Indian Towing Co. v. United States,

350 U.S. 61 (1955) ................................................ 18

Iverson v. United States,

973 F.3d 843 (8th Cir. 2020) .......................... 19, 21

In re KBR, Inc., Burn Pit Litigation,

744 F.3d 326 (4th Cir. 2014) ................................ 16

Kennedy v. U.S. Veterans

Administration,

526 F. App’x 450 (6th Cir. 2013) ......................... 19

Koohi v. United States,

976 F.2d 1328 (9th Cir. 1992) .............................. 16

Kordash v. United States,

51 F.4th 1289 (11th Cir. 2022) ............................ 15

iv

Cases (continued)

Page(s)

Leuthauser v. United States,

71 F.4th 1189 (9th Cir. 2023) .............................. 23

Lupiani v. Wal-Mart Stores, Inc.,

435 F.3d 842 (8th Cir. 2006) ................................ 20

Maryland v. Louisiana,

451 U.S. 725 (1981) .............................................. 14

Mayo v. United States,

319 U.S. 441 (1943) .............................................. 17

McCulloch v. Maryland,

17 U.S. (4 Wheat.) 316 (1819) .............................. 13

Millbrook v. United States,

569 U.S. 50 (2013) .............................................. 7, 9

Molzof v. United States,

502 U.S. 301 (1992) .............................................. 16

In re Neagle,

135 U.S. 1 (1890) .................................................. 18

Nguyen v. United States,

556 F.3d 1244 (11th Cir. 2009) .............................. 9

Ohio v. Thomas,

173 U.S. 276 (1899) .............................................. 18

Oncale v. Sundowner Offshore

Services, Inc.,

523 U.S. 75 (1998) .................................................. 5

v

Cases (continued)

Page(s)

Osmon v. United States,

66 F.4th 144 (4th Cir. 2023) ................................ 19

Parker Drilling Management

Services, Ltd. v. Newton,

587 U.S. 601 (2019) .............................................. 17

Pellegrino v. TSA,

937 F.3d 164 (3d Cir. 2019) (en banc) ........... 19, 23

Pledger v. Lynch,

5 F.4th 511 (4th Cir. 2021) .................................. 19

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) .............................................. 15

Rhode Island v. Narragansett

Indian Tribe,

19 F.3d 685 (1st Cir. 1994) .................................. 20

Richards v. United States,

369 U.S. 1 (1962) .................................................... 7

Rockford Life Insurance Co. v. Illinois

Department of Revenue,

482 U.S. 182 (1987) .............................................. 17

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) .................................. 16

Sheridan v. United States,

487 U.S. 392 (1988) ................................................ 7

vi

Cases (continued)

Page(s)

Tafflin v. Levitt,

493 U.S. 455 (1990) .............................................. 17

Tekle v. United States,

511 F.3d 839 (9th Cir. 2007) ................................ 21

Trump v. Vance,

591 U.S. 786 (2020) .............................................. 17

Tufariello v. Long Island Rail Road Co.,

458 F.3d 80 (2d Cir. 2006) ................................... 20

United States v. Bajakajian,

524 U.S. 321 (1998) .............................................. 21

United States v. Belmont,

301 U.S. 324 (1937) .............................................. 17

United States v. Bormes,

568 U.S. 6 (2012) .................................................. 12

United States v. Gainey,

380 U.S. 63 (1965) ................................................ 21

United States v. Kimbell Foods, Inc.,

440 U.S. 715 (1979) .............................................. 15

United States v. Olson,

546 U.S. 43 (2005) ................................................ 18

Watts v. United Parcel Service, Inc.,

701 F.3d 188 (6th Cir. 2012) ................................ 20

Wilson v. United States,

79 F.4th 312 (3d Cir. 2023) .................................. 16

vii

Cases (continued)

Page(s)

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023) .................................. 22

Constitutional Provisions

U.S. Const. Art. VI, § 2........................................ 13, 16

Statutes

28 U.S.C. § 1331 ........................................................ 16

28 U.S.C. § 1346 .................................................. 15, 18

28 U.S.C. § 2674 ........................................................ 18

28 U.S.C. § 2680 .................................. 2, 4, 7, 9, 16, 22

Other Authorities

Jack Boger et al., The Federal Tort

Claims Act Intentional Torts Amendment: An Interpretative Analysis, 54

N.C. L. Rev. 497 (1976) ..................................... 7, 8

Samuel L. Bray, The Mischief Rule,

109 Geo. L.J. 967 (2021) ........................................ 5

Paul Figley, Ethical Intersections & the

Federal Tort Claims Act: An

Approach for Government Attorneys,

8 U. St. Thomas L.J. 347 (2011) ............................ 6

viii

Other Authorities (continued)

Page(s)

Andrew H. Malcolm, Drug Raids

Terrorize 2 Families—by Mistake,

N.Y. Times (Apr. 29, 1973) .................................... 8

James E. Pfander & Neil Aggarwal,

Bivens, the Judgment Bar, and the

Perils of Dynamic Textualism,

8 U. St. Thomas L.J. 417 (2011) ....................... 6, 7

James E. Pfander & Jonathan L. Hunt,

Public Wrongs & Private Bills:

Indemnification and Government

Accountability in the Early Republic,

85 N.Y.U. L. Rev. 1862 (2010) ............................... 6

S. Rep. No. 469, 93d Cong., 1st Sess.

(1973) ........................................................ 10, 11, 12

S. Rep. No. 588, 93d Cong., 1st Sess.

(1973) .................................................................... 10

Gregory Sisk, Recovering the Tort

Remedy for Federal Official

Wrongdoing, 96 Notre Dame L. Rev.

