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

Supreme Court briefMar 14, 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 OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

NARGIS ASLAMI**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 14, 2025

* Counsel of Record

** Not admitted in D.C.; supervised by principals of the firm

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

ARGUMENT .........................................................

The Supremacy Clause Assigns Courts

a Critical but Limited Role of Reviewing

Conflicts Between State and Federal

Law ..............................................................

II. The Court Below Overstepped Its

Boundaries by Crafting, Under the Guise

of the Supremacy Clause, a New

Exception to the FTCA’s Waiver of

Sovereign Immunity that Does Not

Appear in the Text of the Statute ...............

A. The FTCA Is a Sweeping Waiver of

Sovereign Immunity, and It Contains

No Exception for Acts that “Have

Some Nexus with Furthering Federal

Policy” and “Can Reasonably Be

Characterized as Complying with the

Full Range of Federal Law” .................

B. Waiving Sovereign Immunity Is

Uniquely Within the Purview of

Congress ................................................

C. The FTCA Is a Federal Law, so

Application of Its Text, as Written by

Congress, Cannot Possibly Run Afoul

of the Supremacy Clause ......................

CONCLUSION .....................................................

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) .....................................

2, 8

Bd. of Comm’rs of Jackson Cnty. v. United

States,

308 U.S. 343 (1939) .....................................

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) .....................................

Carr v. United States,

98 U.S. (8 Otto) 433 (1878)..........................

Carter v. United States,

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

Dalehite v. United States,

346 U.S. 15 (1953) .......................................

Denson v. United States,

574 F.3d 1318 (11th Cir. 2009) ...................

4, 17

Dep’t of Agric. Rural Dev. Rural Hous. Serv. v.

Kirtz,

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

Dolan v. U.S. Postal Service,

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

Egbert v. Boule,

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

Emps.’ Fire Ins. Co. v. United States,

167 F.2d 655 (9th Cir. 1948) .......................

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

FERC v. Mississippi,

456 U.S. 742 (1982) .....................................

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) .........................

Indian Towing Co. v. United States,

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

1, 10, 11

In re Neagle,

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

4, 17, 18

Kordash v. United States,

51 F.4th 1289 (2022)....................................

Kosak v. United States,

465 U.S. 848 (1984) .....................................

Lane v. Peña,

518 U.S. 187 (1996) .....................................

Martin v. Hunter’s Lessee,

14 U.S. (1 Wheat.) 304 (1816) .....................

Passenger Cases,

48 U.S. (7 How.) 283 (1849) ........................

People of Puerto Rico v. Shell Co.,

302 U.S. 253 (1937) .....................................

Rayonier Inc., v. United States,

352 U.S. 315 (1957) .....................................

4, 10

Schweiker v. Chilicky,

487 U.S. 412 (1988) .....................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Simmons v. Himmelreich,

578 U.S. 621 (2016) .....................................

The Siren,

74 U.S. (7 Wall.) 152 (1868) ........................

Tennessee v. Davis,

100 U.S. 257 (1880) .....................................

Thacker v. Tenn. Valley Auth.,

587 U.S. 218 (2019) .....................................

3, 13

United States v. Idaho ex rel. Dir., Idaho Dep’t

of Water Res.,

508 U.S. 1 (1993) .........................................

United States v. Kubrick,

444 U.S. 111 (1979) .....................................

United States v. Muniz,

374 U.S. 150 (1963) .....................................

United States v. Nordic Vill. Inc.,

503 U.S. 30 (1992) .......................................

United States v. Sharpnack,

355 U.S. 286 (1958) .....................................

United States v. Yellow Cab Co.,

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

3, 10, 13, 14

Wayman v. Southard,

23 U.S. (10 Wheat.) 1 (1825) .......................

Westfall v. Erwin,

484 U.S. 292 (1988) .....................................

TABLE OF AUTHORITIES – cont’d

Page(s)

Constitutional Provisions

U.S. Const. art. VI, cl. 2 .................................

Statutes and Legislative Materials

Federal Employees Liability Reform and Tort

Compensation Act of 1988, Pub. L. No. 100694, 100th Cong. § 2 ....................................

H.R. Rep. No. 79-1287 (1946) ........................

S. Rep. No. 79-1400 (1946).............................

S. Rep. No. 93-588 (1973)...............................

28 U.S.C. § 1346(b)(1) ..........................

3, 11, 15, 17

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

2, 10, 11

28 U.S.C. § 2680 .............................................

Books, Articles, and Other Authorities

James T. Barry III, The Council of Revision

and the Limits of Judicial Power, 56 U. Chi.

