Reply 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 briefApr 22, 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

REPLY 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

TABLE OF CONTENTS

Page

Reply Argument..................................................................1

The parties agree that the answer to QP1 is

no. ...................................................................................3

II. The government refuses to answer QP2. .................5

A. Assessing the discretionary-function

exception’s scope is necessary to decide

QP2. ..........................................................................5

B. The proviso’s interaction with Section

2680’s other exceptions is beyond the

scope of QP2. ...........................................................7

III. The best way to answer QP2 is to harmonize

the exception and proviso. ..........................................9

IV. If the Court finds the exception and proviso

conflict, the proviso should still prevail. .................16

A. The government’s arguments defy the

text of the FTCA and render the proviso

a nullity. .................................................................16

B. Although the FTCA’s historical context

is not the law, it confirms the meaning of

the Act’s text. .......................................................22

Conclusion ..........................................................................24

TABLE OF AUTHORITIES

Page

CASES

Abitron Austria GmbH

v. Hetronic International, Inc.,

600 U.S. 412 (2023) ........................................................8

Alaska v. United States,

545 U.S. 75 (2005) ..................................................17–19

Ali v. Federal Bureau of Prisons,

552 U.S. 214 (2008) ......................................................21

Babb v. Wilkie,

589 U.S. 399 (2020) ......................................................10

Carlson v. Green,

446 U.S. 14 (1980) ..................................................19, 23

Cipollone v. Liggett Group,

505 U.S. 504 (1992) ........................................................4

Dolan v. USPS,

546 U.S. 481 (2006) ......................................................20

Egbert v. Boule,

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

FDIC v. Meyer,

510 U.S. 471 (1994) ..........................................11–12, 20

Graham v. Connor,

490 U.S. 386 (1989) ......................................................15

Haile v. Pittman,

389 S.E.2d 564 (Ga. Ct. App. 1989) ...........................14

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ......................................................11

iii

Hatahley v. United States,

351 U.S. 173 (1956) ........................................................9

HollyFrontier Cheyenne Refining, LLC

v. Renewable Fuels Ass’n,

594 U.S. 382 (2021) ......................................................17

Indian Towing Co. v. United States,

350 U.S. 61 (1955) ....................................................9, 11

Jones v. Hendrix,

599 U.S. 465 (2023) ........................................................6

Kordash v. United States,

51 F.4th 1289 (11th Cir. 2022) ......................................3

Lake Country Estates, Inc.

