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

Supreme Court briefMar 7, 2025

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No. 24-362

In The

Supreme Court of the United States

CURTRINA MARTIN, ET AL.,

Petitioners,

UNITED STATES OF AMERICA, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF FOR PETITIONERS

Lisa C. Lambert

LAW OFFICE OF

LISA C. LAMBERT

245 N. Highland Ave.,

Suite 230-139

Atlanta, GA 30307

Patrick Jaicomo

Counsel of Record

Anya Bidwell

Dylan Moore

Jared McClain

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.,

Suite 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

Counsel for Petitioners

Additional counsel listed on inside cover.

Zack Greenamyre

MITCHELL SHAPIRO

GREENAMYRE & FUNT

881 Piedmont Ave.

Atlanta, GA 30309

Jeffrey R. Filipovits

SPEARS & FILIPOVITS

315 W. Ponce de Leon Ave.,

Suite 865

Decatur, GA 30030

QUESTIONS PRESENTED

1. Whether the Constitution’s Supremacy Clause

bars claims under the Federal Tort Claims Act when the

negligent or wrongful acts of federal employees have

some nexus with furthering federal policy and can reasonably be characterized as complying with the full

range of federal law.

2. Whether the discretionary-function exception is

categorically inapplicable to claims arising under the law

enforcement proviso to the intentional torts exception.

PARTIES TO THE PROCEEDING

Petitioners are Plaintiffs Curtrina Martin, individually and as parent and next friend of G.W., a minor, and

Hilliard Toi Cliatt. Respondents are Defendants the

United States of America, Lawrence Guerra, and Six

Unknown FBI Agents.

iii

TABLE OF CONTENTS

Page

Opinions Below ....................................................................1

Jurisdiction ...........................................................................1

Constitutional and Statutory Provisions Involved ........1

Statement of the Case ........................................................3

The Federal Tort Claims Act waives sovereign immunity for federal employees’ tortious acts, including police raids. ...............................5

II. The FBI raided an innocent family’s home. ...........11

III. The lower courts granted the government

sovereign immunity for the wrong-house

raid. ..............................................................................13

Summary of the Argument ..............................................16

Argument ...........................................................................19

The discretionary-function exception is categorically inapplicable to claims arising out of

the law-enforcement proviso. ...................................19

A. Claims based on discretionary functions

do not arise out of the law-enforcement

proviso. ..................................................................22

i. The exception does not reach intentional torts like those the proviso permits. ...................................................................22

ii. The lower courts’ expansion of the

exception creates needless conflict

with the proviso. ..............................................34

B. If the discretionary-function exception

and law-enforcement proviso conflict, the

proviso prevails. ...................................................40

II. The Supremacy Clause does not bar FTCA

claims because the FTCA is a federal statute.

.......................................................................................47

Conclusion ..........................................................................51

TABLE OF AUTHORITIES

Page

CASES

Alaska v. United States,

545 U.S. 75 (2005) ........................................................42

Ali v. Federal Bureau of Prisons,

552 U.S. 214 (2008) ......................................................43

Association of Westinghouse Salaried Employees

v. Westinghouse Electric Corp.,

348 U.S. 437 (1955) ......................................................49

Babb v. Wilkie,

589 U.S. 399 (2020) ......................................................22

Berkovitz v. United States,

486 U.S. 531 (1988) ....................................29, 33, 35–36

Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics,

403 U.S. 388 (1971) ........................................................4

Brownback v. King,

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

Butz v. Economou,

438 U.S. 478 (1978) ........................................................4

C.M. v. United States,

672 F. Supp. 3d 288 (W.D. Tex. 2023) .......................36

Caban v. United States,

671 F.2d 1230 (2d Cir. 1982) .......................................38

Campos v. United States,

888 F.3d 724 (5th Cir. 2018) .......................................37

Carlson v. Green,

446 U.S. 14 (1980) ..........................................3, 9–10, 39

Carter v. United States,

604 U.S. ___, 145 S. Ct. 519 (2025) ............................36

Chadd v. United States,

794 F.3d 1104 (9th Cir. 2015) .....................................44

Cope v. Cope,

137 U.S. 682 (1891) ................................................23–24

Dalehite v. United States,

346 U.S. 15 (1953) ..........................20, 27–28, 30–31, 50

Denson v. United States,

574 F.3d 1318 (11th Cir. 2009) .............5, 14–16, 47–50

Department of Commerce v. New York,

588 U.S. 752 (2019) ......................................................43

Dolan v. USPS,

546 U.S. 481 (2006) ......................................................45

Duncan v. Walker,

533 U.S. 167 (2001) ......................................................39

Dykstra v. Bureau of Prisons,

140 F.3d 791 (8th Cir. 1998) .......................................37

Eastern Air Lines, Inc. v. Union Trust Co.,

221 F.2d 62 (D.C. Cir. 1955) .......................................29

Egbert v. Boule,

596 U.S. 482 (2022) ........................................................4

Esquivel v. United States,

21 F.4th 565 (9th Cir. 2021) ........................................37

FDIC v. Meyer,

510 U.S. 471 (1994) ........................................................6

vii

Feres v. United States,

340 U.S. 135 (1950) ....................................................5–6

Fischer v. United States,

603 U.S. 480 (2024) ......................................................26

Garcia v. United States,

826 F.2d 806 (9th Cir. 1987) .................................38–39

Gray v. Bell,

712 F.2d 490 (D.C. Cir. 1983) .....................................38

Hatahley v. United States,

351 U.S. 173 (1956) ..........................................29, 32–34

In re Neagle,

135 U.S. 1 (1890) ..........................................................48

Indian Towing Co. v. United States,

350 U.S. 61 (1955) ............................................28, 50–51

Kordash v. United States,

51 F.4th 1289 (11th Cir. 2022) ........................14–15, 48

Kosak v. United States,

465 U.S. 848 (1984) ................................................24, 35

Levin v. United States,

568 U.S. 503 (2013) ....................................................7–8

Linder v. United States,

937 F.3d 1087 (7th Cir. 2019) .....................................38

Martin v. United States,

2022 WL 18263039 (N.D. Ga. Dec. 30, 2022)

..............................................................................1, 15, 48

Martin v. United States,

2024 WL 1716235 (11th Cir. Apr. 22, 2024)

..................................................................1, 11–13, 15–16

viii

Martin v. United States,

631 F. Supp. 3d 1281 (N.D. Ga. 2022)

........................................................................1, 11–14, 34

Medina v. United States,

259 F.3d 220 (4th Cir. 2001) .................................37–38

Millbrook v. United States,

569 U.S. 50 (2013) ......................................10, 21, 38, 43

Molzof v. United States,

502 U.S. 301 (1992) ......................................................25

Moor v. County of Alameda,

411 U.S. 693 (1973) ......................................................49

Nguyen v. United States,

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

......................................................5, 13, 38, 40–41, 47, 50

Pennington v. United States,

48 Ct. Cl. 408 (1913).....................................................42

POM Wonderful LLC v. Coca-Cola Co.,

573 U.S. 102 (2014) ................................................44–45

Pooler v. United States,

787 F.2d 868 (3d Cir. 1986) .........................................38

RadLAX Gateway Hotel, LLC

v. Amalgamated Bank,

566 U.S. 639 (2012) ......................................................43

Rayonier Inc. v. United States,

352 U.S. 315 (1957) ................................................28, 51

Richards v. United States,

369 U.S. 1 (1962) ..........................................................19

Second Employees’ Liability Cases,

223 U.S. 1 (1912) ....................................................49–50

Shivers v. United States,

1 F.4th 924 (11th Cir. 2021) ..................................15, 36

Simmons v. Himmelreich,

578 U.S. 621 (2016) ................................................43, 45

Sutton v. United States,

819 F.2d 1289 (5th Cir. 1987) .....................................39

Tennessee Wine & Spirits Retailers Ass’n

v. Thomas,

588 U.S. 504 (2019) ......................................................44

Thacker v. TVA,

587 U.S. 218 (2019) ..........................................45, 48–49

United States v. Aetna Casualty & Surety Co.,

338 U.S. 366 (1949) ......................................................35

United States v. Castleman,

572 U.S. 157 (2014) ......................................................44

United States v. Gaubert,

499 U.S. 315 (1991) ............................................7, 29–36

United States v. Neustadt,

366 U.S. 696 (1961) ........................................................8

United States v. Shearer,

473 U.S. 52 (1985) ..............................................8, 20–21

United States v. United States Trust Co.,

350 U.S. 907 (1955) ......................................................29

United States v. Varig Airlines,

467 U.S. 797 (1984) ..............................17, 20, 29–30, 34

United States v. Yellow Cab Co.,

340 U.S. 543 (1951) ......................................................35

Vasquez v. Smith,

576 S.E.2d 59 (Ga. Ct. App. 2003) .......................33–34

West Virginia v. EPA,

597 U.S. 697 (2022) ......................................................36

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023) .......................21, 25, 36, 38

CONSTITUTIONAL AND STATUTORY PROVISIONS

28 U.S.C. 1254(1) .................................................................1

28 U.S.C. 1346(b)(1).................................2, 6, 19, 33, 48, 50

28 U.S.C. 2674 ......................................................................6

28 U.S.C. 2676 ....................................................................45

28 U.S.C. 2680 ................................................................7, 42

28 U.S.C. 2680(a) ...........................2, 4, 7, 13, 19, 24–26, 40

28 U.S.C. 2680(h) ...........................3–4, 7–10, 19–23, 40–43

5 U.S.C. 554(d) ...................................................................27

5 U.S.C. 701(a)(2) ...............................................................27

Administrative Procedure Act,

Pub. L. No. 79-404, 60 Stat. 237 (1946) .....................26

Act to Amend Reorganization Plan No. 2 of 1973,

Pub. L. No. 93-253, 88 Stat. 50 (1974) .........................9

Georgia Code Annotated 51-1-13 ....................................34

Legislative Reorganization Act of 1946,

Pub. L. No. 79-601, 60 Stat. 812 (1946) .................7, 20

Reorganization Act of 1945,

Pub. L. No. 79-263, 59 Stat. 613 (1945) .....................26

United States Constitution

art. VI, cl. 2 ...........................................................1–2, 47

OTHER AUTHORITIES

119 Cong. Rec. 23217 (1973) ...............................................8

Andrew H. Malcolm, Drug Raids Terrorize 2

Families—by Mistake, N.Y. Times (Apr. 29,

1973) ................................................................................8

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012)................42

Black’s Law Dictionary (3d ed. 1933) .............................25

Cornelius J. Peck, The Federal Tort Claims Act:

A Proposed Construction of the Discretionary

Function Exception, 31 Wash. L. Rev. & State

Bar J. 207 (1956) ....................................................26, 31

Dennis Montgomery, The Night of Terror: “We

Made a Mistake”, Wash. Post (Apr. 30, 1973) ...........8

Gregory C. Sisk, The Continuing Drift of Federal

Sovereign Immunity Jurisprudence, 50 Wm.