L. Rev. 235 (1989) ........................................

Bradford R. Clark, Separation of Powers as a

Safeguard of Federalism, 79 Tex. L. Rev.

1321 (2001) ..................................................

The Federalist No. 21 (Clinton Rossiter ed.,

1961).............................................................

The Federalist No. 44 (Clinton Rossiter ed.,

1961).............................................................

TABLE OF AUTHORITIES – cont’d

Page(s)

The Federalist No. 78 (Clinton Rossiter ed.,

1961).............................................................

7, 8

The Federalist No. 80 (Clinton Rossiter ed.,

1961).............................................................

Leslie A. Gardner & Justin C. Van Orsdol,

Solidifying Supremacy Clause

Immunity, 30 Wm. & Mary Bill Rts. J. 567

(2022) ...........................................................

Henry M. Hart, Jr., The Relations Between

State and Federal Law, 54 Colum. L. Rev.

489 (1954) ....................................................

Harold J. Krent, Reconceptualizing Sovereign

Immunity, 45 Vand. L. Rev. 1529 (1992)....

James Madison, Vices of the Political System

of the United States (Apr. 1787), reprinted in

9 The Papers of James Madison (Robert A.

Rutland & William M. E. Rachal eds.,

1975).............................................................

John Copeland Nagle, Waiving Sovereign

Immunity in an Age of Clear Statement

Rules, 1995 Wis. L. Rev. 771 (1995) ...........

Jack N. Rakove, Original Meanings: Politics

and Ideas in the Making of the Constitution

(1996) ...........................................................

The Records of the Federal Convention of 1787

(Max Farrand ed., 1911) ............................. 2, 6-8

vii

TABLE OF AUTHORITIES – cont’d

Page(s)

Gregory C. Sisk, Twilight for the Strict

Construction of Waivers of Federal Sovereign

Immunity, 92 N.C. L. Rev. 1245 (2014) ......

Joseph Story, Commentaries on the

Constitution of the United States (1st ed.

1833).............................................................

Seth P. Waxman & Trevor W. Morrison, What

Kind of Immunity? Federal Officers, State

Criminal Law, and the Supremacy Clause,

112 Yale L.J. 2195 (2003) ................

15, 16, 17

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and preserve the

rights and freedoms it guarantees. CAC has a strong

interest in ensuring meaningful access to the courts,

in accordance with constitutional text and history, and

therefore has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In a brazen act of judicial overreach, the court below rewrote the Federal Tort Claims Act (“FTCA”) to

bar liability for the very acts for which the FTCA authorizes it. According to the Eleventh Circuit (and

only that Circuit), if a federal employee’s actions “have

some nexus with furthering federal policy” and “can

reasonably be characterized as complying with the full

range of federal law,” the Supremacy Clause overrides

the FTCA’s express waiver of sovereign immunity.

Pet. App. 17a. This makes no sense. Application of a

federal law—literally, the Federal Tort Claims Act—

cannot possibly “impede or burden the execution of

federal law.” Id. at 16a. This Court should reject the

attempt of the court below to “import immunity back

into a statute designed to limit it.” Indian Towing Co.

v. United States, 350 U.S. 61, 69 (1955).

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

and no counsel or party made a monetary contribution intended

to fund its preparation or submission. No person other than amicus or its counsel made a monetary contribution to its preparation

or submission.

The history of the Supremacy Clause shows just

how fundamentally wrong the Eleventh Circuit’s decision is. The Framers of our Constitution wrote the Supremacy Clause to correct a “fatal omission” in the dysfunctional Articles of Confederation, Jack N. Rakove,

Original Meanings: Politics and Ideas in the Making of

the Constitution 167 (1996)—namely, the failure to ensure the supremacy of federal law over conflicting

state law and, in turn, secure the “effectual controul in

the whole over its parts,” 1 The Records of the Federal

Convention of 1787, at 167 (Max Farrand ed., 1911)

[hereinafter Farrand’s Records]. The Convention records make clear that the Framers conceived of separate roles for Congress and the judiciary with respect

to the Supremacy Clause: Congress would write federal laws, and courts would interpret and safeguard

them. Specifically, in cases involving a conflict between state and federal law, the job of the courts would

be to apply the Supremacy Clause as a “rule of decision.” Armstrong v. Exceptional Child Ctr., Inc., 575

U.S. 320, 324 (2015). Judicial review is thus critical to

making real the promise of the Supremacy Clause, but

the Clause does not give courts license to rewrite duly

enacted federal statutes in the name of furthering or

protecting some nebulous “federal policy.” Pet. App.