v. Tahoe Regional Planing Agency,

440 U.S. 391 (1979) ........................................................7

Linder v. United States,

937 F.3d 1087 (7th Cir. 2019) .....................................12

Molzof v. United States,

502 U.S. 301 (1992) ......................................................20

National Ass’n of Manufacturers v. DOD,

583 U.S. 109 (2018) ......................................................23

Nguyen v. United States,

556 F.3d 1244 (11th Cir. 2009) ...............................6, 21

Rayonier v. United States,

352 U.S. 315 (1957) ......................................................15

Richards v. United States,

369 U.S. 1 (1962) ............................................................4

Riegel v. Medtronic, Inc.,

552 U.S. 312 (2008) ........................................................4

Sheridan v. United States,

487 U.S. 392 (1988) ................................................13–14

Shivers v. United States,

1 F.4th 924 (11th Cir. 2021) ........................................12

Simmons v. Himmelreich,

578 U.S. 621 (2016) ........................................................8

Smith v. United States,

507 U.S. 197 (1993) ........................................................8

Torres-Estrada v. Cases,

88 F.4th 14 (1st Cir. 2023) ..........................................12

United States v. Gaubert,

499 U.S. 315 (1991) ..................................3, 9–11, 13, 20

United States v. Hayes,

555 U.S. 415 (2009) ......................................................20

United States v. Shearer,

473 U.S. 52 (1985) ........................................................15

United States v. Varig Airlines,

467 U.S. 797 (1984) ........................................................6

United States v. Yellow Cab Co.,

340 U.S. 543 (1951) ......................................................20

Warger v. Shauers,

574 U.S. 40 (2014) ........................................................22

Wyatt v. Cole,

504 U.S. 158 (1992) ......................................................12

Xi v. Haugen,

68 F.4th 824 (3d Cir. 2023) .........................................12

CONSTITUTIONAL AND STATUTORY PROVISIONS

18 U.S.C. 981(b) .................................................................21

19 U.S.C. 1605 ....................................................................21

28 U.S.C. 1346(b)(1).....................................................12–13

28 U.S.C. 2674 ................................................................4, 11

28 U.S.C. 2680 ......................................................................1

28 U.S.C. 2680(c)................................................................21

28 U.S.C. 2680(h) .........................................................11, 15

28 U.S.C. 2680(k) .................................................................8

Georgia Code Annotated 51-1-13 ....................................14

Georgia Code Annotated 51-1-14 ....................................14

Georgia Code Annotated 51-7-1 ......................................14

Georgia Code Annotated 51-7-20 ....................................14

Georgia Code Annotated 51-7-40 ....................................14

Georgia Code Annotated 51-7-81 ....................................14

RULES

Fed. R. Crim. P. 41(e)(2)(A).............................................12

OTHER AUTHORITIES

Andrew H. Malcolm, Drug Raids Terrorize 2

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

1973) ..............................................................................23

Caleb Nelson, What is Textualism?, 91 Va. L.

Rev. 347 (2005) .............................................................22

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) ......................................................9–10

Frank H. Easterbrook, The Role of Original

Intent in Statutory Construction, 11 Harv. J.

L. & Pub. Pol’y 59 (1988) ............................................23

H.R. Rep. No. 100-700 (1988).............................................4

Samuel L. Bray, The Mischief Rule, 109 Geo. L.

J. 967 (2021) ..................................................................22

William Baude & Stephen E. Sachs, The Law of

Interpretation, 130 Harv. L. Rev. 1079 (2017) ........22

REPLY ARGUMENT

This Court granted certiorari to address two questions.

QP1: 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.

The answer is no, and the parties agree. Court-appointed amicus attempts to import the Supremacy

Clause into the FTCA through the concept of preemption. But that doctrine has no relationship to the Eleventh Circuit’s Supremacy Clause bar, which baselessly

renders the FTCA unconstitutional unless a plaintiff can

prove a violation of clearly established constitutional

law as a precondition to a tort claim.

QP2: Whether the discretionary-function exception

is categorically inapplicable to claims arising

under the law enforcement proviso to the intentional torts exception.

The answer is yes. As Petitioners have explained, resolving QP2 requires the Court to assess whether two

provisions of 28 U.S.C. 2680—the discretionary-function

exception and the law-enforcement proviso—conflict.

Pet. Br. 21–22. If they do not, the Court need not go further. Id. at 39–40. And if they do, the Court can resolve

the conflict by applying familiar canons of statutory interpretation. Id. at 40.

Rather than address QP2, the government asks the

Court to answer a different question: “whether the law

enforcement proviso * * * removes [its] claims from the

scope of the FTCA’s 12 other exceptions[.]” Gov’t Br. 6

see also id. at 21, 24, 34–35 (similar). To answer this revised QP2, the government contends that the Court

must: (1) assume that the exception necessarily conflicts

with the law-enforcement proviso; and then (2) decide

whether the proviso trumps each “of the FTCA’s other

exceptions, including the discretionary function exception[.]” Id. at 34–35.

But this Court did not ask the question the government now attributes to it—and for good reason. The

government’s approach would require the Court to

begin by assuming that the discretionary-function exception barred Petitioners’ claims below (a false premise) and conclude by settling all potential conflicts between the proviso and the other provisions of Section

2680 (a question far beyond the scope of this case). See

pp. 5–9, infra. On both ends, the government discards

basic tenets of statutory interpretation and distorts

FTCA jurisprudence.

In the process, the government advances a theory of

the discretionary-function exception so expansive that

it threatens to swallow the proviso entirely. Gov’t Br.

36–37, 41–43. To avoid total nullification, the government advances an atextual, ahistorical carve-out from

the discretionary-function exception that would require

plaintiffs to successfully plead a Bivens claim to recover

for ordinary torts under the FTCA. Id. at 36–37.

Petitioners, meanwhile, rely on text and precedent.