1789, 1809 (2021) ................................................... 6

Paul David Stern, Tort Justice Reform,

52 U. Mich. J.L. Reform 649 (2019) ...................... 9

ix

Other Authorities (continued)

Page(s)

Eric Wang, Tortious Constructions:

Holding Federal Law Enforcement

Accountable by Applying the FTCA’s

Law Enforcement Proviso Over the

Discretionary Function Exception,

95 N.Y.U. L. Rev. 1943 (2020) ............................... 8

1

INTEREST OF AMICI CURIAE*

Amici curiae are current Members of the United

States Congress. As this Nation’s federal lawmakers,

amici have a vital interest in protecting the supremacy of federal laws that Congress has enacted pursuant to its constitutional authority. Amici also have an

interest in the proper interpretation and application

of federal law. That interest is especially significant

for laws like the Federal Tort Claims Act (FTCA),

28 U.S.C. §§ 1346(b), 2671 et seq., which Congress enacted specifically to safeguard individual liberties

against government intrusion and to provide redress

for amici’s constituents and other Americans harmed

by federal law enforcement officials.

* Pursuant to this Court’s Rule 37.2, amici provided timely

notice to all parties of their intent to file this amicus brief. Pursuant to Supreme Court Rule 37.6, no counsel for a party authored this brief in whole or in part, and no person or entity other

than amici or their counsel made a monetary contribution to this

brief ’s preparation.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Constitution’s structural separation of powers and its Supremacy Clause both ensure that Congress’s policy judgments take primacy on matters

within its clearly established constitutional authority.

The Eleventh Circuit’s decision in this case flouts that

fundamental tenet. Its entrenched approach to the

FTCA’s law-enforcement proviso, 28 U.S.C. § 2680(h),

defies Congress’s judgment by refusing to give effect

to that proviso in the very circumstance that

prompted its enactment. And the court of appeals’ approach sets the Supremacy Clause at war with itself

by refusing to give effect to a duly enacted federal statute out of supposed concern for the supremacy of federal law.

Half a century ago, Congress enacted the FTCA’s

law-enforcement proviso to authorize damages suits

against the United States for intentional torts committed by federal law-enforcement officers. Discerning Congress’s objectives in decades-old enactments is

sometimes difficult, but the impetus for the lawenforcement proviso is clear: In April 1973, federal

agents mistakenly stormed two homes in Collinsville,

Illinois, terrifying innocent families and damaging

their homes. Occurring at the height of President

Nixon’s War on Drugs, the Collinsville raids drew national outrage and spurred Congress to act. In adopting the law-enforcement proviso the following year,

Congress sought to provide meaningful recourse for

victims of wrong-house raids at the hands of federal

law enforcement, like the Collinsville families. Whatever else the proviso encompasses, there is no question that wrong-house raids lie at its core.

3

That proviso was tailor-made for cases like this

one. Petitioners are victims of a wrong-house raid

that resulted from federal agents’ execution of a

search warrant—precisely the type of claims the lawenforcement proviso contemplated. Yet the Eleventh

Circuit held that the proviso offers them no relief, concluding that the Constitution’s Supremacy Clause

foreclosed petitioners’ claims covered by the proviso. That decision unravels Congress’s work.

The decision below leaves the law-enforcement

proviso a dead letter in the very type of law-enforcement

abuse that drove the proviso’s adoption. And the court

of appeals’ reasoning perversely treats a provision of

the Constitution designed to ensure the supremacy of

federal statutes as a basis to disregard Congress’s will

expressed in the U.S. Code. The Eleventh Circuit

holds that the Supremacy Clause bars any claim under one federal statute (the FTCA) based on a federal

officer’s conduct if that conduct relates to performance

of his official duties and violates no clearly established

constitutional principle. That approach transmutes a

limitation on state power into a limitation on congressional authority. Although Congress chose in the

FTCA to borrow the substance of state law as the relevant rule of decision, FTCA claims arise under federal, not state, law. And nothing in the Constitution

limits Congress’s power to waive the federal government’s sovereign immunity by incorporating state-law

standards of liability. The Eleventh Circuit stands

alone among the circuits in conjuring a limitation on

the force of federal statutes from the Supremacy

Clause, which exists to ensure that those statutes are

given effect.

4

That error is critically important. In effect, the

Eleventh Circuit deems the FTCA’s law-enforcement

proviso unconstitutional under the Supremacy Clause

in its core applications. That rule leaves many Americans without redress for intentional wrongs committed by federal law-enforcement officers. This case—

arising under the precise circumstances that motivated Congress to enact the law-enforcement

proviso—presents that error in stark relief.

The Court should grant the petition.

ARGUMENT

I.

THE ELEVENTH CIRCUIT’S DECISION DEFEATS

CONGRESS’S CORE OBJECTIVE IN ENACTING THE

FTCA’S LAW-ENFORCEMENT PROVISO

The decision below negates the law-enforcement

proviso’s intended effect on the very type of tort claim

for which it was designed. In 1973, federal agents

stormed two residences in Collinsville, Illinois, terrifying the residents within. But the agents invaded the

wrong homes. Public outrage ensued.