17a. Federal statutes are the federal policy.

Application of the plain text of the FTCA, which

provides that the United States can be held “liable [for]

tort claims[] in the same manner and to the same extent as a private individual under like circumstances,”

28 U.S.C. § 2674, thus does not—indeed cannot—violate the Supremacy Clause. Congress included thirteen explicit exceptions to the FTCA’s waiver of sovereign immunity, none of which match the exception

crafted by the Eleventh Circuit—as the court below

acknowledged. Pet. App. 16a-17a. Congress even

amended the FTCA in the wake of two high-profile federal wrong-house raids like the one at issue here to

make it exceptionally clear that claims like those

brought in this case are authorized by the FTCA’s express cause of action. There is simply no room for

courts to write new exceptions into the text of the Act.

Wrong under any circumstances, this act of judicial legislation is especially troublesome in the context

of a decision about whether to waive sovereign immunity. Given that the delicate policy considerations involved in the decision to waive sovereign immunity are

squarely within Congress’s “bailiwick,” Thacker v.

Tenn. Valley Auth., 587 U.S. 218, 226 (2019), this

Court has long recognized that only Congress, as the

people’s representative, has the power to make that

decision. Time and again, this Court has explained

that just as “we should not take it upon ourselves to

extend [a] waiver [of sovereign immunity] beyond that

which Congress intended[,] . . . [n]either, however,

should we assume the authority to narrow the waiver

that Congress intended.” United States v. Idaho ex rel.

Dir., Idaho Dep’t of Water Res., 508 U.S. 1, 7 (1993)

(some alterations in original) (internal quotation

marks omitted) (quoting Smith v. United States, 507

U.S. 197, 203 (1993)). That rule is especially salient in

the context of the FTCA, which this Court has upheld

as a model of clarity with respect to waivers of sovereign immunity. E.g., United States v. Yellow Cab Co.,

340 U.S. 543, 548 & n.5 (1951).

Ignoring all this, the court below decided that because the FTCA incorporates by reference the “law of

the place where the act or omission occurred,” 28

U.S.C. § 1346(b)(1), the FTCA—a federal statute—

must give way when a federal official acts in accordance with other federal laws or policies. That is wrong.

The incorporation of state law as the source of

substantive liability does not dispossess the FTCA of

its status as “the supreme Law of the Land.” U.S.

Const. art. VI, cl. 2. As this Court has put it, “laws of

the States which . . . are adopted by Congress” are “as

much the laws of the United States, and it has often

been so held, as if they had been specially enacted by

Congress.” Passenger Cases, 48 U.S. (7 How.) 283, 402

(1849). Enforcement of the FTCA—an express federal

cause of action over which federal courts have jurisdiction—is thus fundamentally different from the prosecution of federal officials under state criminal law, i.e.,

the scenario in In re Neagle, 135 U.S. 1 (1890), on

which the court below relied in large part for its novel

rule. See Pet. App. 16a-17a (citing Denson v. United

States, 574 F.3d 1318, 1336-37 (11th Cir. 2009), which

in turn relied primarily on Neagle).

The Supremacy Clause thus does not license

courts to rewrite the FTCA to exempt from liability

federal actors who Congress chose not to exempt in the

text of the statute. “If the Act is to be altered that is a

function for the same body that adopted it.” Rayonier

Inc., v. United States, 352 U.S. 315, 320 (1957). This

Court should reverse.

ARGUMENT

The Supremacy Clause Assigns Courts a

Critical but Limited Role of Reviewing

Conflicts Between State and Federal Law.

The Supremacy Clause provides in relevant part

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

States which shall be made in Pursuance thereof . . .

shall be the supreme Law of the Land; . . . any Thing

in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. IV, cl. 2. In

this sweeping declaration of federal supremacy, the

Framers provided that “conflicts between state and

federal law” would be “resolved by principled adjudication, rather than political will or force.” Bradford R.

Clark, Separation of Powers as a Safeguard of Federalism, 79 Tex. L. Rev. 1321, 1348 (2001). The Supremacy Clause thus assigns a critical—but limited—role

to the judiciary: courts ensure that acts of Congress

are treated as the supreme law of the land when they

conflict with state law.