The discretionary-function exception protects only “legislative and administrative decisions grounded in social,

economic, and political policy[.]” United States v.

Gaubert, 499 U.S. 315, 323 (1991) (citation omitted). This

categorically excludes intentional torts committed by

law-enforcement officers. Petitioners’ approach allows

the Court to harmonize the discretionary-function exception and the law-enforcement proviso by applying its

precedent and answering only the questions presented.

Still, if the Court finds that the two provisions conflict, it should hold that the law enforcement proviso

prevails. Resolving conflict in the proviso’s favor honors

the text Congress enacted and ensures that the 1974

amendment to the FTCA is not eviscerated in its core

applications—like when federal officers raid the wrong

house.

The parties agree that the answer to QP1 is no.

The government and Petitioners agree that the answer to QP1 begins and ends with the name of the statute: the Federal Tort Claims Act. Pet. Br. 47–51; Gov’t

Br. 47. As the government explains, “when [a] federal

law” like the FTCA “waives the United States’ immunity and authorizes the government to be sued, the Supremacy Clause instructs courts to permit those suits.”

Gov’t Br. 47.

The Eleventh Circuit’s Supremacy Clause bar creates a free-floating regime of qualified sovereign immunity whenever an officer’s actions “have some nexus

with furthering” amorphous “federal policy[.]” Kordash

v. United States, 51 F.4th 1289, 1293 (11th Cir. 2022) (citation omitted). But here, there is no conflict between

state and federal law. The FTCA “was designed primarily to remove the sovereign immunity of the United

States” when a federal employee violates incorporated

state tort law. Richards v. United States, 369 U.S. 1, 6

(1962).

To defend the ruling below, Court-appointed amicus

improperly conflates federal preemption with the Supremacy Clause bar. See Amicus Br. 19–23, 26–32.

Preemption can preclude tort suits against private parties “if [state] law actually conflicts with federal law[.]”

Cipollone v. Liggett Grp., 505 U.S. 504, 516 (1992). But

because the elements of proviso torts hinge on an act’s

unlawfulness, preemption plays no role. See pp. 13–14 &

n.4, infra. Even if negligence claims were involved,

preemption on the merits would be a far cry from the

Supremacy Clause bar. E.g., Riegel v. Medtronic, Inc.,

552 U.S. 312, 330 (2008) (specific preemption clause in

federal statute barred negligence claims against medical-device manufacturer). In any event, the parties

agree that the discretionary-function exception—not

the Supremacy Clause—expresses Congress’s judgment about how the FTCA interacts with the rest of federal law. Pet. Br. 48; Gov’t Br. 47; BIO 20–21.

Amicus’s other argument, which hinges on the government’s authorization to invoke “any * * * defenses

to which the United States is entitled,” 28 U.S.C. 2674,

fares no better. Congress added that language through

the Westfall Act to clarify that the United States can assert “ordinary tort defenses” in FTCA suits. H.R. Rep.

No. 100-700, at 5 (1988). It does not revive defenses that

the FTCA otherwise forecloses. Contra Amicus Br. 24–

25, 40.

II.

The government refuses to answer QP2.

The government rewrites QP2 to ask “whether the

law enforcement proviso * * * removes [its] claims from

the scope of the FTCA’s 12 other exceptions[.]” Gov’t

Br. 6; see also id. at 21, 24, 34–35. By doing so, the government urges the Court to assume two things: First,

that the discretionary-function exception and the lawenforcement proviso necessarily conflict (such that

there is no need to construe the discretionary-function

exception). Second, that all 12 exceptions in Section 2680

interact with the proviso identically (such that the proviso’s failure to overcome one exception renders it unable to overcome any exception). Neither assumption is

warranted.

A. Assessing the discretionary-function exception’s scope is necessary to decide QP2.

The government has buyer’s remorse about the

question it asked the Court to consider: “Whether the

discretionary function exception is categorically inapplicable to claims arising under the law enforcement proviso to the intentional torts exception.” BIO 21.