Congress responded by enacting the FTCA’s lawenforcement proviso. 28 U.S.C. § 2680(h). The proviso withdraws federal sovereign immunity from damages claims “with regard to acts or omissions of investigative or law enforcement officers of the United

States Government” for “any claim arising * * * out

of assault, battery, false imprisonment, false arrest,

abuse of process, or malicious prosecution.” Ibid. The

proviso’s plain text provides—and it was enacted specifically to guarantee—that victims of wrong-house

raids by federal agents like the Collinsville families

5

can seek redress from the United States over wronghouse raids.

Yet the Eleventh Circuit’s decision nullifies the

law-enforcement proviso in precisely that circumstance. Faced with FTCA claims alleging a wronghouse raid just like those that prompted the proviso’s

enactment, the court concluded that petitioners nevertheless have no remedy. Pet. App. 19a. That incongruous result is a red flag that the court of appeals’

approach is off the mark. Faithful construction of federal statutes requires courts to read a law’s text in

light of its “structure, history, and purpose.”

Abramski v. United States, 573 U.S. 169, 179 (2014)

(citation omitted). As this Court has long instructed,

“determining the legislative intent” thus includes

“look[ing] to,” inter alia, “the mischief to be prevented”

by the law. Ash Sheep Co. v. United States, 252 U.S.

159, 168 (1920); see, e.g., id. at 169 (construing statute

to encompass conduct that “[wa]s plainly within the

mischief at which th[e] section aimed,” in accord with

the settled judicial and Executive Branch understanding); Samuel L. Bray, The Mischief Rule, 109 Geo. L.J.

967, 1000-1002 (2021). To be sure, a statute’s plain

language sometimes reaches beyond the immediate

problem that prompted its enactment. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998).

But the fact that a judicial decision renders a statutory provision defunct in the exact scenario that it was

enacted to address is a telltale sign that something is

amiss.

That is the case here. That the Eleventh Circuit’s

ruling leaves the proviso a dead letter even in wronghouse-raid cases shows that its approach is off track.

6

A. The law-enforcement proviso’s text and context

make clear that Congress provided a damages remedy

against the United States for victims of wrong-house

raids by federal agents.

1. Before the FTCA’s enactment, sovereign immunity barred a person injured by a federal employee

from suing the United States for damages. Brownback v. King, 592 U.S. 209, 211 (2021). Instead, victims “would sue government officers and employees.”

James E. Pfander & Neil Aggarwal, Bivens, the

Judgment Bar, and the Perils of Dynamic Textualism, 8 U. St. Thomas L.J. 417, 425 (2011) (Pfander &

Aggarwal).

This system of individual-officer suits proved unwieldy. With many federal officers judgment-proof,

“citizens injured by the torts of federal employees” often had “to ask Congress to enact private legislation

affording them relief.” Paul Figley, Ethical Intersections & the Federal Tort Claims Act: An Approach for

Government Attorneys, 8 U. St. Thomas L.J. 347, 348

& n.7 (2011). But the resultant system of “private

bills” proved laborious. Brownback, 592 U.S. at 211.

“[B]y the 1940s, Congress was” inundated, “considering hundreds of such private bills each year.” Ibid.

For suits that did proceed against individual officers,

Congress would often indemnify the officers upon the

officers’ submission of “applications for indemnity.”

Pfander & Aggarwal 425. But indemnity was far from

guaranteed, and the procedure interposed additional

hurdles to relief. See Gregory Sisk, Recovering the

Tort Remedy for Federal Official Wrongdoing,

96 Notre Dame L. Rev. 1789, 1809 (2021) (describing

“practical advantage” of “bypass[ing] the officer indemnity request”); James E. Pfander & Jonathan L.

7

Hunt, Public Wrongs & Private Bills: Indemnification

and Government Accountability in the Early Republic,

85 N.Y.U. L. Rev. 1862, 1867 (2010).

Congress enacted the FTCA in 1946 to replace

that unwieldy system and “to free Congress from the

burden of passing on petitions for private relief.”

Pfander & Aggarwal 424. To that end, the FTCA generally “remove[d] the sovereign immunity of the

United States from suits in tort.” Richards v. United

States, 369 U.S. 1, 6 (1962). The FTCA thus channeled determinations of sovereign immunity for torts

by federal officials away from ad hoc determinations

by Congress to courts applying statutory standards.

The FTCA’s “broad waiver of sovereign immunity”

is not absolute, however, but “subject to a number of

exceptions.” Millbrook v. United States, 569 U.S. 50,

52 (2013). One is the “intentional tort exception,”

Sheridan v. United States, 487 U.S. 392, 400 (1988),

which preserves sovereign immunity (and thus bars

claims) for certain intentional torts, 28 U.S.C.

§ 2680(h). For such claims, plaintiffs had only the unworkable pre-FTCA remedies of suing the individual

officers or petitioning Congress for private legislation.

2. So things stood for nearly three decades. But

two wrong-house raids in April 1973 in a small suburb

in Illinois shined a national spotlight on misconduct

by federal law enforcement, prompting Congress to revise the FTCA. On April 23, federal officers “mistakenly stormed the homes of two Collinsville, Illinois,

families in an attempt to apprehend suspected cocaine

dealers.” Jack Boger et al., The Federal Tort Claims

Act Intentional Torts Amendment: An Interpretative

Analysis, 54 N.C. L. Rev. 497, 500 (1976) (Boger). The

8

agents charged into Herbert and Evelyn Giglotto’s

home first. Ibid. The couple “awoke * * * to the

sound of someone smashing down their door” and

found “shabbily dressed men” in their home

“[b]randishing pistols.” Ibid. One of the intruding officers tied Mr. Giglotto’s “hands behind his back,”

pointed a gun at his head, and threatened to kill him

if he moved. Ibid. The officers detained Ms. Giglotto

too, eventually “identif[ying] themselves as federal officers.” Ibid. While “ransack[ing]” the house, the officers realized they had the wrong home. Ibid. So,

“without apology, [they] untied the couple” and left.