The Framers crafted the Supremacy Clause

against the backdrop of numerous abuses of state authority under the Articles of Confederation, which established a single branch of the federal government,

but contained no mechanism for ensuring federal supremacy. Under the dysfunctional structure of the Articles, the federal government could not enforce its

laws, prompting Alexander Hamilton to observe that a

“most palpable defect of the existing Confederation is

the total want of a sanction to its laws.” The Federalist

No. 21, at 138 (Alexander Hamilton) (Clinton Rossiter

ed., 1961). The result, James Madison lamented, is

that acts of Congress “depend[] for their execution on

the will of the state legislatures,” making federal laws

“nominally authoritative, [but] in fact recommendatory only.” James Madison, Vices of the Political System of the United States (Apr. 1787), reprinted in 9 The

Papers of James Madison 345, 352 (Robert A. Rutland

& William M. E. Rachal eds., 1975). Without the Supremacy Clause, Madison argued, our system of government would be an “inversion of the fundamental

principles of all government; it would have seen the

authority of the whole society everywhere subordinate

to the authority of the parts; it would have seen a monster, in which the head was under the direction of the

members.” The Federalist No. 44, supra, at 287

(James Madison).

The Framers gathered in Philadelphia in 1787 to

correct these “vices” resulting from the lack of “effectual controul in the whole over its parts.” 1 Farrand’s

Records, supra, at 167. During the Convention, they

debated various means of ensuring the supremacy of

federal law, including the use of force by the Executive,

a congressional veto on state laws, and judicial review.

Early in the Convention, Governor Edmund Randolph

of Virginia proposed that the “National Legislature” be

given the power “to negative all laws passed by the several States,” as well as the power “to call forth the force

of the Union” against a state “failing to fulfill its duty.”

Id. at 21. While James Madison supported the legislative “negative,” he strongly disagreed with reliance

upon military force to resolve conflicts between federal

and state law: “The use of force agst. a State, would

look more like a declaration of war, than an infliction

of punishment, and would probably be considered by

the party attacked as a dissolution of all previous compacts by which it might be bound.” Id. at 54. Randolph

was persuaded to change his position, agreeing that

the use of force would be “impracticable, expensive,

[and] cruel to individuals.” Id. at 256 (emphasis omitted).

While Madison convinced his colleagues to relinquish the military option, he could not persuade them

to embrace the use of congressional power to invalidate state laws. As Governor Morris argued, “[a] law

that ought to be negatived will be set aside in the Judiciary department, and if that security should fail;

may be repealed by a Nationl. law.” 2 Farrand’s Records, supra, at 28. The proposal that Congress nullify

state laws was thus voted down. Id. In rejecting the

congressional negative, “the Framers substituted judicial review of state laws for congressional control of

state legislatures.” FERC v. Mississippi, 456 U.S. 742,

795 (1982) (O’Connor, J., concurring in the judgment

in part and dissenting in part).

Immediately after the defeat of the negative, Luther Martin of Maryland proposed an initial version of

the Supremacy Clause, which provided that “the Legislative acts of the [United States] . . . shall be the supreme law of the respective States . . . [and] that the

Judiciaries of the several States shall be bound

thereby in their decisions, any thing in the respective

laws of the individual States to the contrary notwithstanding.” 2 Farrand’s Records, supra, at 28-29. The

Convention unanimously adopted this provision. Assigning the judiciary the task of enforcing the Supremacy Clause naturally fit within its already established

role as “expositor[] of the Laws,” id. at 73, and would

ensure principled decisions free from localized influences, The Federalist No. 80, supra, at 478-79 (Alexander Hamilton); see also The Federalist No. 78, supra,

at 470-71 (Alexander Hamilton) (judicial review as a

means of enforcing the Supremacy Clause would ensure the uniformity of laws through the courts’ “inflexible and uniform adherence to the rights of the Constitution”).

Significantly, this decision was made amidst the

larger debates over the extent to which the judiciary

would play a role—if any—in law-making, specifically

as part of a council of revision through which the judiciary and the executive would have jointly shared the

power to veto laws proposed by the legislature. See

James T. Barry III, The Council of Revision and the

Limits of Judicial Power, 56 U. Chi. L. Rev. 235, 248

(1989). Those in favor of the proposed council argued,

in part, that limiting the courts’ role to judicial review

would allow the enactment of “improper law[s],” which

the courts might not have a chance to expound upon,

or which the courts would be bound to uphold if not

unconstitutional. 2 Farrand’s Records, supra, at 78;

see also id. at 73. The opponents, on the other hand,

viewed the proposed council as “an improper mixture

of powers,” 1 Farrand’s Records, supra, at 140, that

would “mak[e] the Expositors of the Laws[] the Legislators[,] which ought never to be done,” 2 Farrand’s

Records, supra, at 75. A key concern was that the people’s confidence in the judiciary “will soon be lost, if

they are employed in the task of remonstrating agst.

popular measures of the Legislature.” Id. at 76-77.