Linguistically, the answer to this question can be yes

for two reasons: Either because the category of claims

barred by the discretionary-function exception does not

encompass the category of claims allowed by the law-enforcement proviso (the harmony approach), or—if the

categories overlap—because the proviso exempts its

claims from the discretionary-function exception (the

hostility approach). See Pet. Br. 21–22. Under either approach, QP2 cannot be answered without assessing

whether the exception applies to the claims the proviso

allows. Still, this inquiry does not require the Court “to

define with precision every contour of the discretionary

function exception.” United States v. Varig Airlines, 467

U.S. 797, 813 (1984). It merely asks whether two discrete categories overlap.

By rewriting QP2 to ask whether the proviso “removes [its] claims” from the discretionary-function exception, Gov’t Br. 6, the government incorrectly presumes that the harmony approach is off the table. 1 But

the courts should read statutory provisions “in harmony, not set them at cross-purposes.” Jones v. Hendrix, 599 U.S. 465, 478 (2023).

The government goes further. Not only does it urge

this Court to assume the discretionary-function exception applies here, Gov’t Br. 40–41, but it also implores

the Court to affirm on that basis, id. at 24. This combination asks the impossible. The courts below did not hold

that Petitioners’ proviso claims were barred by the discretionary-function exception. Pet. App. 18a–19a (Eleventh Circuit holding proviso claims were barred by the

Supremacy Clause, not the discretionary-function exception); Pet. App. 26a–27a (district court holding the

same). Nor could they—such a holding would defy circuit precedent. Nguyen v. United States, 556 F.3d 1244,

1257 (11th Cir. 2009). But see Gov’t Br. 39 (claiming that

“[t]he courts below determined that petitioners’

A similar question could be “whether regulations governing

gas-powered vehicles are categorically inapplicable to vehicles

made by Tesla.” The answer is yes. Because Tesla makes only electric vehicles, resolving the question does not require the assumption that gas-powered-car regulations apply to Tesla unless some

provision removes Tesla vehicles from the regulations. Tesla vehicles never fell within the regulations in the first place.

[proviso claims] fall within * * * the discretionary function exception”).

If the government had urged the Court to grant certiorari to address whether the proviso “removes [its]

claims” from the discretionary-function exception, Gov’t

Br. 6, Petitioners would have objected to that framing—

the QP would have assumed a holding that was never

made below, see Pet. App. 18a–19a. In any event, that is

not what QP2 asks. Given the decisions below and the

language of QP2, the only way for the Court to find that

Petitioners’ proviso claims are barred by the discretionary-function exception is to hold that Petitioners’ proviso claims are barred by the discretionary-function exception.

B. The proviso’s interaction with Section

2680’s other exceptions is beyond the scope

of QP2.

By broadening the question presented to “the

FTCA’s 12 other exceptions,” Gov’t Br. 6, the government asks the Court to issue an advisory opinion on the

scope of every exception in Section 2680 without even

analyzing if, let alone how, these exceptions might conflict with the proviso. But this Court does not address

“any issues other than those fairly comprised within the

question presented,” absent exceptional circumstances.

Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency,

440 U.S. 391, 398 (1979).

Each of the FTCA’s exceptions requires its own textual analysis because, again, the Court’s role is to avoid

inter-statutory conflict, not presume it. True, some of

Petitioners’ textual arguments may apply to the other

exceptions. But others would not. Either way, other conflicts within Section 2680 are beyond the scope of this

case. Cf. Simmons v. Himmelreich, 578 U.S. 621, 629

(2016) (“If the Government is right about the other provisions of Chapter 171, the Court may hold so in the appropriate case.”).

Although the government asks the Court to settle

every potential dust-up between the proviso and the

rest of Section 2680, it can only identify a single hypothetical conflict: the foreign-country exception. Gov’t

Br. 29–30 (citing 28 U.S.C. 2680(k)). The government implies that, unless the proviso can defeat the foreigncountry exception, it cannot overcome the discretionary-function exception. Ibid. But that result does not follow.

The foreign-country exception codifies an established canon of construction: Domestic statutes do not

apply internationally unless Congress explicitly says so.