& Mary L. Rev. 517 (2008) ...................................32–33

Hearings on Reorganization Plan No. 2 of 1973

before the Subcomm. on Reorganization,

Rsch., and Int’l Organizations of the S. Comm.

on Gov’t Operations, 93d Cong., 1st Sess., pt.

3 (1973) ........................................................................8–9

John C. Boger et al., The Federal Tort Claims Act

Intentional Torts Amendment, 54 N.C. L.

Rev. 497 (1976) .........................................................9, 46

xii

Linda Eardley, Drug Agents Sued After Raid on

Home, St. Louis Post-Dispatch (Apr. 25, 1973)

..........................................................................................8

Reorganization Plan No. 1 of 1947,

§ 101(a), 5 U.S.C. App. 1 .............................................27

Office of Attorney General, Final Report of the

Attorney General’s Committee on Administrative Procedure (1941) ............................................27

S. Rep. No. 93-588 (1973)................................10–11, 23, 46

OPINIONS BELOW

The Eleventh Circuit’s opinion, Pet. App. 1a, is unreported but available as Martin v. United States, 2024

WL 1716235 (11th Cir. Apr. 22, 2024). The district

court’s opinion, granting the government reconsideration and dismissing the case, Pet. App. 20a, is unreported but available as Martin v. United States, 2022

WL 18263039 (N.D. Ga. Dec. 30, 2022), and the district

court’s original opinion, granting the government summary judgment in part, Pet. App. 33a, is reported as

Martin v. United States, 631 F. Supp. 3d 1281 (N.D. Ga.

2022).

JURISDICTION

The Eleventh Circuit entered its opinion below on

April 22, 2024, and denied rehearing on May 30. Justice

Thomas granted a 30-day extension of the period for filing a petition for a writ of certiorari. Petitioners timely

filed their petition on September 27 and invoked this

Court’s jurisdiction under 28 U.S.C. 1254(1). This Court

granted the petition on January 27, 2025.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Supremacy Clause of the United States Constitution provides:

This Constitution, and the Laws of the United

States which shall be made in Pursuance thereof;

and all Treaties made, or which shall be made, under the Authority of the United States, 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, cl. 2.

One such law of the United States is the Federal Tort

Claims Act. It provides:

Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive

jurisdiction of civil actions on claims against the

United States, for money damages * * * 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.

28 U.S.C. 1346(b)(1). But:

The provisions of this chapter and section 1346(b)

of this title shall not apply to—

(a) Any claim based upon an act or omission of an

employee of the Government, exercising due

care, in the execution of a statute or regulation,

whether or not such statute or regulation be

valid, or based upon the exercise or performance

or the failure to exercise or perform a discretionary function or duty on the part of a federal

agency or an employee of the Government,

whether or not the discretion involved be abused.

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract

rights: Provided, That, with regard to acts or

omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this

title shall apply to any claim arising * * * out of

assault, battery, false imprisonment, false arrest,

abuse of process, or malicious prosecution. For

the purpose of this subsection, “investigative or

law enforcement officer” means any officer of the

United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

28 U.S.C. 2680(a), (h).

STATEMENT OF THE CASE

Petitioners are the innocent victims of an FBI

wrong-house raid, during which federal law enforcement officers committed assault, battery, and false imprisonment. Congress amended the Federal Tort Claims

Act to permit individuals like Petitioners to bring these

claims through the law-enforcement proviso. 28 U.S.C.

2680(h); Carlson v. Green, 446 U.S. 14, 19–20 (1980). Yet

the Eleventh Circuit dismissed Petitioners’ claims, reinstating the sovereign immunity Congress waived

through the FTCA.

This incongruous result grows from a distortion of

the separation of powers. As this Court recently ex-

plained, “creating a cause of action is a legislative endeavor” because “Congress is far more competent than

the Judiciary to weigh [] policy considerations.” Egbert

v. Boule, 596 U.S. 482, 491 (2022) (cleaned up). Through

the law-enforcement proviso, Congress did just that. 1

But the lower courts have overridden the legislature’s

prerogative by restricting or—as here—outright barring the cause of action Congress provided. In the process, they have undermined our constitutional structure

and created statutory conflict where none exists.

This Court has never found any overlap between the

law-enforcement proviso, 28 U.S.C. 2680(h), and the discretionary-function exception, 28 U.S.C. 2680(a). While

this exception reclaims sovereign immunity from the

FTCA when claims are based on policy functions, the

proviso waives sovereign immunity for certain intentional torts committed by law enforcement officers,

which do not require courts to consider policy at all. Yet

most circuit courts have concluded that the provisions

conflict, and all but one have resolved the conflict in favor of the exception.

This is wrong for two reasons: First, the discretionary-function exception reaches only acts authorized by

an established agency policy. It does not reach commonlaw torts committed outside agency policy. Properly

See Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388, 421 (1971) (Burger, C.J., dissenting) (calling

“for a workable remedy” from Congress for “error and deliberate

misconduct by law enforcement officials”); Butz v. Economou, 438

U.S. 478, 524 (1978) (Rehnquist, J., concurring in part) (“Congress,

making just these sorts of judgments * * * , has amended the Federal Tort Claims Act * * * to allow suits against the United States

on the basis of certain intentional torts[.]”).

understood, the exception addresses a class of conduct

that is categorically distinct from the class covered by

the intentional torts in the law-enforcement proviso.

Second, in the rare instance that the exception and proviso could conceivably intersect, the FTCA’s text, structure, and history show that the proviso exempts its

claims from Section 2680’s reinstatement of sovereign

immunity.

The Eleventh Circuit—relying on the second reason

above—is the only circuit to correctly conclude that the

discretionary-function exception does not apply to lawenforcement proviso claims. Nguyen v. United States,

556 F.3d 1244, 1257 (2009). But shortly after it did, the

circuit careened back in the wrong direction—holding

that the Constitution’s Supremacy Clause paradoxically

prevents Congress from waiving sovereign immunity

through a federal statute. See, e.g., Denson v. United

States, 574 F.3d 1318, 1348 (2009).

The Eleventh Circuit and its sister courts now find

themselves in territory uncharted by Congress. If victims of a wrong-house raid cannot find a remedy under

the FTCA, the law-enforcement proviso is lost. This

Court should correct course.

The Federal Tort Claims Act waives sovereign

immunity for federal employees’ tortious acts,

including police raids.

Passed in 1946, the Federal Tort Claims Act “was

not an isolated and spontaneous flash of congressional

generosity.” Feres v. United States, 340 U.S. 135, 139

(1950). Rather, the Act was “the culmination of a long

effort to mitigate unjust consequences of sovereign

immunity from suit” and address the “multiplying number of remediless 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.” Id. at 139–140.

To accomplish these purposes, the FTCA provides a

federal cause of action for damages, “allow[ing] a plaintiff to bring certain state-law tort suits against the Federal Government.” Brownback v. King, 592 U.S. 209,

210–211 (2021). The Act includes a broad grant of jurisdiction and a broad waiver of sovereign immunity for

claims that satisfy six criteria:

Subject to the provisions of chapter 171 of this title,[2] the district courts * * * shall have exclusive

jurisdiction of civil actions on claims [1] against

the United States, [2] for money damages, * * *

[3] for injury or loss of property, or personal injury or death [4] caused by the negligent or

wrongful act or omission of any employee of the

Government [5] while acting within the scope of

his office or employment, [6] 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.

28 U.S.C. 1346(b)(1); see also FDIC v. Meyer, 510 U.S.

471, 477 (1994); 28 U.S.C. 2674 (“The United States shall

be liable * * * in the same manner and to the same extent

as a private individual under like circumstances[.]”).

“Any claim” that satisfies Section 1346(b)(1) may still

Chapter 171 of Title 28 includes 28 U.S.C. 2671–2680.

be defeated by sovereign immunity, however, if it falls

within the “Exceptions” in Section 2680, for which “[t]he

provisions of [chapter 171] and section 1346(b) of this title shall not apply[.]” 28 U.S.C. 2680. These exceptions

exclude from the FTCA’s waiver of sovereign immunity

the 13 categories of claims listed in 28 U.S.C. 2680(a)–

(n). 3

Among these exceptions are the so-called discretionary-function and intentional-torts exceptions,4 28 U.S.C.

2680(a), (h).

The discretionary-function exception reinstates sovereign immunity for “[a]ny claim * * * based upon the

exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a

federal agency or an employee of the Government[.]” 28

U.S.C. 2680(a). This discretionary-function exception

precludes claims for acts based on federal regulations,

United States v. Gaubert, 499 U.S. 315, 324 (1991), or legally conferred discretion “based on considerations of

In margin comments to the original 1946 enactment of the

FTCA, the exceptions were described as: (a) (“Act, etc., in execution of statute.”); (b) (“Loss of letters, etc.”); (c) (“Assessment of

tax, etc.”); (d) (“Suits in admiralty.”); (e) ([no description]);

(f) (“Quarantine.”); (g) (“Injury to vessels, etc.” [since repealed]);

(h) (“Assault, etc.”); (i) (“Fiscal operations of Treasury.”);

(j) (“Combatant activities.”); (k) (“Foreign country.”); (l) (“TVA.”);

(m) ([not in original Act]); (n) ([not in original Act]). Legislative Reorganization Act of 1946, Pub. L. No. 79-601, 60 Stat. 812, 845–846

(1946).

Neither shorthand description is apt. See United States v.

Gaubert, 499 U.S. 315, 324–325 & n.7 (1991) (2680(a) includes some

non-discretionary acts and excludes some discretionary ones);

Levin v. United States, 568 U.S. 503, 507 n.1 (2013) (2680(h) includes

some negligent acts and excludes some intentional ones).

public policy,” id. at 322–323 (cleaned up). For acts in the

latter category, just any discretion will not do. Because

the exception concerns policy judgments, there “are obviously discretionary acts” that do not trigger the exception because they are not “based on the purposes

that [a] regulatory regime seeks to accomplish.” Id. at

325 n.7.

The intentional-torts exception reinstates sovereign

immunity for “[a]ny claim arising out of assault, battery,

false imprisonment, false arrest, malicious prosecution,

abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights[.]” 28 U.S.C.