Id. at 500-501.

Thirty minutes later, other agents committed the

same mistake, descending on the nearby home of the

Askews. Mrs. Askew “screamed to her husband, who

looked up to find two men standing at his kitchen

door—one holding a sawed-off shotgun—and a third

man standing at another door.” Boger 501. This all

proved too much for Mrs. Askew, who fainted from

fright. Ibid. After gaining entry, the agents realized

they also had the wrong home and left. Ibid.

The Collinsville raids quickly drew national attention. “Drug Raids Terrorize 2 Families—by Mistake,”

read the New York Times. Andrew H. Malcolm, Drug

Raids Terrorize 2 Families—by Mistake, N.Y. Times

(Apr. 29, 1973). On the Senate floor less than a month

later, Senator Sam Ervin of North Carolina pointed to

the Collinsville raids to assail a federal law authorizing officers to conduct no-knock raids. Boger 506.

The ensuing furor became the “impetus” for Congress to enact the FTCA’s law-enforcement proviso to

limit the intentional-tort exception. Eric Wang, Tor-

9

tious Constructions: Holding Federal Law Enforcement Accountable by Applying the FTCA’s Law Enforcement Proviso Over the Discretionary Function Exception, 95 N.Y.U. L. Rev. 1943, 1954 (2020); see also

Paul David Stern, Tort Justice Reform, 52 U. Mich.

J.L. Reform 649, 665 (2019) (similar). As the Eleventh

Circuit itself has long recognized, “Congress added the

proviso” after the Collinsville raids “to ensure that future victims of these kinds of torts * * * would have

a damages remedy against the United States.” Nguyen v. United States, 556 F.3d 1244, 1255 (11th Cir.

2009). Operating as an exception to an exception to

the FTCA’s waiver of immunity, the law-enforcement

proviso thus authorizes suits against the United

States for specified intentional torts by “extend[ing]

the waiver of sovereign immunity” to encompass

claims that the intentional-tort exception had previously barred. Millbrook, 569 U.S. at 52-53.

The text Congress enacted unambiguously

evinces its intent to encompass wrong-house raids:

The proviso waives sovereign immunity for “any claim

arising * * * out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution” based on the “acts or omissions of investigative or law enforcement officers of the United States.”

28 U.S.C. § 2680(h). The proviso squarely targets the

kind of “investigative or law enforcement officers” who

perpetrated the Collinsville raids. Ibid. And it covers

those intentional torts most likely to arise from such

raids.

B. The law-enforcement proviso’s history in Congress confirms that providing redress for victims of

wrong-house raids by federal agents was central to

the statutory design. Throughout the proviso’s path

10

through Congress, its primary aim was repeatedly

echoed. The Senate Committee on Government Operations, where the law-enforcement proviso originated,

reported that “several incidents” had been brought to

its “attention in which Federal narcotics agents engaged in abusive, illegal and unconstitutional ‘noknock’ raids.” S. Rep. No. 588, 93d Cong., 1st Sess. 2

(1973). The Committee criticized the lack of “effective

legal remedy against the Federal Government for the

actual physical damage, much less the pain, suffering

and humiliation to which the Collinsville families

have been subjected.” Ibid. And it called out the “injustice” that “under the [FTCA] a Federal mail truck

driver creates direct federal liability if he negligently

runs down a citizen * * * but the Federal Government

is held harmless if a[n] * * * agent intentionally assaults that same citizen in the course of an illegal ‘noknock’ raid in Collinsville.” Id. at 3.

To right these wrongs, the Committee proposed “a

proviso at the end of the intentional torts exception”

that would “deprive” the United States of sovereign

immunity for certain intentional torts by law enforcement officers. S. Rep. No. 588, 93d Cong., 1st Sess. 3.

That would ensure that “innocent individuals who are

subjected to raids of the type conducted in Collinsville,

Illinois, will have a cause of action against * * * the

Federal Government.” Ibid.

The Committee’s report endorsed concerns expressed by its Subcommittee on Reorganization, Research, and International Organizations, which had

decried the “terrorizing of innocent citizens in * * *

mistaken raids across the Nation” as “a destruction of

fundamental rights and basic safeguards.” S. Rep.

No. 469, 93d Cong., 1st Sess. 28 (1973). Against the

11

backdrop of the War on Drugs, the subcommittee cautioned that the pursuit “of a drug-free society must not

sacrifice the right to the privacy of one’s home and the

due process of law which comprise the lifeblood of our

free society.” Ibid.

Contemporaneous explanations by the proviso’s

architects tell the same story. Senator Charles Percy,

one of the proviso’s chief proponents, urged that “it

[wa]s now time to amend the [FTCA] so that victims

of deliberate violence and terrorism at the hands of

Federal agents can be better compensated, if only

monetarily, for their losses.” S. Rep. No. 469, 93d

Cong., 1st Sess. 36 (individual views of Senator

Charles H. Percy). The old regime—which left victims

of federal torts to sue officers—was an “empty response” because “it is common knowledge that the

government, the agents’ employer, is in the best financial position to pay a proper judgment.” Ibid.