This concern won out, and the Framers adhered to the

role of the judiciary as an arbiter of disputes—vested

with the authority of applying the law rather than creating it. 1 Farrand’s Records, supra, at 140; 2 Farrand’s Records, supra, at 80; id. at 298.

To effectuate these fundamental separation-ofpowers principles, this Court has emphasized that “it

is important to read the Supremacy Clause in the context of the Constitution as a whole,” including Article

I, which vests the legislative power in Congress. Armstrong, 575 U.S. at 325. The Supremacy Clause does

not alter or redelegate that power; rather, it “creates a

rule of decision: Courts ‘shall’ regard the ‘Constitution,’ and all laws ‘made in Pursuance thereof,’ as ‘the

supreme Law of the Land.’” Id. at 324; cf. The Federalist No. 78, supra, at 469 (Alexander Hamilton) (If

“the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments,” they “must declare the sense of the law;

and if they should be disposed to exercise will instead

of judgment, the consequence would equally be the

substitution of their pleasure to that of the legislative

body.”). In other words, the role of the courts with respect to the Supremacy Clause is to construe the text

of the laws that Congress enacted—not to alter that

text—and ensure that no state laws violate congressional mandates.

In short, the Framers wrote the Supremacy

Clause to ensure that federal laws would reign supreme over conflicting state laws. Adherence to a most

basic principle of our constitutional system—“the legislature makes, the executive executes, and the judiciary construes the law”—is paramount to actualizing

the Supremacy Clause as a rule of law. Wayman v.

Southard, 23 U.S. (10 Wheat.) 1, 46 (1825). The roles

of the judicial and legislative branches under the

Clause are clear: Congress passes laws, and courts ensure that those laws are given effect even in the face of

conflicting state laws. Courts cannot, however, rewrite federal statutes under the guise of ensuring federal supremacy. The Supremacy Clause does not authorize such legislation from the bench, and the separation of powers prohibits it.

II. The Court Below Overstepped Its

Boundaries by Crafting, Under the Guise of

the Supremacy Clause, a New Exception to

the FTCA’s Waiver of Sovereign Immunity

that Does Not Appear in the Text of the

Statute.

A. The FTCA Is a Sweeping Waiver of

Sovereign Immunity, and It Contains No

Exception for Acts that “Have Some

Nexus with Furthering Federal Policy”

and “Can Reasonably Be Characterized

as Complying with the Full Range of

Federal Law.”

Because the Supremacy Clause does not give

courts the authority to rewrite federal statutes, or pick

and choose between federal policies enshrined in federal law, the court below erred in crafting a new

exception to the FTCA’s creation of liability for federal

actors—an exception never legislated by Congress.

The text of the Federal Tort Claims Act is entirely

unambiguous in its waiver of sovereign immunity:

“The United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C § 2674 (emphasis

added); see Yellow Cab Co., 340 U.S. at 547 (“The Federal Tort Claims Act waives the Government’s immunity from suit in sweeping language. It unquestionably

waives it in favor of an injured person.” (footnote omitted)); Indian Towing Co., 350 U.S. at 65 (“The Federal

Tort Claims Act cuts the ground from under” “the basic

historical doctrine of sovereign immunity.”). The law

was enacted in 1946 by Congress to rectify the burdensome and unjust private-bill system, which served as

the only means by which private individuals could

seek remedies for wrongs committed by the federal

government. S. Rep. No. 79-1400, at 30 (1946); accord

H.R. Rep. No. 79-1287, at 1-2 (1946).

As part of a “general trend toward increasing the

scope of the waiver by the United States of its sovereign immunity from suit,” Yellow Cab Co., 340 U.S. at

550, the FTCA “establish[ed] novel and unprecedented

governmental liability,” Rayonier, 352 U.S. at 319.

Although liability was initially limited to certain negligent acts, Congress responded to a series of abusive

and illegal wrong-house raids conducted by federal law

enforcement officers by adding a “law enforcement proviso” in 1973 in order “to deprive the Federal Government of the defense of sovereign immunity in cases in

which Federal law enforcement agents, acting within

the scope of their employment, or under color of Federal law,” commit certain intentional torts. S. Rep. No.

93-588, at 3 (1973).