2680(h). This intentional-torts exception does not, however, remove from the FTCA’s waiver of sovereign immunity “all intentional torts, e.g., conversion and trespass,” and the exception also reinstates sovereign immunity for “certain torts, e.g., misrepresentation, that

may arise out of negligent conduct.” Levin v. United

States, 568 U.S. 503, 507 n.1 (2013) (citing United States

v. Neustadt, 366 U.S. 696, 702 (1961)); see also United

States v. Shearer, 473 U.S. 52, 55 (1985) (plurality opinion) (noting that 2680(h) covers claims that “sound in

negligence but stem from a battery”).

In 1974, Congress amended the FTCA in response to

a pair of federal wrong-house raids in Collinsville, Illinois, that made national news the year before. 5 This

See, e.g., Andrew H. Malcolm, Drug Raids Terrorize 2 Families—by Mistake, N.Y. Times (Apr. 29, 1973); Linda Eardley, Drug

Agents Sued After Raid on Home, St. Louis Post-Dispatch (Apr.

25, 1973); Dennis Montgomery, The Night of Terror: “We Made a

Mistake”, Wash. Post (Apr. 30, 1973); see also 119 Cong. Rec. 23217,

23242–23258 (1973) (cataloging news reports); Hearings on

amendment added the law-enforcement proviso to the

FTCA. Act to Amend Reorganization Plan No. 2 of 1973,

Pub. L. No. 93-253, 88 Stat. 50 (1974). The proviso is an

exception to the FTCA’s exceptions. It re-waives the

sovereign immunity otherwise reinstated in Section

2680 “to create a cause of action against the United

States for intentional torts committed by federal law enforcement officers.” Carlson, 446 U.S. at 19–20. The proviso is located in Section 2680(h), which provides:

The provisions of this chapter and section 1346(b)

of this title shall not apply to—

(h) Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract

rights: Provided, That, with regard to acts or

omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this

title shall apply to any claim arising * * * out of

assault, battery, false imprisonment, false arrest,

abuse of process, or malicious prosecution. For

the purpose of this subsection, “investigative or

law enforcement officer” means any officer of the

Reorganization Plan No. 2 of 1973 before the Subcomm. on Reorganization, Rsch., and Int’l Organizations of the S. Comm. on Gov’t

Operations, 93d Cong., 1st Sess., pt. 3, at 461–483 (1973) (testimony

from victims of Collinsville raids); see also generally John C. Boger

et al., The Federal Tort Claims Act Intentional Torts Amendment,

54 N.C. L. Rev. 497, 499–517 (1976).

United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

See also Millbrook v. United States, 569 U.S. 50, 54

(2013) (assembling Section 2680(h) as above, less the final sentence).

The point of the proviso is to ensure that “innocent

individuals who are subjected to raids [of the type conducted in Collinsville and Bivens] will have a cause of

action against * * * the Federal Government.” Carlson,

446 U.S. at 20 (quoting S. Rep. No. 93-588, at 3 (1973)).

The Senate Report cited in Carlson clarifies the proviso’s operation. Although public outrage toward the

Collinsville raids spurred Congress to act, it did not

cabin the proviso to the facts—or the torts—at issue in

those raids. See S. Rep. 93-588, at 3–4. Instead, the language Congress enacted provides a remedy for a swath

of tortious conduct by federal law enforcement officers

that the FTCA could not otherwise address due to its

intentional-torts exception. See id. at 1 (explaining that

the purpose of the bill containing the proviso was “to

provide a remedy against the United States for the intentional torts of its investigative and law enforcement

officers”).

To achieve this purpose, Congress (in conjunction

with the Department of Justice) crafted the proviso as

a statutory “counterpart to * * * Bivens” that extends

beyond “constitutional tort situations[.]” S. Rep. 93-588,

at 3–4; see also Carlson, 446 U.S. at 20 (“Congress views

FTCA and Bivens as parallel, complementary causes of

action[.]”). When the proviso was enacted, both the legislative and executive branches understood it to “submit

the Government to liability” in “any case in which a Federal law enforcement agent commit[s]” an enumerated

“tort while acting within the scope of his employment or

under color of Federal law.” S. Rep. 93-588, at 4.

This case presents quintessential proviso claims.

II.

The FBI raided an innocent family’s home.

In suburban Atlanta sits a house at 3756 Denville

Trace. Built on a quarter-acre lot in 2000, the four-bedroom, three-bathroom home has an attached two-car

garage, tasteful landscaping, and a manicured lawn. In

2017, it was home to a family: Petitioners, Hilliard Toi

Cliatt; his partner, Curtrina Martin; and her seven-yearold son, G.W.

Before dawn on October 18, 2017, FBI Special Agent

Lawrence Guerra led a six-agent SWAT team to 3756

Denville Trace. J.A. 4, 21. Failing to confirm the address

clearly visible on the mailbox, Guerra mistakenly believed he had arrived at 3741 Landau Lane—the home

of gang member Joseph Riley and the address for which

Guerra had a search warrant. Guerra knew that the target house had its address on the mailbox. He also knew

that neither Riley nor his associates were known to

drive a black Camaro; yet when Guerra saw a black Camaro in Petitioners’ driveway that morning, he used the

car as a landmark for his team to identify their target.

Pet. App. 3a–5a, 7a, 38a & n.3.

Ignoring these and other conspicuous features that

would have averted their mistake, the heavily armed

SWAT team smashed in the front door of 3756 Denville

Trace with a battering ram, detonated a flashbang grenade in the home’s entryway, and rushed inside. Pet.

App. 7a–8a; J.A. 5, 22.

The explosion startled Petitioners awake. The family

immediately believed criminals were invading their

home. Martin’s first instinct was to run to her son’s room

to shield him from the intruders, but Cliatt, acting to

protect his partner, grabbed Martin and pulled her into

a walk-in closet. Meanwhile, seven-year-old G.W. hid under his covers, as his mother screamed, “I need to go get

my son, * * * I need to go get my son.” Pet. App. 8a,

39a, 76a–77a, 88a; J.A. 5–6, 22–23.

Masked FBI agents shoved open the door to the

closet where Cliatt and Martin had barricaded themselves. Agents dragged Cliatt out and handcuffed him.

And Martin—half naked—fell to the floor in front of a

room full of hostile strangers. As Martin pleaded with

one of the agents to let her see her son, the SWAT team

pointed guns at her and Cliatt. Pet. App. 8a, 88a–89a;

J.A. 5–6, 22–23.

The agents aggressively questioned Cliatt. But

when he told them his address—3756 Denville Trace—

“all the noise just ended.” Pet. App. 8a, 79a. Realizing

the SWAT team had raided the wrong house, Agent

Guerra allowed Cliatt to stand up, unshackled him, and

said, “I’ll be right back.” Id. at 9a, 79a–80a; see also J.A.

7, 24.

Guerra and his team then went down the block to

3741 Landau Lane, where they conducted another raid

at the correct address. Guerra returned to 3756 Denville

Trace, apologized, documented the property damage he

caused, handed Cliatt a business card with his supervisor’s information, and left the family in stunned disbelief. Pet. App. 9a, 82a–83a.

Guerra would later claim that, while he had input

“3741 Landau Lane” into his GPS, it had directed him to

3756 Denville Trace instead. But Guerra could not prove

this—he threw the GPS away before Petitioners could

examine it in discovery. Pet. App. 6a, 9a, 40a–41a.

III.

The lower courts granted the government sovereign immunity for the wrong-house raid.

1. Petitioners sued the United States under the

FTCA for the tortious acts of the FBI agents who raided

their home, pleading five counts. 6 Pet. App. 60a; J.A. 8–

14, 25–30. Citing the discretionary-function exception,

28 U.S.C. 2680(a), the government moved for summary

judgment. The district court granted it in part. Pet. App.

67a.

The district court applied Eleventh Circuit precedent holding that the discretionary-function exception

does not bar claims that fall within the FTCA’s law-enforcement proviso. See Nguyen, 556 F.3d at 1260

(“[W]here * * * the § 2680(h) proviso applies to waive

sovereign immunity, the exception to waiver contained

in § 2680(a) is of no effect.”). So the court broke Petitioners’ FTCA claims into two groups: four proviso claims

Martin and G.W. filed suit separately from Cliatt, but the district court consolidated the cases. Petitioners also asserted a claim

against Guerra under Bivens, but the Eleventh Circuit granted

Guerra qualified immunity on the basis that “the law at the time did

not clearly establish that Guerra’s preparatory steps before the

warrant execution would violate the Fourth Amendment.” Pet.

App. 15a. The questions before the Court concern only Petitioners’

FTCA claims.

(false arrest, false imprisonment, assault, and battery,

J.A. 8–10, 25–27) and three non-proviso claims (negligence, trespass, and infliction of emotional distress, J.A.

10–14, 27–30). Pet. App. 59a–60a.

The district court denied summary judgment for

three of the four proviso claims. It held that the record

did not support a claim for false arrest, Pet. App. 63a,

but did support a claim for false imprisonment because

the record “shows that the 3741 Landau and Riley warrants were void as to Plaintiffs, and defendants have not

demonstrated that the arrest was otherwise legal,” id.

at 65a. Petitioners’ assault and battery claims likewise

could proceed because the FBI agents had unlawfully

touched Petitioners. Id. at 65a–67a.

But the district court granted summary judgment on

the non-proviso claims under the discretionary-function

exception. Because “Guerra’s efforts in preparing to execute the warrant at 3741 Landau involved judgment

and choice” and “no statute, regulation or even internal

operating procedure prescrib[ed] Guerra’s course of action,” the district court concluded that his decision “involve[d] policy considerations and should not be subject

to judicial second-guessing.” Pet. App. 57a–58a (citations omitted).

2. A month after the district court allowed Petitioners’ proviso claims to proceed, the Eleventh Circuit issued Kordash v. United States, 51 F.4th 1289 (11th Cir.

2022). Kordash extended earlier circuit precedent holding that the Supremacy Clause bars an FTCA claim if

the government employee’s acts had “some nexus with

furthering federal policy” and could “reasonably be

characterized as complying with the full range of federal

law.” Id. at 1293–1294 (quoting Denson, 574 F.3d at

1348).

The government moved for reconsideration based on

Kordash (though it had not raised the Supremacy

Clause as an affirmative defense), and the district court

granted it. Pet. App. 25a. “Because Guerra was acting

within the scope of his discretionary duty, and his actions did not violate the Fourth Amendment,” the district court concluded that the Supremacy Clause barred

Petitioners’ remaining FTCA claims. Id. at 27a.

3. Petitioners appealed, but the Eleventh Circuit affirmed. Like the district court, the circuit court separated Petitioners’ proviso and non-proviso claims. It

then held that the discretionary-function exception

barred the non-proviso claims and the Supremacy

Clause barred the proviso claims.

According to the circuit court, “[t]he discretionary

function exception applies unless a source of federal law

‘specifically prescribes’ a course of conduct.” Pet. App.