See, e.g., Smith v. United States, 507 U.S. 197, 204 (1993)

(explaining that the “longstanding” “presumption

against extraterritorial application of United States

statutes * * * is doubly fortified by the language of” the

FTCA (cleaned up)). This presumption may prevent the

proviso from reaching extraterritorially, even without

Section 2680(k). Cf. Abitron Austria GmbH v. Hetronic

Int’l, Inc., 600 U.S. 412, 420 (2023) (“[E]ven statutes . . . that expressly refer to ‘foreign commerce’ * * * are not extraterritorial.” (citation omitted)). As a result, the presumption against extraterritoriality could support the argument that the foreigncountry exception overrides the proviso should the

Court find that those provisions conflict in an appropriate case. But extraterritoriality has nothing to do with

potential conflict between the proviso and the discretionary-function exception.

III.

The best way to answer QP2 is to harmonize

the exception and proviso.

The simplest way to resolve QP2 is to hold that the

discretionary-function exception is categorically inapplicable to claims under the law-enforcement proviso because each subsection addresses a distinct category of

claims. The discretionary-function exception reinstates

sovereign immunity for claims that disguise policy disputes as tort suits. The law enforcement proviso, meanwhile, waives sovereign immunity for intentional torts

that are necessarily unlawful. The two do not overlap,

and this Court has never held that they do. 2

1. “Discretionary function” is a legislative term of art

that cannot be disentangled from regulatory policy. Pet.

Br. 24–28; see also Gaubert, 499 U.S. at 325 (“the policy

of the regulatory regime”). Congress used this term of

art precisely because it refers to administrative discretion vested in the executive by law. See Sisk Amicus Br.

18; Pet. Br. 27–28; 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 (1956) (Peck).

By our count, this Court has interpreted the discretionaryfunction exception eight times, including Indian Towing Co. v.

United States, 350 U.S. 61 (1955). Pet. Br. 28–30. In the only case

that did not involve negligence—Hatahley v. United States, 351

U.S. 173 (1956)—the Court held that the discretionary-function exception did not cover federal employees’ intentional torts.

Moreover, when Congress specified that a claim

must be “based upon” the exercise or the failure to exercise such a discretionary function—as opposed to

“arising” out of some act, as in the rest of Section 2680

(see Pet. Br. 26)—it created a causality requirement. Cf.

Babb v. Wilkie, 589 U.S. 399, 405 (2020) (“[T]he phrase

‘based on’ indicates a but-for causal relationship.” (citation omitted)). For a claim to fall within the exception,

then, the plaintiff’s injury must have resulted from the

federal employee’s exercise of a “legislative [or] administrative” power that was delegated to the employee to

further some “social, economic, [or] political policy.”

Gaubert, 499 U.S. at 323. An act disconnected from policy cannot be based on it. See Peck at 228.

The government does not respond to these arguments. Instead, it merely claims that “[d]iscretionary

conduct is not confined to the policy or planning level.”

Gov’t Br. 44 (quoting Gaubert, 499 U.S. at 325). But not

all exercises of discretion are “discretionary functions.”

As Gaubert teaches, protected conduct—even at the operational level—must still be rooted in “established governmental policy.” 499 U.S. at 324. If no statute, regulation, or agency guideline confers discretion on an employee to make policy determinations, the discretionaryfunction exception cannot protect his action. Ibid.; see

also Pet. Br. 30–31.

2. Rather than engage with Petitioners’ arguments

about the discretionary-function exception, the government urges the Court to import the doctrine of qualified

immunity into Gaubert’s first prong, Gov’t Br. 36–37,

and disregard its second, id. at 42–43 (conceding that

line-level police do not make policy). Under the government’s theory, federal employees exercise discretion

under Gaubert’s first prong whenever their actions involve an “element of judgment or choice,” unless

“clearly established statutory or constitutional” law

“specifically prescribes a course of action[.]” Id. at 36–37

(mashing together Gaubert and Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). And the exercise of that discretion satisfies Gaubert’s second prong anytime an officer merely executes federal policy. Id. at 42–43. But

see 28 U.S.C. 2680(h) (waiving immunity when officers

“empowered * * * to execute searches” commit enumerated torts (emphasis added)). The upshot is that—

unless a law-enforcement officer violates a mandatory

statute or clearly established constitutional law—the

discretionary-function exception swallows the proviso.

See Gov’t Br. at 37.