In defining the scope of the FTCA’s waiver of sovereign immunity, Congress was careful to balance

competing interests, as evidenced by the many express

statutory exceptions limiting the United States’s liability. See, e.g., 28 U.S.C. § 2674 (restricting available

damages and retaining defenses); id. § 2680 (listing

thirteen express exceptions to liability); Federal Employees Liability Reform and Tort Compensation Act

of 1988, Pub. L. No. 100-694, 100th Cong. § 2 (restoring

immunity for federal employees from personal liability

for common law torts in response to Westfall v. Erwin,

484 U.S. 292 (1988)). As this Court has explained, the

FTCA “was the product of nearly thirty years of congressional consideration and was drawn with numerous substantive limitations and administrative safeguards.” Indian Towing Co., 350 U.S. at 68.

None of the FTCA’s express exceptions eliminate

liability for federal employees’ actions that “have some

nexus with furthering federal policy” and “can reasonably be characterized as complying with the full range

of federal law.” Pet. App. 17a. To the contrary, the

text of the FTCA’s jurisdictional provision seems to expressly contemplate that the federal government will

be liable under such circumstances—after all, most

federal employees “acting within the scope of [their] office or employment,” 28 U.S.C. § 1346(b)(1), could be

said to be engaging in the furtherance of federal policy.

Thus, by crafting an unwritten exception to the FTCA

under the guise of the Supremacy Clause, the court below “abandon[ed] [its] role as [an] interpreter[] of statutes,” Bostock v. Clayton Cnty., 590 U.S. 644, 677

(2020), instead engaging in an unconstitutional “act of

judicial legislation,” Carter v. United States, 145 S. Ct.

519, 523 (2025) (Thomas, J., dissenting from denial of

writ of certiorari); see Simmons v. Himmelreich, 578

U.S. 621, 631 (2016) (“declin[ing] to ignore the text of

the [FTCA] to achieve . . . imprudently restrictive results” when the plain text is clear).

B. Waiving Sovereign Immunity Is Uniquely

Within the Purview of Congress.

Wrong under any circumstances, this judicial

usurpation of the congressional role is especially troublesome in the context of sovereign immunity. Indeed,

since the earliest invocations of the sovereign immunity doctrine, this Court has consistently maintained

that Congress, as the people’s representative, has the

power to decide whether or not to waive the United

States’ sovereign immunity. See, e.g., The Siren, 74

U.S. (7 Wall.) 152, 154 (1868) (explaining that any person who brings suit against the United States “must

bring his case within the authority of some act of Congress”); Carr v. United States, 98 U.S. (8 Otto) 433, 437

(1878) (“We consider it to be a fundamental principle

that the government cannot be sued except by its own

consent,” and “that without an act of Congress[,] no direct proceeding can be instituted against the government or its property.”); Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601 U.S. 42, 48 (2024) (“the

power to waive the federal government’s immunity is

Congress’s prerogative”).

As the history of the FTCA makes clear, waivers

of sovereign immunity necessarily require a determination of “the appropriate balance between protecting

government policymaking and providing remedies to

those injured by government actions.” John Copeland

Nagle, Waiving Sovereign Immunity in an Age of Clear

Statement Rules, 1995 Wis. L. Rev. 771, 818 (1995).

Decisions involving such matters, according to this

Court, are squarely within Congress’s “bailiwick,” and

thus Congress is “[t]he right governmental actor” to

determine whether “to waive immunity.” Thacker, 587

U.S. at 226; see Harold J. Krent, Reconceptualizing

Sovereign Immunity, 45 Vand. L. Rev. 1529, 1531

(1992) (“The dominant justification for sovereign immunity must be that we trust Congress, unlike any

other entity, to set the rules of the game.”); cf. Egbert

v. Boule, 596 U.S. 482, 491 (2022) (creation of causes

of action involves policy considerations that “Congress

is ‘far more competent than the Judiciary’ to weigh”

(quoting Schweiker v. Chilicky, 487 U.S. 412, 423

(1988))).

Because the decision whether to waive sovereign

immunity belongs to Congress, and Congress alone,

this Court has been clear that the courts should not

second-guess Congress’s decision to waive immunity.

See, e.g., United States v. Muniz, 374 U.S. 150, 165-66

(1963) (“We should not . . . narrow the remedies provided by Congress.”). Thus, “once Congress has acted

to permit the claim of the aggrieved against the sovereign to be pursued in a judicial forum,” “courts should

not frustrate the legislative promise of relief by reconstructing a broader scope of immunity through a hostile and narrow construction of the statute.” Gregory

C. Sisk, Twilight for the Strict Construction of Waivers

of Federal Sovereign Immunity, 92 N.C. L. Rev. 1245,

1252 (2014).