16a (quoting Shivers v. United States, 1 F.4th 924, 931

(11th Cir. 2021)). No federal prescription existed here,

the court found, because “the FBI did not have stringent

policies or procedures in place that dictate how agents

are to prepare for warrant executions.” Pet. App. 17a–

18a; id. at 18a (“[T]he preparatory actions Guerra took

before the warrant execution” were “‘susceptible to policy analysis.’” (citation omitted)). “Although it is unfortunate that * * * Guerra executed the warrant at the

wrong house,” the court concluded, “his actions, nevertheless, ‘fall squarely within the discretionary function

exception.’” Id. at 18a (quoting Shivers, 1 F.4th at 929).

As for Petitioners’ proviso claims, the court explained that, “[s]imilar to the discretionary function

exception, the Supremacy Clause ensures that states do

not impede or burden the execution of federal law.” Pet.

App. 16a–17a (citing Denson, 574 F.3d at 1336–1337).

Because Guerra “acted within the scope of his discretionary authority” in conducting the raid and was otherwise entitled to qualified immunity, the court held that

the Supremacy Clause foreclosed Petitioners’ proviso

claims. Pet. App. 19a.

4. The Eleventh Circuit denied rehearing, and Petitioners requested this Court’s review. Although, in the

government’s view, the Eleventh Circuit answers both

questions presented incorrectly, the government opposed certiorari. BIO at 8, 21–22. Because it believes the

decision below “correctly held that petitioners’ claims

are barred, and no court of appeals * * * would have

reached a different result,” the government argued that

the Court should deny review. Id. at 8.

This Court granted the petition.

SUMMARY OF THE ARGUMENT

The Court should restore the will of Congress expressed in the text of the FTCA and eliminate the

judge-made exceptions that bar recovery for proviso

claims—here, assault, battery, and false imprisonment.

Congress originally excluded intentional torts, like

assault and battery, from the FTCA. But after the Collinsville raids, Congress reversed course. Through the

law-enforcement proviso, Congress waived sovereign

immunity for certain intentional torts by law enforcement officers. Congress meant what it said in the proviso, and neither the discretionary-function exception

nor the Supremacy Clause stands in the way. 7

I. The discretionary-function exception is categorically inapplicable to claims arising under the law-enforcement proviso. Over the years, however, lower

courts have expanded the discretionary-function exception, creating conflict with the proviso where none exists. These interpretations have strayed so far from the

FTCA’s text that even claims arising out of a wronghouse raid—the exact scenario Congress created the

proviso to address—are now excluded.

The Court can solve the problem in one of two ways:

First, by holding that the sort of claims that arise under

the proviso do not implicate the discretionary-function

exception. Second, by holding that the proviso removes

its claims from Section 2680’s reinstatement of sovereign immunity.

A. The law-enforcement proviso and discretionaryfunction exception do not conflict. The former waives

sovereign immunity for ordinary common-law torts

committed by law enforcement officers that are not

based on policy. The latter reinstates sovereign immunity to prevent judicial policy-making via tort suits, with

particular “emphasis upon protection for regulatory activities[.]” United States v. Varig Airlines, 467 U.S. 797,

814 (1984). Both the statutory text and this Court’s

cases interpreting it emphasize the exception’s regulatory nature. Indeed, this Court has never observed the

Petitioners address the questions presented in reverse order

because the government has declined to defend the first question

presented and because we believe, following the Court’s refinement

of the second question presented, the issues flow more logically in

this order.

discretionary-function exception to overlap with the intentional-torts exception, let alone the law-enforcement

proviso.

B. If the provisions did conflict, the law-enforcement

proviso should prevail for six reasons. (1) The proviso’s

text expressly negates the reinstatement of sovereign

immunity in Section 2680’s preamble. The preamble provides that the FTCA “shall not apply” to certain claims,

but the proviso retorts that the FTCA “shall apply” to

claims arising out of it. (2) Similarly, unlike the definition

of “investigative or law enforcement officer” in Section

2680(h), the proviso does not just apply “for the purpose

of this subsection.” The proviso (3) is more specific and

(4) was enacted more recently than the exception. (5)

Applying the exception (as interpreted by the lower

courts) to proviso claims would undermine the proviso

in its core applications. (6) It would also defeat the

FTCA’s order of operation, which gives the proviso the

last word.

II. The Supremacy Clause cannot restrict legislative

enactments of Congress. The Eleventh Circuit’s holding

to the contrary upends our constitutional design. In the

FTCA, Congress incorporated state tort elements into

federal law. This incorporation means that there can be

no conflict between federal employees’ actions that have

“some nexus with furthering federal policy” and an actual federal law—the FTCA—that waives immunity for

many of those actions. But the Eleventh Circuit created

an exception to Congress’s power to determine the law

of the land in the name of preserving that power. The

Court should make sure that the legislative prerogative

stays with Congress.

ARGUMENT

While executing a raid at the wrong house, federal

law enforcement officers subjected Petitioners to assault, battery, and false imprisonment. These claims fall

squarely within the FTCA’s law-enforcement proviso

that Congress enacted to provide a remedy for federal

wrong-house raids. On this point, the statutory text is

unmistakable:

[W]ith regard to acts or omissions of investigative or law enforcement officers of the United

States Government, [the FTCA] shall apply to

any claim arising * * * out of assault, battery,

false imprisonment, false arrest, abuse of process,

or malicious prosecution.

28 U.S.C. 2680(h).

At the government’s urging, however, the lower

courts have effectively read the law-enforcement proviso out of the FTCA. We offer the Court several paths

to restore the cause of action Congress enacted.

The discretionary-function exception is categorically inapplicable to claims arising out of

the law-enforcement proviso.

Congress designed the FTCA “to remove the sovereign immunity of the United States from suits in tort

and, with certain specific exceptions, to render the Government liable in tort as a private individual would be

under like circumstances.” Richards v. United States,

369 U.S. 1, 6 (1962); 28 U.S.C. 1346(b)(1), 2680. Two exceptions are relevant here: the discretionary-function

exception, 28 U.S.C. 2680(a); and the intentional-torts

exception, 28 U.S.C. 2680(h). Both have been part of the

FTCA since its original enactment in 1946. Legislative

Reorganization Act of 1946, Pub. L. No. 79-601, 60 Stat.

812, 845–846 (1946).

These exceptions serve different purposes. Through

the discretionary-function exception, “Congress wished

to prevent judicial ‘second-guessing’ of legislative and

administrative decisions grounded in social, economic,

and political policy through the medium of an action in

tort.” Varig Airlines, 467 U.S. at 814. At its core, the exception shields against tort suits that can be resolved

only by forcing the judiciary to assess “the validity of

legislation or discretionary administrative action,” like

decisions “of a regulatory nature,” “the expenditure of

Federal funds,” or “the execution of a Federal project[.]” Dalehite v. United States, 346 U.S. 15, 27 (1953)

(citation omitted).

“On the other hand, the common law torts of employees of regulatory agencies, as well as of other Federal

agencies,” are “within the scope of” the FTCA. Varig

Airlines, 467 U.S. at 810 (citation omitted). These “ordinary common-law torts” were “[u]ppermost in the collective mind of Congress” when it passed the FTCA.

Dalehite, 346 U.S. at 28 & n.19.

Still, Congress did not permit all such torts. To preclude recovery for certain intentional torts, Congress

enacted the intentional-torts exception, 28 U.S.C.

2680(h), which was designed to cover, among others,

claims “where some agent of the Government gets in a

fight with some fellow . . . [a]nd socks him.” Shearer, 473

U.S. at 55 (citation omitted).

But after the Collinsville raids, Congress saw the

error of its ways: If a federal law enforcement officer

does tortiously sock a fellow, it is only right that the government should provide a remedy. So Congress

amended the FTCA to revive certain intentional-tort

claims arising out of “deliberate attacks” by federal police. Shearer, 473 U.S. at 55. This amendment—the lawenforcement proviso—“extends the waiver of sovereign

immunity” to claims for “‘acts or omissions of investigative or law enforcement officers.’” Millbrook, 569 U.S. at

52–53 (quoting 28 U.S.C. 2680(h)).

Read together, the FTCA plays out like a tennis

point: Sovereign immunity applies when the government serves. If a plaintiff can return the ball with Section 1346(b) (waiving immunity), she may be able to

score. If, however, the government can volley back with

Section 2680 (reinstating immunity), the plaintiff loses—

unless the law-enforcement proviso allows her to send

the ball back across the net (re-waiving immunity). The

remainder of the point plays out like a typical tort suit.

But the lower courts have thrown out the rules. They

have expanded the discretionary-function exception beyond its text and purpose. 8 As a result, the courts have

created an unnecessary and unjustified conflict within

Section 2680.

The Court has two paths to fix this problem: It can

restore the proper balance to the FTCA by clarifying

that, properly understood, the discretionary-function

exception and the law-enforcement proviso address

The different ways in which the circuits have expanded the

discretionary-function exception are the subject of multiple circuit

splits. See Xi v. Haugen, 68 F.4th 824, 843 (3d Cir. 2023) (Bibas, J.,

concurring).

categorically different classes of acts, so the exception

does not bear on the proviso. See Part I(A), infra. Or the

Court could adopt a straightforward textual analysis under which the proviso overrides the discretionary-function exception if the two conflict. See Part I(B), infra.

Both paths lead to the same outcome in this case: Petitioners’ claims arising out of the assault, battery, and

false imprisonment that Agent Guerra and his SWAT

team committed as they reenacted the Collinsville raids

must be allowed to proceed under the proviso Congress

enacted to permit these exact claims.

A. Claims based on discretionary functions do

not arise out of the law-enforcement proviso.

After decades of consideration, the Court has never

suggested that the discretionary-function exception,

Section 2680(a), and the law-enforcement proviso, Section 2680(h), overlap. This is because Sections 2680(a)

and (h) address categorically distinct claims. And any interplay that may exist disappears entirely when the

claims are limited to those in the proviso.

The exception does not reach intentional

torts like those the proviso permits.

To understand why the discretionary-function exception is inapplicable to claims arising out of the lawenforcement proviso, we must understand both provisions. So we “start with the text of the statute[.]” Babb

v. Wilkie, 589 U.S. 399, 404 (2020).

1. The text of the law-enforcement proviso. Under

the intentional-torts exception, the FTCA “shall not

apply” to:

Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution,

abuse of process, libel, slander, misrepresentation, deceit, or interference with contract

rights[.]

Provided, however, the FTCA “shall apply” to “any

claim arising * * * out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution,” “with regard to acts or omissions of investigative or law enforcement officers of the United States

Government.” 28 U.S.C. 2680(h).