The government’s interpretation defies text, history, and the linear nature of time. The discretionaryfunction exception, which Congress enacted in 1946, predates this Court’s creation of the clearly-established test

by nearly four decades. See Public Accountability Amicus Br. at 19. Yet the government asks this Court to find

that the FTCA’s drafters clairvoyantly embedded qualified sovereign immunity “into a statute designed to

limit” immunity. Indian Towing Co. v. United States,

350 U.S. 61, 69 (1955). Cf. FDIC v. Meyer, 510 U.S. 471,

478 (1994) (“[T]he United States simply has not rendered itself liable under [the FTCA] for constitutional

tort claims.”).

The government offers no textual justification for its

interpretation because there is none. The FTCA makes

the United States liable for its employees’ torts “in the

same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. 2674; see

also 28 U.S.C. 1346(b)(1). Private individuals, of course,

do not enjoy qualified immunity. Wyatt v. Cole, 504 U.S.

158, 168 (1992). And it makes no sense to superimpose a

doctrine that defends officers against individual liability

onto a statute that assumes government liability. Xi v.

Haugen, 68 F.4th 824, 839–840 (3d Cir. 2023) (“[T]he

chilling effect and social costs” associated with individual liability “are absent in the FTCA context[.]”); see

also Meyer, 510 U.S. at 485 (noting qualified immunity

would not be available to a federal agency).

No circuit court has ever adopted the government’s

position, though several have rejected it. E.g., Xi, 68

F.4th at 839–840; Torres-Estrada v. Cases, 88 F.4th 14,

22 (1st Cir. 2023); see also Loumiet v. United States, 828

F.3d 935, 943 (D.C. Cir. 2016) (declining to incorporate

the clearly-established test into the discretionary-function exception without settling the issue). Even the Seventh and Eleventh Circuits, which the government cites

in its favor, have not accepted its qualified immunity

theory. Shivers v. United States, 1 F.4th 924 (11th Cir.

2021); Linder v. United States, 937 F.3d 1087 (7th Cir.

2019).

This case illustrates the absurd results that flow

from the government’s theory. The government would

have the Court hold that, when a federal law-enforcement officer obtains a warrant commanding him to

search a specific place, (1) the officer nevertheless retains discretion to search a different place, 3 and (2) the

The government’s suggestion that Agent Guerra had even colloquial “discretion” to raid Petitioners’ home is puzzling. Federal

law does not give officers discretion to execute warrants wherever

they’d like. See Fed. R. Crim. P. 41(e)(2)(A) (warrant must “identify

exercise of that discretion is the sort of policy decision

Congress intended to immunize. Gov’t Br. 44–45 (applying the government’s understanding of the exception to

the facts of this case). As we have explained, this is a far

cry from the “legislative and administrative decisions

grounded in social, economic, and political policy” that

this Court has found the exception to protect. Gaubert,

499 U.S. at 323 (citation omitted). See Pet. Br. 28–33.

3. The government argues that straying from its allinclusive interpretation of the discretionary-function

exception would allow state tort law to reach the actions

of federal police, whose job it is to “engage in activities

that could be tortious if engaged in by a private person[.]” Gov’t Br. 43. This fear is unfounded.

The United States does not need the discretionaryfunction exception to shield it from liability for lawful

law-enforcement actions. All FTCA cases begin with

Section 1346(b)(1), which waives the government’s sovereign immunity “under circumstances where the

United States, if a private person, would be liable to the

claimant” under state law. 28 U.S.C. 1346(b)(1). Thus, to

invoke the FTCA’s initial waiver of immunity, a plaintiff

must satisfy the elements of the relevant state tort. If

he fails to do so, the United States’ sovereign immunity

remains intact; there is no need to consider the FTCA’s

exceptions. See Sheridan v. United States, 487 U.S. 392,

the person or property to be searched” and “command the officer to

* * * execute the warrant” there). Here, the warrant commanded

Guerra and his SWAT team to search 3741 Landau Lane; they were

not empowered to instead search Petitioners’ house at 3756 Denville Trace. D. Ct. Doc. 83-6, at 10. Guerra did not harm Petitioners

by picking one permissible course of action over another—he failed

to comply with a court’s mandatory directive.