The proviso’s history thus confirms what any reasonable contemporaneous reader would have recognized: The proviso seeks to make whole victims of federal officers’ torts, including misdirected federal raids

like the ones in Collinsville, by enabling them to bring

an action for damages against the United States.

C. The raid-gone-awry on petitioners’ home in this

case falls squarely in the proviso’s heartland. In service of a wide-ranging FBI operation targeting a

Georgia-based drug ring, federal agents executed “a

no-knock search warrant” for gang member Joseph Riley, detonating a flashbang grenade and smashing in

the front door of the wrong home. Pet. App. 3a (describing the raid as executing “a no-knock search warrant at” a “house which was not the address identified

12

in the warrant”). A “loud cannon-type bang” startled

the Martins awake. Pet. App. 7a, 76a. When they realized that intruders had invaded their home, they

bolted to a closet and hid. Pet. App. 3a. “A SWAT

team member located Cliatt [Martin’s cohabitant] and

Martin in their bedroom closet, dragged Cliatt out of

the closet[,] * * * and handcuffed him.” Pet. App. 8a.

“[A]nother * * * pointed a gun in [Martin’s] face while

yelling at her to keep her hands up.” Ibid. When,

however, the officers realized they had the wrong

house, they left without “any explanation.” Pet. App.

80a.

The parallels to the mistaken drug raids in Collinsville are striking. As the two Collinsville families

testified before Congress, “they were terrorized by

gun-wielding * * * intruders who shouted obscenities, destroyed property and threatened their very

lives.” S. Rep. No. 469, 93d Cong., 1st Sess. 21. Realizing their error, the agents “departed as suddenly as

they had arrived without an explanation.” Id. at 22.

As in Collinsville, federal “[n]arcotics agents” here

“have used stormtrooper tactics in making unannounced and unlawful entries into the dwellings of decent, law-abiding citizens.” Id. at 32.

The Eleventh Circuit’s holding—that petitioners’

FTCA claims based on federal officers’ wrong-house

raid are not even cognizable—embodies the opposite

of the policy that Congress codified in the lawenforcement proviso, which it enacted in response to

precisely that kind of abuse. Whether and to what extent to waive federal sovereign immunity is a quintessential policy call that lies within Congress’s exclusive

province. See United States v. Bormes, 568 U.S. 6, 910 (2012). Congress’s judgment to waive immunity for

13

tort claims like those here should be controlling. The

Eleventh Circuit’s disconcerting departure from that

straightforward principle amply warrants this Court’s

review.

II. THE ELEVENTH CIRCUIT’S DISTORTION OF THE

SUPREMACY CLAUSE UNDERMINES CONGRESS’S

POWER AND CONFIRMS THE NEED FOR REVIEW

More concerning still, the Eleventh Circuit’s rationale for depriving the law-enforcement proviso of

effect in cases at its core rests on a fundamental misapprehension of bedrock constitutional principles.

The court of appeals concluded that the Supremacy

Clause, U.S. Const. Art. VI, § 2—which preserves the

efficacy of valid Acts of Congress by making them “supreme” over any other, contrary laws—prevents Congress from providing relief to victims of wrong-house

raids under certain circumstances. That ruling turns

the Supremacy Clause on its ear, unduly constrains

Congress’s legislative authority, and puts the Eleventh Circuit at odds with its sister circuits.

A. The Supremacy Clause provides in relevant

part that “[t]his Constitution, and the Laws of the

United States which shall be made in Pursuance

thereof * * * shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby,

any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.” U.S. Const. Art. VI,

§ 2. The Clause thus enshrines and safeguards Congress’s legislative authority by depriving the States of

any “power * * * to retard, impede, burden, or in any

manner control, the operations of the constitutional

laws enacted by Congress to carry into execution the

powers vested in the general government.” McCulloch

14

v. Maryland, 17 U.S. (4 Wheat.) 316, 436 (1819). Any

state law that conflicts with federal law is “without

effect.” Maryland v. Louisiana, 451 U.S. 725, 746

(1981).

The Supremacy Clause thus strikes a specific

“federal-state balance,” in which federal actions “supersede” inconsistent actions of the States in areas the

Constitution assigns to the federal government’s authority. Hillsborough County v. Automated Medical

Laboratories, Inc., 471 U.S. 707, 713, 717 (1985).

Simply put, the Clause provides a rule of decision for

resolving “federal-state conflict[s].” Geier v. American

Honda Motor Co., 529 U.S. 861, 874 (2000).

The Eleventh Circuit, however, has derived from

that constitutional provision—one that serves to protect Congress’s legislative authority from state interference—a prohibition on federal statutes that are

perceived as unduly hindering the execution of other

federal laws and functions. That inverted view of the

Supremacy Clause has nothing to commend it.

1. The Eleventh Circuit’s misadventure traces to

Denson v. United States, 574 F.3d 1318 (11th Cir.

2009). The Denson court started from the premise

that the Supremacy Clause bars any state-law claim

that “would impede [a federal] officer from performing

his duties.” Id. at 1346-1347. But the Eleventh Circuit then swerved by construing the Clause to impose

the same constraint to claims under federal law. Despite correctly recognizing that the Clause prescribes

a constitutional standard for judging “whether the

United States is amenable to liability under state

law,” the Eleventh Circuit extended that principle to

hold that the Clause precludes any suit against a fed-

15

eral officer under the FTCA—a federal statute—for

“executing his duties as prescribed by federal law.”

Ibid. The Eleventh Circuit later reaffirmed that rule

in Kordash v. United States, 51 F.4th 1289 (11th Cir.