This proviso re-waives sovereign immunity. Its language is comprehensive and mandatory: The FTCA

shall apply to the specified claims if committed by a federal police officer. Congress created the proviso after

the Collinsville raids exposed a gap in the law: While the

FTCA waived sovereign immunity if a “mail truck

driver * * * negligently runs down a citizen on the

street[, ]the Federal Government is held harmless if a

federal narcotics agent intentionally assaults that same

citizen in the course of an illegal ‘no-knock’ raid.” S. Rep.

93-588, at 3.

Congress placed the proviso in 2680(h)—the intentional-torts exception. This structural choice communicates that Congress understood 2680(h) to be the barrier

to liability, not just for whatever remains after the discretionary-function exception is applied, but every time

law enforcement officers “act under color of law so as to

injure the public through search[es] and seizures[.]” S.

Rep. 93-588, at 4; see Cope v. Cope, 137 U.S. 682, 688–

689 (1891) (exception created in a later-enacted proviso

showed that Congress did not think a broader, prior-enacted provision in the statute already barred recovery).

Moreover, it would be nonsensical for Congress to

carve certain police torts out of Section 2680(h), knowing

full well that the same torts would be doomed by Section

2680(a). See Kosak v. United States, 465 U.S. 848, 858

(1984) (“[O]ur interpretation of the plain language of the

provision accords with what we know of Congress’ general purposes in creating exceptions to the Tort Claims

Act.”). If any ambiguity existed about the overlap of

Sections 2680(a) and (h), the law-enforcement proviso

put it to rest.

2. The text of the discretionary-function exception.

Proviso claims are not encompassed by Section 2680(a),

which provides that the FTCA “shall not apply” to:

(a) Any claim based upon an act or omission of an

employee of the Government, exercising due

care, in the execution of a statute or regulation,

whether or not such statute or regulation be

valid, or based upon the exercise or performance

or the failure to exercise or perform a discretionary function or duty on the part of a federal

agency or an employee of the Government,

whether or not the discretion involved be abused.

28 U.S.C. 2680(a) (discretionary-function exception underlined).

The discretionary-function exception is restricted to

claims “based upon” a “discretionary function” “on the

part of a federal agency or an employee,” which indicates that it is cabined to the actions of the government

in promulgating and administering a regulatory policy

for four reasons:

First, “discretionary function” is a term of art. Exercising a “discretionary function” requires the use of

power conferred by law in certain circumstances to fulfill a definite, policy-based end. In the legal context,

“[w]hen applied to public functionaries, discretion

means a power or right conferred upon them by law of

acting officially in certain circumstances[.]” Black’s Law

Dictionary 587 (3d ed. 1933). And “function” means,

“[o]ffice; duty; fulfillment of a definite end or set of ends

by correct adjustment of means.” Id. at 827. See also

Molzof v. United States, 502 U.S. 301, 307 (1992)

(“[W]here Congress borrows a term of art * * * it presumably knows and adopts the cluster of ideas that were

attached to each borrowed word[.]” (citation omitted)).

Second, the exception’s focus on administrative dis-

cretion is confirmed by the structure of the whole provision. The first half of 2680(a) (the due-care exception) refers to an “act or omission of an employee” executing a

statute or regulation. The second half (the discretionary-function exception), which builds from the first, is

limited to “a discretionary function or duty on the part

of a federal agency or an employee[.]” 28 U.S.C. 2680(a).

Congress’s choice of language shows that the discretion

at issue does not include the everyday choices of government employees, but the broader regulatory or policy

discretion vested by law. See Xi v. Haugen, 68 F.4th 824,

843 (3d Cir. 2023) (Bibas, J., concurring) (“These words

suggest that courts should look at the kind of activity

* * * not the action itself.”). Indeed, Section 2680(a) is

the only exception in the FTCA that refers to an

“agency.” This is reinforced by the exception’s requirement that the claim must be “based upon” the performance of a discretionary-function—rather than “ari-

sing” out of some act. Compare 28 U.S.C. 2680(a) (claim

“based upon”), with (b)–(c), (e), (h), (j)–(n) (claim “arising”). The “discretionary function” an employee performs, therefore, must be “based upon” advancing the

underlying regulatory or policy goal. An act without a

direct connection to the policy goal cannot be based on

it. See Cornelius J. Peck, The Federal Tort Claims Act:

A Proposed Construction of the Discretionary Function

Exception, 31 Wash. L. Rev. & State Bar J. 207, 212–

213, 228–229 (1956) (Peck).

Third, because the first half of the discretionaryfunction exception itself (discretion “on the part of a federal agency”) concerns administrative policy, the second

half of the exception (discretion “on the part of * * * an

employee of the Government”) should be construed as

limited to an agency’s policy decisions. See Fischer v.

United States, 603 U.S. 480, 487 (2024) (avoiding an interpretation of a general term that is broader than the

provision’s other terms). Just as plaintiffs cannot bring

an FTCA claim based on agency policy itself (the first

half), they cannot bring a claim based on the judgment

calls employees are legally empowered to make in furtherance of that policy (the second half).

Fourth, the historical context in which Congress

adopted the discretionary-function exception confirms

this technical understanding. In the two years preceding

the FTCA’s enactment, Congress passed two other statutes concerned with administrative functions that show

that a reader in 1947 would have understood “discretionary function” to mean agency action in furtherance of

some policy. See Reorganization Act of 1945, Pub. L. No.

79-263, 59 Stat. 613 (1945); Administrative Procedure

Act, Pub. L. No. 79-404, 60 Stat. 237 (1946).

In the Reorganization Act, instructing the President

to reorganize federal agencies, Congress repeatedly

used the word “function” to describe the power vested

by law in an agency. E.g., 59 Stat. at 615, Sec. 5(a)(4) (a

reorganization plan could not extend “any function beyond the period authorized by law for its exercise”). The

President understood “function” this same way. E.g.,

Reorg. Plan No. 1 of 1947, § 101(a), 5 U.S.C. App. 1

(“[A]ll functions vested by law in the Alien Property

Custodian * * * are transferred to the Attorney General[.]”).

In the APA, Congress required the separation of certain “functions” within federal agencies. 5 U.S.C. 554(d).

As with the discretionary-function exception, the APA

excluded from judicial review certain claims concerning

“agency action [] committed to agency discretion by

law.” 5 U.S.C. 701(a)(2). Then-Attorney General Robert

Jackson explained that the point was to limit judicial interference with the types of policy determinations

vested in the agencies’ discretion. Off. of Att’y Gen., Fi-

nal Report of the Attorney General’s Committee on Administrative Procedure 119 (1941). The examples he

gave—such as the likelihood that certain equipment will

reduce locomotive accidents and the amount of fertilizer

that can safely remain on apples—track the type of discretionary functions Section 2680(a) exempts from

FTCA liability. E.g., Dalehite, 346 U.S. at 37 (“[T]he

cabinet-level decision to institute the fertilizer export

program was a discretionary act[.]”).

Taken together, the text of Section 2680(a) indicates

that the discretionary-function exception applies only

when a claim requires a court to evaluate an employee’s

exercise of some power conferred on him to fulfill the

definite ends of an administrative regime. This limited

exception does not bear on suits alleging proviso torts

committed in workaday law enforcement.

3. The Court’s interpretation of the discretionaryfunction exception. The Court’s jurisprudence confirms

that “discretionary function” is a legislative term of art

that cannot be disentangled from regulatory policy. In

its earliest case construing the discretionary-function

exception, the Court stressed Congress’s focus on “discretionary administrative action” and “acts of a governmental nature or function.” Dalehite, 346 U.S. at 27–28

(emphasis added).

Over the decades, the Court has repeatedly applied

this understanding of “discretionary function” to determine whether the FTCA waives sovereign immunity—

all but one, negligence cases:

•

Dalehite v. United States (1953): Discretionary-

function exception protected cabinet-level decision to use wartime ingredients to manufacture

fertilizer for Europe, and the manufacturing that

caused an explosion was excepted from the

FTCA because it was done consistent with the

agency’s written specifications. 346 U.S. at 38–41.

•

Indian Towing Co. v. United States (1955): Once

the Coast Guard “exercised its discretion to operate a light[house],” it had a duty to do so with

due care. 350 U.S. 61, 69; see also Rayonier Inc. v.

United States, 352 U.S. 315, 318–321 (1957) (allowing FTCA claims against the Forest Service

for negligently allowing a wildfire to spread after

agreeing to fight the fire and exercising control

over the scene).

•

United States v. United States Trust Co. (1955):

Negligent operation of an air-traffic control

tower was not a discretionary function because

the government exercised its discretion “when it

[] decided to operate the tower, but the tower

personnel had no discretion to operate it negligently.” Eastern Air Lines, Inc. v. Union Tr. Co.,

221 F.3d 62, 77 (D.C. Cir. 1955), aff’d sub nom.

United States Tr. Co., 350 U.S. 907 (mem.).

•

Hatahley v. United States (1956): Federal agents’

seizure of horses outside of agency procedures

was not a discretionary function because their

“acts were wrongful trespasses not involving discretion on the part of the agents[.]” 351 U.S. 173,

181.

•

United States v. Varig Airlines (1984): Pursuant

to discretion vested by Congress to prescribe an

inspection regime for airplanes, the FAA adopted

a detailed “spot-check” system. 467 U.S. at 817.

“[T]he acts of FAA employees in executing the

‘spot-check’ program in accordance with agency

directives are protected by the discretionary

function exception[.]” Id. at 820.

•

Berkovitz v. United States (1988): Discretionaryfunction exception barred claims that challenged

an agency’s policy about the appropriate way to

regulate vaccines but did not bar claims alleging

that the agency approved vaccines without following a specific statutory and regulatory directive. 486 U.S. 531, 544–547.

•

United States v. Gaubert (1991): Discretionary-

function exception protected actions taken by

banking regulators, consistent with a formal

agency policy and adopted pursuant to a statutory grant of authority, under which the agency

authorized individual regulators to weigh the appropriateness of the agency’s supervisory actions

on a case-by-case basis. 499 U.S. at 330–334.

These cases distinguish between claims that require

courts to evaluate administrative policy decisions

(which are barred) and those that do not (which may proceed). The guiding principle is the separation of powers:

“Congress wished to prevent judicial ‘second-guessing’

of legislative and administrative decisions grounded in

social, economic, and political policy through the medium

of an action in tort.” Varig Airlines, 467 U.S. at 814; id.

at 813–814 (emphasizing the exception’s focus on the

government acting as a regulator). If it sounds obvious

that such claims should be barred, it is; the discretionary-function exception was added as a “clarifying

amendment” to spell out basic principles of judicial construction. Dalehite, 346 U.S. at 26–27.