Indeed, because of the FTCA’s textual clarity,

cases brought pursuant to that statute “do[] not [even]

implicate the general rule that ‘a waiver of the Government’s sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.’”

Dolan v. U.S. Postal Service, 546 U.S. 481, 491-92

(2006) (quoting Lane v. Peña, 518 U.S. 187, 192

(1996)); see also Yellow Cab Co., 340 U.S. at 548 n.5

(“Where a statute contains a clear and sweeping

waiver of immunity from suit on all claims with certain well defined exceptions, resort to that rule (of

strict construction) cannot be had in order to enlarge

the exceptions.” (quoting Emps.’ Fire Ins. Co. v. United

States, 167 F.2d 655, 657 (9th Cir. 1948))). That is because the plain text of the FTCA reflects “the balance

struck by Congress in the context of tort claims against

the Government.” United States v. Kubrick, 444 U.S.

111, 117 (1979). Courts “are not free to construe [the

FTCA] so as to defeat its obvious purpose.” Id.; see also

United States v. Nordic Vill. Inc., 503 U.S. 30, 34

(1992) (“We have on occasion narrowly construed exceptions to waivers of sovereign immunity where that

was consistent with Congress’ clear intent, as in the

context of the ‘sweeping language’ of the Federal Tort

Claims Act.” (quoting Yellow Cab Co., 340 U.S. at

547)).

Therefore, the only “proper objective of a court attempting to construe [the FTCA] is to identify ‘those

circumstances which are within the words and reason

of the exception’—no less and no more.” Kosak v.

United States, 465 U.S. 848, 853 n.9 (1984) (quoting

Dalehite v. United States, 346 U.S. 15, 31 (1953)). No

provision of the Constitution authorizes courts to

“usurp[] the functions of a legislator, and desert[] those

of an expounder of the law.” 1 Joseph Story, Commentaries on the Constitution of the United States § 426, at

410 (1st ed. 1833). That is critically important in the

context of the Supremacy Clause, given that the Framers specifically chose judicial review as the means of

enforcing the supremacy of federal law while leaving

it to Congress to actually write those laws that would

reign supreme.

C. The FTCA Is a Federal Law, so

Application of Its Text, as Written by

Congress, Cannot Possibly Run Afoul of

the Supremacy Clause.

The court below erred in two fundamental respects

when it claimed the Supremacy Clause mandated a judicial rewriting of the FTCA. First, the court misunderstood that as a constitutional act of Congress, the

FTCA is the supreme law of the land. The fact that

Congress chose to incorporate state law as the source

of substantive liability does not change that fact. Second, it relied on pre-FTCA case law that did not involve an express waiver of sovereign immunity or a

federal cause of action.

1. Again, the FTCA makes “the United States[]

[liable] 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) (emphasis added). The court below held

that because the FTCA incorporates state tort law, using it to hold federal actors accountable when they act

in compliance with other federal laws and policies

would amount to the domination of state tort law over

federal law.

This is wrong. Congress has the authority to incorporate state law as the source of liability within federal law. See, e.g., Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State

Criminal Law, and the Supremacy Clause, 112 Yale

L.J. 2195, 2242-43 (2003) (“the extent to which state

law may constrain federal officers is ultimately up to

Congress”). As this Court has recognized, “[a]lthough

Congress cannot enable a State to legislate, Congress

may adopt the provisions of a State on any subject.”

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 80 (1824); see

also United States v. Sharpnack, 355 U.S. 286, 293

(1958) (noting Congress’s “power to assimilate the

state laws”). In fact, this Court has explicitly recognized the FTCA as an “[e]xample[] of uses made by

Congress of . . . state legislative action in connection

with the exercise of federal legislative power.” Sharpnack, 355 U.S. at 294-95.

Moreover, when a federal statute incorporating

state law is enforced, the result is “not to enforce the

laws of the state, . . . but to enforce the federal law, the

details of which, instead of being recited, are adopted

by reference.” People of Puerto Rico v. Shell Co., 302

U.S. 253, 266 (1937); see also Waxman & Morrison, supra, at 2253 (“If Congress were expressly to provide

that a federal officer is subject to state criminal law

when discharging his federal duties, then he would

lack the federal authority to engage in acts that violate

state law,” even if that conduct “would otherwise fall

within the scope of his federal authority.”); Henry M.