2022), and applied it to bar liability here, Pet. App.

18a-19a.

The Eleventh Circuit has matters backwards.

The FTCA is indisputably an Act of Congress that the

Supremacy Clause elevates above state law. It is an

exercise of Congress’s plenary “prerogative” to “waive

the federal government’s immunity.” Department of

Agriculture v. Kirtz, 601 U.S. 42, 48 (2024). Nothing

in that Clause constrains Congress’s policy judgment

regarding whether or when to waive immunity. And

because the FTCA is a federal statute, no possible

“conflic[t] between state and federal law” exists that

could implicate the Supremacy Clause. PLIVA, Inc. v.

Mensing, 564 U.S. 604, 620 (2011).

The Eleventh Circuit appears to reason that, because Congress in the FTCA borrowed the substance

of state law, 28 U.S.C. § 1346(b)(1), claims under the

FTCA are therefore state-law claims subject to the Supremacy Clause. Denson, 574 F.3d at 1347. But that

conclusion does not follow. In controversies “governed

by federal law,” federal law may “adopt state law” in

substance, but federal law remains federal. United

States v. Kimbell Foods, Inc., 440 U.S. 715, 727-728

(1979). The standard set by “state law” is simply “incorporated as the federal rule of decision.” Ibid. (emphasis added).

That is exactly what the FTCA does by allowing

tort claims against the United States and “incorporat[ing] state tort law into federal law.” Denson,

16

574 F.3d at 1352 (Carnes, J., concurring). That explains why it is well settled, for example, that an

FTCA claim “aris[es] under” federal law for purposes

of federal-question jurisdiction. 28 U.S.C. § 1331; see,

e.g., Wilson v. United States, 79 F.4th 312, 316 (3d Cir.

2023). In short, while the FTCA assigns liability by

“reference to” state law, Molzof v. United States, 502

U.S. 301, 305 (1992), the FTCA itself acts as “the supreme Law of the Land” in this domain, U.S. Const.,

Art. VI, § 2.

The Supremacy Clause’s only relevance in this setting is ensuring that state law does not frustrate the

FTCA. In Boyle v. United Technologies Corp., 487 U.S.

500 (1988), for example, the Court considered whether

military contractors can be subject to design-defect

suits under state tort law. Id. at 502. The Court observed that “the selection of the appropriate design for

military equipment” falls within the FTCA’s

discretionary-function exception and concluded that

state-law suits based on such conduct are largely “displaced” by the “federal policy” reflected in the FTCA.

Id. at 511-512; see, e.g., Saleh v. Titan Corp., 580 F.3d

1, 7 (D.C. Cir. 2009) (holding that FTCA’s exception

for claims based on combatant activities, 28 U.S.C.

§ 2680(j), preempts state tort claims against military

contractors relating to those activities); Koohi v.

United States, 976 F.2d 1328, 1336-1337 (9th Cir.

1992) (same); In re KBR, Inc., Burn Pit Litigation,

744 F.3d 326, 351 (4th Cir. 2014) (similar).

2. The Eleventh Circuit’s contrary rule undercuts

the very primacy of federal law that the Supremacy

Clause seeks to fortify. The Clause armors the federal

government’s sovereignty in the areas over which it

has constitutional authority, by “protect[ing] against

17

* * * [any] ‘obstacle[s] to the effective operation of a

federal constitutional power.’” Trump v. Vance,

591 U.S. 786, 810 (2020) (quoting United States v. Belmont, 301 U.S. 324, 332 (1937)); accord Rockford Life

Insurance Co. v. Illinois Department of Revenue,

482 U.S. 182, 190 (1987) (the Supremacy Clause protects “the Federal Government’s authority”).

Certainly nothing in the Supremacy Clause precludes Congress from choosing whether and when to

waive the federal government’s sovereign immunity

or from borrowing state law in doing so. The Constitution gives Congress alone the choice whether to

waive sovereign immunity. See Mayo v. United

States, 319 U.S. 441, 446 (1943). And nothing in the

Clause or any other provision of the Constitution forbids Congress from creating federal causes of action

that incorporate state law, as it has done in the FTCA

and a range of other statutes. See, e.g., Parker Drilling Management Services, Ltd. v. Newton, 587 U.S.

601, 610 (2019) (Outer Continental Shelf Lands Act

“borrows * * * certain state laws” “as surrogate federal law” (citation omitted)); Tafflin v. Levitt, 493 U.S.

455, 468 (1990) (White, J., concurring) (RICO). Those

are Congress’s unfettered prerogatives.

Simply put, “[t]he sovereign is sovereign over

questions of sovereign immunity. And the sovereign’s

will in this area of the law has been expressed in the

FTCA, which incorporates state tort law as a matter

of federal law.” Denson, 574 F.3d at 1352 (Carnes, J.,

concurring) (emphasis omitted). The Supremacy

Clause should have led the Eleventh Circuit to respect

Congress’s judgment. By instead reading the Supremacy Clause as a constraint on Congress’s authority, the Eleventh Circuit’s rule subverts “the suprem-

18

acy of the government of the United States in the exercise of all the powers conferred upon it by the constitution.” In re Neagle, 135 U.S. 1, 62 (1890).

3. The Eleventh Circuit’s approach not only distorts the constitutional structure but also frustrates

the FTCA itself. Ordinarily, state laws that impose

liability based on federal officers’ “discharg[e] [of

their] duties under Federal authority” are preempted.