Ultimately, the Court’s application of the discretionary-function exception shakes out into four buckets: (1)

“[I]f a regulation mandates particular conduct, and the

employee obeys the direction,” 2680(a) reinstates sovereign immunity, and the claim is barred. (2) If “established governmental policy, as expressed or implied by

statute, regulation, or agency guidelines, allows a Government agent to exercise discretion,” 2680(a) presumptively reinstates sovereign immunity, and the claim is

barred if the agent exercises discretion to further the

established policy. (3) “If [an] employee violates [a] mandatory regulation,” 2680(a) does not reinstate sovereign

immunity, and the claim can proceed. (4) If no statute,

regulation, or agency guideline confers discretion on an

employee to take an action, 2680(a) does not reinstate

sovereign immunity, and the claim can proceed.

Gaubert, 499 U.S. at 324.

This final bucket contains ordinary common-law

torts, unmoored from “established” policy concerns. 9

These include, as Gaubert explains, even torts involving

“obviously discretionary acts.” These torts do not trigger the exception because they are not committed while

exercising any discretion “based on the purposes that [a]

regulatory regime seeks to accomplish.” 499 U.S. at 325

n.7; see also id. at 335–337 (Scalia, J., concurring in part).

Absent an established policy that confers discretion to

take the action at issue, the separation-of-powers concerns central to the discretionary-function exception fall

away, and the case is ripe for adjudication.

4. The differences between the exception and the

proviso. Of course, federal regulatory policy does not

confer discretion on government functionaries to commit intentional torts like assault and battery. This exposes the discretionary-function exception’s categorical

inapplicability to proviso claims: At its core, the exception is a shield against suits sounding in negligence that

can be resolved only by forcing the judiciary to assess

“the validity of legislation or discretionary administrative action.” Dalehite, 346 U.S. at 27 (citation omitted).

The government’s political calculus in setting policies

See Peck 230–231 (explaining that, “where the act or omission

involved is not one which was directed, or a risk knowingly, deliberately, or necessarily encountered in the furtherance of the objectives or purposes for which authority was given, * * * courts are

free to use the ordinary principles of negligence” to decide the

claim).

and federal officials’ concomitant discretionary decisions

implementing them are too close for comfort—a concern

that is not present when a plaintiff has the burden to

meet the elements of an intentional tort.

It is no coincidence, then, that the only time this

Court considered the interaction between an intentional

tort and the discretionary-function exception, sovereign

immunity did not apply. Hatahley, 351 U.S. at 181. In

Hatahley, plaintiffs claimed that government agents illegally sold or destroyed their horses. Id. at 174. Even

though the agents acted “to enforce a federal statute

which they administer,” the Court concluded that their

acts were “wrongful trespasses.” Id. at 180–181. The

agents’ wrongful trespasses meant they—like federal

police executing a warrant at the wrong address—had

“no statutory authority” for their actions. Id. at 180. And

because the agents lacked statutory authority, the

Court did not need to consider the validity of the statute

under which the agents purported to act. Ibid. This, in

turn, meant there was no risk that the Court would second-guess congressional decision-making by applying

the elements of trespass to the case. Id. at 181. The discretionary-function exception did not apply. Ibid.

Other examples abound. The easiest is driving: “Although driving requires the constant exercise of discretion,” this discretion “can hardly be said to be grounded

in regulatory policy.” Gaubert, 499 U.S. at 325 n.7. Consider, too, the example of a U.S. Army B-29 airplane

crashing into the Empire State Building. 10 If the crash

This real-life example occurred in 1945 and may have been the

final impetus for Congress’s passage of the FTCA. Gregory C. Sisk,

had resulted from a military policy that required pilots

to fly in a straight line below 1,000 feet to preserve fuel,

the policy decision and its consequences (though both

terrible) would not be appropriate for judicial adjudication under the FTCA. But if the military set no flight

path or altitude policy, the pilot’s decision to fly low and

in bad weather through Manhattan would be actionable

because it would involve no evaluation of policy. Clearer

still, if the pilot had intentionally steered his plane into

the building—perhaps because his wife’s lover worked

on the 80th floor—his “conduct [would] not involve any

permissible exercise of policy judgment.” Berkovitz, 486

U.S. at 538 n.3.

5. Applying the differences. Like flying a plane,

driving a car, or stealing a horse, the day-to-day acts of

line-level federal law enforcement officers—though suffused with mundane discretion—are not “grounded in

regulatory policy.” Gaubert, 499 U.S. at 325 n.7; see also

Hatahley, 351 U.S. at 181. As noted above, this becomes

concrete when the elements of a proviso tort are stacked

up against the separation-of-powers concerns that animate the discretionary-function exception. Take Petitioners’ claim for battery. Under Georgia law, “any unlawful touching is a physical injury to the person and is

actionable.” Vasquez v. Smith, 576 S.E.2d 59, 62 (Ga. Ct.

App. 2003) (citation omitted). And an “unlawful touching” is one that “would be offensive to an ordinary

The Continuing Drift of Federal Sovereign Immunity Jurisprudence, 50 Wm. & Mary L. Rev. 517, 536 (2008) (discussing how the

FTCA was made retroactive because Congress wanted to provide

recovery for the Empire State Building crash victims); see also 28

U.S.C. 1346(b)(1) (making the FTCA effective for claims “accruing

on and after January 1, 1945”).

person not unduly sensitive as to his dignity.” Ibid. (citation omitted). See also Ga. Code Ann. 51-1-13. 11

To determine whether the government is liable for

battery during a wrong-house raid, a court need not

evaluate the legitimacy of any governmental policies.

We know this, in large part, because the FBI has no policies governing the execution of SWAT raids. See Pet.

App. 18a; BIO at 10. And no law gives the FBI discretion

to raid a house in the absence of a warrant or an exception to the warrant requirement. So any discretion

Guerra had in executing the raid was untethered from

an “established governmental policy” that the discretionary-function exception was intended to shield.

Gaubert, 499 U.S. at 324. As a result, a judgment in Petitioners’ favor does not require a judicial inquiry into

any regulatory regime—there is no policy to attack

“through the medium of an action in tort.” Varig Airlines, 467 U.S. at 814; see also Hatahley, 351 U.S. at 180–

181 (declining to apply the exception when a federal

agent had “no statutory authority” to take the tortious

action).

ii.

The lower courts’ expansion of the exception creates needless conflict with

the proviso.

The discretionary-function exception and law-enforcement proviso address different categories of

claims. So the provisions do not conflict. But the lower

The district court held that Petitioners satisfied these elements. See Pet. App. 66a–67a.

courts have needlessly created conflicts by expanding

the reach of the discretionary-function exception.

1. Since its earliest cases addressing the FTCA, the

Court has warned the Act must not be “whittle[d ]down

by refinements” or—to the same effect—strictly construed in favor of sovereign immunity. United States v.

Yellow Cab Co., 340 U.S. 543, 548 n.5, 550 (1951); see also

Kosak, 465 U.S. at 853 n.9 (warning against “unduly generation interpretations of the [FTCA’s] exceptions”).

“The exemption of the sovereign from suit involves

hardship enough where consent has been withheld. We

are not to add to its rigor by refinement of construction

where consent has been announced.” United States v.

Aetna Cas. & Sur. Co., 338 U.S. 366, 383 (1949) (citation

omitted).

Even so, most lower courts have expanded the discretionary-function exception beyond what its text, its

purpose, or this Court’s precedent allow. They have

done this, in large part, by misapplying the rule this

Court laid out in Gaubert. There, the Court created a

two-step test to distinguish between discretionary functions and run-of-the-mill torts. Step one asks “whether

the challenged actions [involved an element of judgment

or choice], or whether they were instead controlled by

mandatory statutes or regulations.” Gaubert, 499 U.S.

at 328 (citing Berkovitz, 486 U.S. at 536). If the actions

involved an element of judgment, step two asks

“whether that judgment is of the kind that the discretionary function exception was designed to shield,”

which is to say, “decisions based on considerations of

public policy.” Id. at 322–323 (citing Berkovitz, 486 U.S.

at 536–537).

Before Gaubert, the lower courts “had difficulty in

applying th[e] test” for assessing whether a claim falls

within Section 2680(a). Gaubert, 499 U.S. at 335 (Scalia,

J., concurring in part). Three decades later, “courts are

still struggling.” Xi, 68 F.4th at 842 (Bibas, J., concurring). Third Circuit Judge Stephanos Bibas recently observed that there is still “significant confusion about

how to apply the test,” leading to “at least three

longstanding, recurring circuit splits involving the discretionary-function exception.” Id. at 843. Cf. Carter v.

United States, 604 U.S. ___, 145 S. Ct. 519, 524 (2025)

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

(“Faced with almost four decades of silence from this

Court on the Feres doctrine, lower courts have developed an array of tests for determining when it is triggered, leading to inconsistent results on similar facts.”).

2. The Eleventh Circuit’s decision in Shivers v.

United States illustrates the circuit confusion surrounding Gaubert’s application.

In Shivers, the court converted Section 2680(a) from

a limited exception into a default rule by holding that

“the discretionary function exception applies unless a

source of federal law ‘specifically prescribes’ a course of

conduct.” 1 F.4th at 931 (citing Gaubert, 499 U.S. at 322;

Berkovitz, 486 U.S. at 536). But this badly misstates the

Court’s precedent, as explained above. See C.M. v.

United States, 672 F. Supp. 3d 288, 334 (W.D. Tex. 2023)

(explaining that “neither cited Supreme Court case [in

Shivers] uses ‘unless’ in that context”). Federal agencies

have no discretion beyond that specifically granted by

law. See West Virginia v. EPA, 597 U.S. 697, 723 (2022)

(“Agencies have only those powers given to them by

Congress[.]”). Under Shivers’s interpretation of Section

2680(a), Gaubert’s permissive first step all but swallows

its restrictive second step. 12

Because lower courts have trouble assessing “the

types of conduct the § 2680(a) discretionary function exception protects[,]” they have unnecessarily forced

themselves to consider “whether and how to apply the

exception in cases brought under the intentional tort

proviso[.]” Medina v. United States, 259 F.3d 220, 224

(4th Cir. 2001). They have then adopted varying interpretations of both the discretionary-function exception

and law-enforcement proviso to resolve the conflicts

they have created by adopting varying interpretations

of both the discretionary-function exception and the

law-enforcement proviso.