Hart, Jr., The Relations Between State and Federal

Law, 54 Colum. L. Rev. 489, 529 (1954) (“the state law

has been absorbed, as it were, as the governing federal

rule,” “ultimately attributable to the Constitution,

treaties or statutes of the United States” (quoting Bd.

of Comm’rs of Jackson Cnty. v. United States, 308 U.S.

343, 349-50, 351-52 (1939))). This makes sense—after

all, plaintiffs would not even be able to file suits of this

nature against federal defendants if not for the FTCA.

And certainly, federal courts would not have jurisdiction over FTCA claims if those claims strictly involved

the enforcement of state law.

§ 1346(b)(1).

See 28 U.S.C.

To put it simply: the FTCA is a federal statute

through-and-through, notwithstanding its incorporation of “the law of the place where the act or omission

occurred.” Id. Because it is a federal statute, the

FTCA’s application cannot possibly violate the Supremacy Clause. By concluding otherwise, and then

treating the Supremacy Clause as a license to rewrite

a federal statute, the court below disregarded centuries of this Court’s precedent.

2. The court below also erred in relying on a series

of this Court’s Supremacy Clause immunity cases from

the 1800s. Pet. App. 16a-19a (citing Denson, 574 F.3d

at 1336-37, 1348, and Kordash v. United States, 51

F.4th 1289, 1293-94 (2022)); see Denson, 574 F.3d at

1346 (citing in turn Tennessee v. Davis, 100 U.S. 257,

262-63 (1880); Neagle, 135 U.S. at 57, 60-61, 75, ; Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 363

(1816)). None of these cases supports the radical rule

adopted by the court below. Davis and Neagle involved

the distinct question whether, and to what extent, federal officers could be criminally prosecuted for murder

in state courts when the officer was acting in self-defense and while carrying out his federal duties. And

Hunter’s Lessee is even more inapposite; it merely established the supremacy of the federal judiciary’s authority in deciding questions of federal law—an issue

that is not relevant here.

The Eleventh Circuit relied most heavily on Neagle, which it explained “stands for the proposition 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.” Denson, 574 F.3d

at 1347. That is certainly true with respect to

protecting federal officers from state criminal prosecution in the exercise of their duties—the scenario at issue in Neagle. See 135 U.S. at 75 (“if the prisoner is

held in the state court to answer for an act which he

was authorized to do by the law of the United States,

. . . [and] he did no more than what was necessary and

proper for him to do, he cannot be guilty of a crime under the law of the state of California”); see also Leslie

A. Gardner & Justin C. Van Orsdol, Solidifying Supremacy Clause Immunity, 30 Wm. & Mary Bill Rts. J.

567, 569 (2022) (“Supremacy Clause immunity protects federal officers from ‘allegedly criminal conduct

undertaken in [the] discharge of [their] federal duties,’

if the officer was: (1) authorized by federal law and (2)

‘did no more than what was necessary and proper’ in

discharging his or her duties.” (footnote omitted) (quoting Waxman & Morrison, supra, at 2197; Neagle, 135

U.S. at 75)); Waxman & Morrison, supra, at 2252

(“[F]ederal officers may not be subject to state criminal

prosecution for conduct they reasonably believe to be

necessary and proper to the discharge of their federal

functions.”).

Yet that proposition does not apply with respect to

the FTCA. First, as noted earlier, suits filed pursuant

to the FTCA do not enforce state law. The FTCA incorporates state law as a substantive source of liability, but that state law effectively becomes federal law

when invoked under an FTCA cause of action. Second,

this Court granted Supremacy Clause immunity in

Neagle in large part due to its concerns about the sovereignty of the United States. See, e.g., 135 U.S. at 61

(“Without the concurrent sovereignty referred to, the

national government would be nothing but an advisory

government.”); id. at 62 (“While it is limited in the

number of its powers, so far as its sovereignty extends,

it is supreme.”). Yet in the context of the FTCA, courts

are not deputized to weigh sovereignty interests; rather, Congress has already done so itself through the

FTCA’s carefully crafted, explicit exceptions.

* * *

In sum, the decision below reflects a fundamental

misunderstanding of the Supremacy Clause, the

FTCA, and the role of the court as an interpreter of the

law rather than a law-maker. Congress expressly

waived sovereign immunity for tort claims arising out

of wrong-house raids like the one at issue here. Neither the Supremacy Clause, nor any other constitutional provision, gave the court below license to narrow

that waiver. To the contrary, fundamental separation

of powers principles prohibited it from doing so.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

MIRIAM BECKER-COHEN

NARGIS ASLAMI**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

March 14, 2025

* Counsel of Record

** Not admitted in

D.C.; supervised by

principals of the firm

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.