Ohio v. Thomas, 173 U.S. 276, 283 (1899). But when

Congress enacted the FTCA, it authorized a wide

swath of federal claims that borrow state-law rules of

decision for misconduct committed by a federal employee “while acting within the scope of his office or

employment.” 28 U.S.C. § 1346(b)(1). And Congress

instructed that the United States would be liable “in

the same manner and to the same extent as a private

individual under like circumstances.” Id. § 2674; see

also id. § 1346(b)(1); Feres v. United States, 340 U.S.

135, 139-140 (1950) (noting Congress’s desire to remedy “wrongs which would have been actionable if inflicted by an individual or a corporation but remediless solely because their perpetrator was an officer or

employee of the Government”). The FTCA thus necessarily authorizes damages liability in many circumstances even for federal officers’ “performance of

‘uniquely governmental functions,’” because the

FTCA “requires a court to look to the state-law liability of private entities, not to that of public entities,

when assessing the Government’s liability.” United

States v. Olson, 546 U.S. 43, 46 (2005) (quoting Indian

Towing Co. v. United States, 350 U.S. 61, 64 (1955)).

Congress’s considered judgment in enacting (and

amending) the FTCA, in short, was to hold federal officers to the same standards as private citizens and

19

provide accountability for their misconduct—even

misconduct stemming from their performance of their

official duties—except as Congress itself specified.

The Eleventh Circuit’s approach countermands that

judgment. It permits the government to avoid liability, as it did here, by invoking the tortfeasors’ status

as federal officers and asserting that they “acted

within the scope of” their authority. Pet. App. 17a.

B. Unsurprisingly, the Eleventh Circuit’s Denson

rule is an outlier among the courts of appeals. The

Sixth Circuit has expressly rejected it, reasoning that,

“[b]ecause federal law incorporates state substantive

law for the purposes of FTCA claims,” applying state

law to FTCA claims “does not run afoul of the Supremacy Clause.”

Huddleston v. United States,

485 F. App’x 744, 746 (6th Cir. 2012); see also Eiswert

v. United States, 639 F. App’x 345, 347 (6th Cir. 2016)

(citing Huddleston with approval); Kennedy v. U.S.

Veterans Administration, 526 F. App’x 450, 454 (6th

Cir. 2013) (same); Pledger v. Lynch, 5 F.4th 511, 532

n.6 (4th Cir. 2021) (Quattlebaum, J., concurring in

part and dissenting in part) (suggesting that the Supremacy Clause is not implicated in FTCA cases).

And no other circuit follows the Eleventh Circuit’s

approach in FTCA cases like this one. To the contrary, courts of appeals regularly allow plaintiffs to

pursue claims like petitioners’ that would be barred

under Denson. See Pet. 21; see also, e.g., Osmon v.

United States, 66 F.4th 144, 145 (4th Cir. 2023) (permitting claims under law-enforcement proviso to proceed); Iverson v. United States, 973 F.3d 843, 845 (8th

Cir. 2020) (same); Pellegrino v. TSA, 937 F.3d 164, 168

(3d Cir. 2019) (en banc) (same).

20

As petitioners underscore, other circuits rightly

understand that the Supremacy Clause has no role to

play in limiting the reach of federal law. See Pet. 21

n.6; see also, e.g., Watts v. United Parcel Service, Inc.,

701 F.3d 188, 191 (6th Cir. 2012); Lupiani v. Wal-Mart

Stores, Inc., 435 F.3d 842, 846 (8th Cir. 2006); Tufariello v. Long Island Rail Road Co., 458 F.3d 80, 86 (2d

Cir. 2006). In these circuits, it is well settled that the

Clause “applies only to conflicts between federal provisions, on one hand, and state or local provisions, on

the other hand.” Rhode Island v. Narragansett Indian

Tribe, 19 F.3d 685, 703 (1st Cir. 1994).

The Eleventh Circuit thus stands alone in misreading the Supremacy Clause to restrict Congress’s

power to legislate within its constitutional authority.

III. THE QUESTIONS PRESENTED ARE EXCEPTIONALLY

IMPORTANT

This case offers a much-needed opportunity to

clarify the scope of the FTCA’s law-enforcement proviso and its interaction with the Supremacy Clause.

When the proviso is unduly limited, those harmed by

the intentional acts of federal law-enforcement officers are denied their only effective remedy, and Congress’s solution to that longstanding quandary is

thwarted.

The Eleventh Circuit’s mistaken view of the Supremacy Clause as imposing a constraint on Congress’s power to waive sovereign immunity presents a

constitutional issue of “obvious importance.” Gonzales v. Raich, 545 U.S. 1, 9 (2005). Applying that supposed constraint, the decision below effectively declared the FTCA unconstitutional in its core applications. This Court often grants review when a lower

21

court “exercise[s] * * * the grave power of annulling

an Act of Congress,” and it should follow that course

here. United States v. Gainey, 380 U.S. 63, 65 (1965);

see, e.g., United States v. Bajakajian, 524 U.S. 321,

327 (1998) (“Because the Court of Appeals’ holding * * * invalidated a portion of an Act of Congress,

we granted certiorari.”).

The import of the Eleventh Circuit’s rule is unmistakable: It is unconstitutional for Congress to authorize a tort claim against a federal official whose actions

“have some nexus with furthering federal policy and

can reasonably be characterized as complying with

the full range of [the Fourth Amendment].” Pet. App.