The Seventh Circuit, for example, resolved the conflict by holding that the proviso waives immunity only

for “the part of § 2680(h) that precedes the proviso” and

that the discretionary-function exception applies to

even unconstitutional acts. Linder v. United States, 937

The Eleventh Circuit is not alone in over-relying on Gaubert’s

first prong to diminish its second. See, e.g., Medina v. United

States, 259 F.3d 220, 228 (4th Cir. 2001) (“[I]f a government employee has discretion under the first Gaubert prong, it ‘must be presumed’ that his acts ‘are grounded in policy when exercising that

discretion[.]’” (citation omitted)); Campos v. United States, 888

F.3d 724, 735 (5th Cir. 2018) (“The discretionary function exception

exists to leave sovereign immunity in place unless the official had

clear guidance on what to do when presented with what is argued

to be the relevant evidence.”); Dykstra v. Bureau of Prisons, 140

F.3d 791, 795–796 (8th Cir. 1998) (where “[n]o regulatory mandate

exists,” “‘it must be presumed that the agent’s acts are grounded in

policy’” (citation omitted)); Esquivel v. United States, 21 F.4th 565,

574 (9th Cir. 2021) (“Where the government agent is exercising discretion, ‘it must be presumed that the agent’s acts are grounded in

policy when exercising that discretion.’” (citation omitted)).

F.3d 1087, 1089–1090 (7th Cir. 2019). Meanwhile, the

Fourth Circuit resolved the conflict by holding the opposite—that the discretionary-function exception is inapplicable to unconstitutional acts. Medina, 259 F.3d at

226. See Xi, 68 F.4th at 838 & n.10 (noting the circuit

split).

Notwithstanding these errors, some courts have attempted to resolve this judge-made conflict by moving

in the right direction—narrowing the discretionaryfunction exception to “exclude[] most of the actions of

rank and file federal law enforcement officers.” Nguyen,

556 F.3d at 1257.

•

The Second Circuit determined that the actions

of INS agents who wrongly detained an individual were “not the kind that involve weighing important policy choices.” Caban v. United States,

671 F.2d 1230, 1233 (2d Cir. 1982).

•

The D.C. Circuit explained that, “if the ‘investigative or law enforcement officer’ limitation in

section 2680(h) is read to include primarily persons (such as police officers) whose jobs do not

typically include discretionary functions, it will

be rare that a suit permissible under the proviso

to section 2680(h) is barred by section 2680(a).”

Gray v. Bell, 712 F.2d 490, 508 (D.C. Cir. 1983).

•

The Third Circuit noted that “[i]t is hard to imagine instances in which the activities of officers engaging in searches, seizures or arrests would” fall

within Section 2680(a). Pooler v. United States,

787 F.2d 868, 872 (3d Cir. 1986), abrogated by

Millbrook, 569 U.S. 50.

•

The Ninth Circuit found that, “[w]hile law enfor-

cement involves exercise of a certain amount of

discretion on the part of individual officers, such

decisions do not involve the sort of generalized

social, economic and political policy choices that

Congress intended to exempt from tort liability.”

Garcia v. United States, 826 F.2d 806, 809 (9th

Cir. 1987).

As the Fifth Circuit recognized, a broad reading of

the discretionary-function exception would effectively

render the law-enforcement proviso a nullity: “[I]f actions under the proviso must also clear the hurdle of the

discretionary function exception * * * even Bivens and

Collinsville would not pass muster and the law enforcement proviso would fail to create the effective legal remedy intended by Congress.” Sutton v. United States, 819

F.2d 1289, 1296 (5th Cir. 1987).

This case proves the point—the facts are Collinsville

by another name. Federal police investigating drug

crimes raided an innocent family’s home, incorrectly believing it to be their target. In doing so, the agents did

not exercise (or abuse) any policy-conferred discretion—they just made a mistake that inflicted ordinary

common-law torts on Petitioners. Congress enacted the

proviso to remedy these torts. See Carlson, 446 U.S. at

20. Surely, Congress did not create this cause of action

only for it to be rendered instantly meaningless by the

discretionary-function exception. See Duncan v.

Walker, 533 U.S. 167, 175 (2001) (noting the “duty to

‘give each word some operative effect’ where possible”

(citation omitted)). So if the exception bars this case,

something has gone wrong.

The simplest way to resolve this conflict is to hold

that the discretionary-function exception is categorical-

ly inapplicable to the law-enforcement proviso because

they cover different government actions.

B. If the discretionary-function exception and

law-enforcement proviso conflict, the proviso prevails.

Properly understood, the discretionary-function exception and law-enforcement proviso do not conflict. But

there’s also a second path for the Court to take: To the

extent a government functionary could commit an intentional tort while exercising the government’s lawful administrative discretion, the proviso overrides the discretionary-function exception. The text, structure, and history of the FTCA confirm that Congress enacted the

law-enforcement proviso to spare the claims it permits

from the exceptions in Section 2680.

The text of the proviso is unequivocal: The FTCA

“shall apply to any claim” arising under the proviso. 28

U.S.C. 2680(h). But so, too, is the text of the discretionary-function exception: The FTCA “shall not apply to

any claim” that is based on a discretionary function. 28

U.S.C. 2680(a) (condensed). To figure out “what happens

when two ‘anys’ face off,” we must turn to the structure

of the FTCA and canons of construction. Nguyen, 556

F.3d at 1252.

The Eleventh Circuit is the only circuit to correctly

hold that, if the provisions conflict, the law-enforcement

proviso prevails. In Nguyen v. United States, Judge Ed

Carnes wrote for the court that, “if a claim is one of those

listed in the proviso to subsection (h), there is no need to

determine if the acts giving rise to it involve a discretionary function; sovereign immunity is waived in any

event.” 556 F.3d at 1257. In reaching this conclusion,

Nguyen relied on the general/specific canon, the earlier/later canon, and the congressional purpose of the

law-enforcement proviso, which Nguyen drew from an

extended review of the Collinsville raids and the congressional record. Id. at 1252–1257.

The text of the intentional-torts exception confirms

that Nguyen is correct. Read in full, Section 2680(h) contains three sentences:

The Preamble

The provisions of this chapter and section 1346(b)

of this title shall not apply to—(h) Any claim arising out of assault, battery, false imprisonment,

[etc.]:

The Proviso

Provided, That, with regard to acts or omissions

of investigative or law enforcement officers of the

United States Government, the provisions of this

chapter and section 1346(b) of this title shall apply to any claim arising * * * out of assault, battery, false imprisonment, [etc.]

The Definition

For the purpose of this subsection, “investigative

or law enforcement officer” means any officer of

the United States who is empowered by law to

execute searches, to seize evidence, or to make

arrests for violations of Federal law.

Engaging with this text provides six reasons why

the discretionary-function exception is inapplicable to

claims arising under the law-enforcement proviso:

First, the proviso’s text cancels out the preamble.

This is important because the preamble reinstates immunity for the exceptions: If “[a]ny claim” falls into the

exception, the preamble provides that the FTCA “shall

not apply,” triggering sovereign immunity for the claim.

But the proviso counteracts this operation. By drafting

the proviso to mirror the preamble—only changing

“shall not” to “shall”—Congress designed the proviso to

re-waive the sovereign immunity that the preamble reinstates. Compare:

Section 2680

The provisions of this chapter and section 1346(b)

of this title shall not apply.

Section 2680(h)

The provisions of this chapter and section 1346(b)

of this title shall apply.

(Emphasis added, cleaned up.) This inversion of the operative language also makes clear that the preamble is

the proviso’s antecedent. See Alaska v. United States,

545 U.S. 75, 115 (2005) (Scalia, J., concurring in part and

dissenting in part); see also Antonin Scalia & Bryan A.

Garner, Reading Law: The Interpretation of Legal

Texts 154–155 (2012) (E.g., “[T]he authorization or imposition that [a proviso] modifies is often found not immediately before but several clauses earlier.” (citing, inter alia, Pennington v. United States, 48 Ct. Cl. 408, 411,

415 (1913))).

Second, the proviso reaches beyond Section 2680(h)

to cover all of Section 2680, including the discretionaryfunction exception. This follows from the point above, as

well as the text of Section 2680(h)’s definition. Unlike

the proviso, the definition only applies “[f]or the purpose

of this subsection.” 13 28 U.S.C. 2680(h). Had Congress intended to similarly limit the proviso, it would have

placed this limiting prepositional phrase before the proviso. 14 Instead, Congress placed it after the proviso,

communicating that the proviso applies beyond Section

2680(h). See Millbrook, 569 U.S. at 57 (explaining that,

“[h]ad Congress intended to further narrow the scope of

the proviso,” it could have “adopted [the] similar limitations [it used] in neighboring” language). The structure

and words Congress chose must be given meaning. See

Simmons v. Himmelreich, 578 U.S. 621, 627 (2016).

Third, the proviso is more specific than the discre-

tionary-function exception. When a statute contains “a

general permission or prohibition [that] is contradicted

by a specific prohibition or permission, * * * the specific

provision is construed as an exception to the general

one.” RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U.S. 639, 645 (2012); see also Department of

Com. v. New York, 588 U.S. 752, 830 (2019) (Alito, J.,

concurring in part) (“[I]f there is tension between a specific provision * * * and a general one * * * the specific

provision must take precedence.”). Section 2680(a)

This makes sense. If the definition were not so limited, it

would have given “law enforcement officer” conflicting meanings in

Sections 2680(c) and (h). See Ali v. Federal Bureau of Prisons, 552

U.S. 214, 227–228 (2008) (construing “any other law enforcement officer” in Section 2680(c) more broadly than the definition in Section

2680(h)).

In this alternate reality, the proviso would read: “Provided,

That, for the purpose of this subsection, with regard to acts or omissions of investigative or law enforcement officers of the United

States Government, the provisions of this chapter and section

1346(b) of this title shall apply to any claim * * * .”

creates a general prohibition against claims based on

discretionary functions, while Section 2680(h) provides

specific permission for claims arising out of six enumerated torts when committed by an “investigative or law

enforcement officer.” Thus, if the provisions conflict, the

proviso pierces the exception.

Fourth, the proviso was enacted 28 years after the

discretionary-function exception. It is an “established

rule that a later adopted provision takes precedence

over an earlier, conflicting provision of equal stature[.]”

Tennessee Wine & Spirits Retailers Ass’n v. Thomas,

588 U.S. 504, 519 (2019). If there is a conflict between the

provisions, again, the law-enforcement proviso “takes

precedence.”

Fifth, applying the discretionary-function exception

to the proviso threatens to invalidate the latter when it

should uncontroversially apply. See United States v.

Castleman, 572 U.S. 157, 178 (2014) (Scalia, J., concurring in part and concurring in the judgment) (“Congress

presumably does not enact useless laws.”). This threat is

exacerbated by the state of play in the lower courts,

where discretionary-function exception jurisprudence

“has gone off the rails.” Chadd v. United States, 794 F.3d

1104, 1114 (9th Cir. 2015) (Berzon, J., concurring). The

application of the exception to proviso claims will lock

those claims inside the labyrinth of circuit splits interpreting the exception. At best, this will render recovery

under the proviso inconsistent, circuit-dependent, and

random. At worst, it will completely nullify the proviso

in its core applications. Either way, subjecting proviso

claims to the discretionary-function exception would

flout the text, context, and history of the proviso to

reach “a result that Congress * * * did not intend.”

POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 116

(2014).

Sixth, the structure of the FTCA sets an order of operation that ends with the law-enforcement proviso’s

waiver of sovereign immunity for “any claim” arising

under it. By default, the government is entitled to sovereign immunity at step one. At step two, Section

1346(b)(1) waives this immunity. At step three, Section

2680’s preamble reinstates sovereign immunity. And at

step four, the law-enforcement proviso re-waives immunity once and for all.

This sequence answers a natural question about the

proviso’s scope: If the proviso states that “the provisions

of this chapter * * * shall apply,” and Section 2680(a) is

a provision of the chapter, does the proviso reincorporate the discretionary-function exception? 15 No, because

the proviso has the last word. See Dolan v. USPS, 546

U.S. 481, 486 (2006) (“Interpretation 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.”).

Otherwise, any claim that triggers both the proviso

and any exception would set off an infinite loop, vacillating between granting and waiving immunity: Section

2680(a) applies, so “the provisions of this chapter * * *

See Simmons, 578 U.S. at 627 (holding that the FTCA’s judgment bar, 28 U.S.C. 2676, “shall not apply” when a claim falls within

Section 2680 because the judgment bar is one of the “provisions of

this chapter”); accord Thacker v. TVA, 587 U.S. 218, 223 (2019)

(“Nor does the FTCA’s exception for discretionary functions apply

the TVA,” which is exempted by Section 2680(l).).

shall not apply”; provided, the proviso applies, so “the

provisions of this chapter * * * shall apply”; Section

2680(a) is a provision of this chapter, so Section 2680(a)

applies, so “the provisions of this chapter * * * shall not

apply”; provided, the proviso applies, etc.

Taken together, this all leads to the conclusion that,

if the provisions conflict, the discretionary-function exception is categorically inapplicable to claims arising under the law-enforcement proviso. This interpretation is

consistent with the text and maintains the FTCA as a

coherent statutory scheme.

Bolstering this textual analysis, all persuasive indications from Congress’s enactment of the law-enforcement proviso point in one direction: Congress expected

the proviso to “submit the Government to liability” in

“any case in which a Federal law enforcement agent

committed the tort while acting within the scope of his

employment or under color of Federal law.” S. Rep. 93588, at 4. Such a robust waiver of sovereign immunity

would, of course, also apply “whenever [federal]

agents * * * injure the public through search[es] and

seizures that are conducted without warrants or with

warrants issued without probable cause.” Ibid.; see generally John C. Boger et al., The Federal Tort Claims Act

Intentional Torts Amendment: An Interpretative Analysis, 54 N.C. L. Rev. 497 (1976) (providing a thorough

contemporary discussion of the events surrounding the

enactment of the law-enforcement proviso).

Agent Guerra and his FBI SWAT team injured Petitioners through a search and seizure conducted

without a warrant—at least for Petitioners’ home. The

FTCA provides them the right to submit the government to liability for the federal agents’ assault, battery,

and false imprisonment. Whichever path it takes to this

conclusion, the Court should honor the text Congress

enacted.

II.

The Supremacy Clause does not bar FTCA

claims because the FTCA is a federal statute.

As explained above, Nguyen v. United States is the

only circuit-court decision that correctly answers the

second question presented. Had the Eleventh Circuit

simply applied Nguyen’s straightforward rule below, it

would have allowed Petitioners’ proviso claims to proceed. But to circumvent that rule just months after it

was created, the Eleventh Circuit created the Supremacy Clause bar in Denson v. United States. Under this

bar, the FTCA “has no effect” whenever a government

employee’s action “ha[s] some nexus with furthering

federal policy and can reasonably be characterized as

complying with the full range of federal law.” Denson,

574 F.3d 1318, 1348 (11th Cir. 2009). No other circuit has

adopted this bar, and the government does not defend it

before this Court. That’s because the bar finds no support in even the faintest penumbras of American constitutional design.

1. Key to our federal system, the Supremacy Clause

provides: “This Constitution, and the Laws of the

United States * * * shall be the supreme Law of the

Land[.]” U.S. Const. art. VI, cl. 2. To state the obvious,

the Federal Tort Claims Act is a federal law. This means

that it is a manifestation of “the supreme Law of the

Land” the founders designed the Supremacy Clause to

safeguard. Thus, the FTCA does not—it cannot—conflict with the Supremacy Clause.

Even so, the Eleventh Circuit created the Supremacy Clause bar believing it would “promote[] sound social policy and provide[ law enforcement officers] a degree of flexibility and protection[.]” Denson, 574 F.3d at

1344. The court’s theory began from the premise that

“an officer of the United States cannot be held in violation of state law while simultaneously executing his duties as prescribed by federal law.” Id. at 1347 (drawing

a “broader application” from In re Neagle, 135 U.S. 1, 57

(1890)). And because the FTCA provides relief “in accordance with the law of the place where the act * * *

occurred,” 28 U.S.C. 1346(b)(1)—typically, state tort

law—the Eleventh Circuit concluded that “liability

simply cannot attach to the acts taken by federal officers

in the course of their duties and committed in compliance with federal law[.]” Denson, 574 F.3d at 1349.

The Eleventh Circuit recently expanded the bar by

holding that there is a sufficient federal nexus to preclude FTCA claims whenever a federal employee acts

within the scope of his “discretionary authority.” Kordash v. United States, 51 F.4th 1289, 1294 (11th Cir.

2022); see also Pet. App. 25a–26a. In effect, the Supremacy Clause bar is just the discretionary-function exception with an added constitutional-violation requirement.

See Kordash, 51 F.4th at 1294.

2. The Eleventh Circuit’s Supremacy Clause bar impermissibly usurps Congress’s sole authority to waive

sovereign immunity. This Court has made clear that

Congress “has full power to endow [] an entity with the

government’s immunity from suit,” and it also has “full

power to waive that immunity and subject the entity to

the judicial process to whatever extent it wishes.”

Thacker v. TVA, 587 U.S. 218, 226 (2019) (cleaned up).

When Congress does so, it “raises no separation of powers problems.” Ibid. “The right governmental actor

(Congress) is making a decision within its bailiwick (to

waive immunity) that authorizes an appropriate body (a

court) to render a legal judgment.” Ibid. If Congress’s

waiver of immunity based on political decisions does not

offend the horizontal separation of powers, it certainly

does not offend the federal government’s power to create the supreme law of the land.

Judge Carnes (who had authored Nguyen just five

months earlier) pointed this out in his Denson concurrence: “[U]nder the FTCA, there can be no [conflict between state and federal law] because the sovereign has

incorporated state tort law into federal law to the extent

stated in that statute.” 574 F.3d at 1352. “It is, of course,

not uncommon for Congress to direct that state law be

used to fill the interstices of federal law.” Moor v.

County of Alameda, 411 U.S. 693, 701 & n.11 (1973) (listing several examples, including the FTCA). And when

Congress incorporates elements of state law in a federal

cause of action, it does not matter “[w]hether the rules

of substantive law applied by the federal courts are derived from federal or state sources.” Association of

Westinghouse Salaried Emps. v. Westinghouse Elec.

Corp., 348 U.S. 437, 463–464 (1955) (Reed, J., concurring) (referencing the FTCA). Federal incorporation

means that “[t]he rules are truly federal, not state[,]”

and the “cause of action aris[es] under federal law, the

source of federal judicial power under Art. III of the

Constitution.” Id. at 464. And if federal judicial power

exists, courts have a “duty to exercise it[.]” Second

Emps.’ Liab. Cases, 223 U.S. 1, 58 (1912).

3. The government suggests, and we agree, that the

Eleventh Circuit created the Supremacy Clause bar in

Denson to neutralize the effect of its earlier decision in

Nguyen. Compare BIO at 20 (noting as Denson’s premise that “Congress could not have intended that the

United States would be held liable for the actions of its

law enforcement officers that are discretionary and

within the scope of their official duties”), with Nguyen,

556 F.3d at 1260 (holding that, where “the [law-enforcement] proviso applies to waive sovereign immunity, the

[discretionary-function exception] is of no effect”). Because Nguyen made it impossible to otherwise pare back

the FTCA’s waiver of sovereign immunity, the Eleventh Circuit simply created another exception to the

Act, ruling it unconstitutional in most of its core applications. 16

Although the government does not defend this position before the Court, it nevertheless contends that the

Supremacy Clause bar reaches the correct outcome—

the denial of Petitioners’ FTCA claims. BIO at 21. This

ignores the Court’s clear guidance: Whether in form or

substance, courts should not “import immunity back into

a statute designed to limit it.” Indian Towing, 350 U.S.

Given that the FTCA creates liability for actions taken by

federal employees “within the scope of [their] office or employment,” 28 U.S.C. 1346(b)(1), it is difficult to imagine many scenarios

that satisfy that requirement but do not have “some nexus with furthering federal policy and can[not] reasonably be characterized as

complying with the full range of federal law,” Denson, 574 F.3d at

1348 (emphasis added). At minimum, the Supremacy Clause bar

squelches most of the claims Congress enacted the FTCA to permit. See Dalehite, 346 U.S. at 28.

at 69. That is true no matter whether immunity is imported through the expansion of the discretionary-function exception, the restriction of the law-enforcement

proviso, or the creation of the Supremacy Clause bar.

Congress has provided Petitioners with a cause of

action for the torts committed against them by the FBI

agents who wrongfully raided their home, but the Eleventh Circuit has taken it away. This Court should return

it. “If the Act is to be altered that is a function for the

same body that adopted it.” Rayonier, 352 U.S. at 320.

CONCLUSION

The Court should reverse the Eleventh Circuit, hold

that the Supremacy Clause does not bar claims under

the FTCA, hold that the discretionary-function exception is categorically inapplicable to claims arising under

the law-enforcement proviso to the intentional-torts exception, and remand this case for further proceedings.

Respectfully submitted on March 7, 2025,

Lisa C. Lambert

LAW OFFICE OF

LISA C. LAMBERT

245 N. Highland Ave.,

Suite 230-139

Atlanta, GA 30307

Zack Greenamyre

MITCHELL SHAPIRO

GREENAMYRE & FUNT

881 Piedmont Ave.

Atlanta, GA 30309

Patrick Jaicomo

Counsel of Record

Anya Bidwell

Dylan Moore

Jared McClain

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.,

Suite 900

Arlington, VA 22203

(703) 682-9320

pjaicomo@ij.org

Jeffrey R. Filipovits

SPEARS & FILIPOVITS

315 W. Ponce de Leon Ave.,

Suite 865

Decatur, GA 30030

Counsel for Petitioners

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.