19a (citation omitted). That holding nullifies the

FTCA in precisely the circumstances Congress most

clearly intended it to apply. When federal officials

raided the Giglottos’ and Askews’ homes, they were

also arguably acting within the scope of their discretionary authority and seeking to advance the federal

policy of enforcing the Nation’s drug laws. If the officers here could “reasonably be characterized” as complying with the Fourth Amendment, ibid., so too could

the officers who raided the Giglottos’ and the Askews’

homes in April 1973.

More broadly, the Eleventh Circuit’s sweeping

rule renders a significant portion of the FTCA inoperable. It means, for example, that no claim for battery

can be asserted in the Eleventh Circuit against a TSA

agent who jerks a traveler from his crutches during

an airport security search. Cf. Iverson v. United

States, 973 F.3d 843, 846 (8th Cir. 2020). And it would

bar an FTCA claim when officers injure an arrestee by

yanking him around by the handcuffs in the course of

an arrest. Cf. Tekle v. United States, 511 F.3d 839,

22

843 (9th Cir. 2007). Such acts bear some nexus to federal policy and do not violate any clearly established

constitutional rule. Under the Eleventh Circuit’s Supremacy Clause bar, nothing more is needed to foreclose FTCA liability. That contravenes Congress’s explicit judgment in the FTCA that persons injured by

specified intentional torts committed by federal lawenforcement officers may seek redress from the government in court. 28 U.S.C. § 2680(h). The Eleventh

Circuit’s rule undoes Congress’s work and cleaves off

a vital chunk of the FTCA.

The real-world import of that error is magnified

by the narrowing of relief under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). As the Court has recounted, “Congress views [the] FTCA and Bivens as

parallel, complementary causes of action.” Carlson v.

Green, 446 U.S. 14, 20 (1980). Because “Congress decide[d] to enact a statutory remedy which it view[ed]

as fully adequate only in combination with the Bivens

remedy, e.g., 28 U.S.C. § 2680(h)”—i.e., the lawenforcement proviso—“that congressional decision

should be given effect by the courts.” Id. at 19 n.5.

In recent years, this Court has repeatedly recognized limitations on relief under Bivens based on “respect for the separation of powers.” Hernandez v.

Mesa, 589 U.S. 93, 113 (2020). As Bivens has been

narrowed, federal plaintiffs have increasingly needed

to turn to the FTCA. See Egbert v. Boule, 596 U.S.

482, 491 (2022); Xi v. Haugen, 68 F.4th 824, 832 (3d

Cir. 2023). As a result, “[w]ith Bivens sharply limited,

the stakes of clarifying” the FTCA “grow ever greater.”

Xi, 68 F.4th at 844 (Bibas, J., concurring). In many

cases where courts have dismissed plaintiffs’ Bivens

23

claims against federal officers, they have nevertheless

allowed FTCA claims against the United States—including under the law-enforcement proviso—to proceed. E.g., Leuthauser v. United States, 71 F.4th 1189,

1193 (9th Cir. 2023); Pellegrino, 937 F.3d at 169. But

in the Eleventh Circuit, a court’s conclusion that relief

is unavailable under Bivens will likely often foreclose

a claim under the FTCA as well: When federal defendants “compl[y] with the full range” of constitutional guarantees (defeating any Bivens claim), they

also appear to trigger that court’s Supremacy Clause

bar to the FTCA. Pet. App. 19a (citation omitted);

Denson, 574 F.3d at 1344-1345.

The Eleventh Circuit’s narrowing of statutory relief under the FTCA is antithetical to the “respect for

the separation of powers” that has driven recent decisions restricting the judge-made Bivens remedy. Hernandez, 589 U.S. at 113. Just as courts should not

“step into [Congress’s] shoes” when it has chosen “not

to provide a judicial remedy,” courts should not override the remedy Congress has provided. Ibid. Rather,

courts must “defer to Congress,” Egbert, 596 U.S. at

491 (citation omitted)—both because “Congress is best

positioned to evaluate whether, and the extent to

which, monetary and other liabilities should be imposed” on the federal government and its officers, Hernandez, 589 U.S. at 101 (internal quotation marks

and citation omitted), and because whether the government should waive immunity and accept liability

for actions of its officers is a policy call for Congress.

*****

Today, victims of wrong-home raids by federal officers in Collinsville, Illinois, may sue under the

24

FTCA, but victims of an identical raid in Collinsville,

Georgia, could not. That asymmetry is untenable and

contravenes Congress’s deliberate decision 50 years

ago to accept responsibility and provide redress to

those harmed by federal law-enforcement officers’

misdeeds. This Court should grant review to restore

uniformity in this important area of federal law and

ensure that Congress’s policy judgment is given effect.

CONCLUSION

The petition should be granted.

Respectfully submitted.

JONATHAN C. BOND

Counsel of Record

JEFF LIU

LAVI M. BEN DOR

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036-4504

(202) 955-8500

JBond@gibsondunn.com

Counsel for Amici Curiae

October 31, 2024

APPENDIX

Table of Contents

List of Amici Curiae ......................................... App. 1

App. 1

LIST OF AMICI CURIAE

The following Members of Congress respectfully

submit the foregoing brief as amici curiae.

Rep. Harriet Hageman

(R-WY-AL)

Sen. Rand Paul

(R-KY)

Rep. Nikema Williams

(D-GA-5)

Sen. Ron Wyden

(D-OR)

Rep. Thomas Massie

(R-KY-4)

Sen. Cynthia M. Lummis

(R-WY)

Rep. Dan Bishop

(R-NC-8)