400 (1988) (FTCA exceptions “should * * * be construed to apply only to claims that would otherwise be

authorized by the basic waiver of sovereign immunity.”).

Congress understood that the elements of state tort

law prevent runaway FTCA liability. Consider the elements of a battery in Georgia. To prevail, a plaintiff must

prove his injury was not “justified under some rule of

law.” Ga. Code Ann. 51-1-13. If an officer entered a house

for which he had a warrant and arrested the suspect inside, there would be no tort under Georgia law. See

Haile v. Pittman, 389 S.E.2d 564, 566 (Ga. Ct. App. 1989)

(no claim for battery against security guard and police

officers who had probable cause to arrest alleged trespassers). Thus, the suspect’s FTCA claim would fail—

not because the discretionary-function exception reinstates sovereign immunity, but because Section 1346(b)

never waived it.4 In other words, lawful police actions

are not spared by the discretionary-function exception.

Liability—whether attributable to the United States or

individual officers—never existed to begin with.

At bottom, the government appears concerned about

paying for officers’ mistakes in “circumstances that are

tense, uncertain, and rapidly evolving.” Gov’t Br. 42

The other proviso torts work the same way. Under Georgia

law, for example, assault is only actionable if it’s “illegal” or “violent,” Ga. Code Ann. 51-1-14; false imprisonment covers only “unlawful detention,” Ga. Code Ann. 51-7-20; false arrest and malicious

prosecution must lack “probable cause,” Ga. Code Ann. 51-7-1, 517-40; and abuse of process can only be committed “[w]ithout substantial justification,” Ga. Code Ann. 51-7-81. If a plaintiff cannot

prove that the officer acted unlawfully, Section 1346(b) stops an

FTCA claim at the front door, so there is no need to atextually reinforce the back door.

(quoting Graham v. Connor, 490 U.S. 386, 397 (1989)).

That was also Congress’s concern in 1946, when it excepted intentional torts from the FTCA’s coverage. As

the Department of Justice put it at the time, the intentional-torts exception would kick in when “some agent

of the Government gets in a fight with some fellow . . . [a]nd socks him.” United States v. Shearer, 473

U.S. 52, 55 (1985) (plurality opinion) (citation omitted).

This history imparts two lessons that support Petitioners’ arguments. First, when the FTCA was drafted,

Congress viewed intentional torts and discretionary

functions as categorically distinct concepts, each meriting its own exception. Second, in 1974, Congress

changed its mind about the scope of the intentional-torts

exception. After the Collinsville raids, Congress decided

that avoiding responsibility for a police officer’s unlawful decision to “sock a fellow” is unjust. So it assumed

responsibility for six specific torts when committed by

“law enforcement officers of the United States Government.” 28 U.S.C. 2680(h).

Had Congress believed that proviso claims for

wrong-house raids would be instantly defeated by the

discretionary-function exception, it wouldn’t have bothered. Aware of this, the government engrafts a clearlyestablished-law carve-out onto the discretionary-function exception to curtail its statutory obligations without rendering the proviso a complete nullity. But this

carve-out is nowhere to be found in the text of the

FTCA.

If Congress shares the government’s concerns, it can

amend the FTCA again. But the courts cannot. Rayonier Inc. v. United States, 352 U.S. 315, 320 (1957).

IV.

If the Court finds the exception and proviso

conflict, the proviso should still prevail.

Alternatively, if the Court finds that the law-enforcement proviso and the discretionary-function exception conflict, the FTCA’s text and structure resolve the

conflict in the proviso’s favor. See Pet. Br. 40–47. The

government’s arguments to the contrary fail as a matter

of statutory interpretation and would require the Court

to ignore why the proviso was passed in the first place.

A. The government’s arguments defy the text

of the FTCA and render the proviso a nullity.

Invoking the FTCA’s grammar and the general nature of provisos, the government contends that “the proviso in subsection (h) modifies only the exception in subsection (h),” so it does not affect “the 12 other subsections” of 2680. Gov’t Br. 26–27. But the government’s argument faces two overarching problems: the text of the

statute and the rule against surplusage.

1. As we have explained, the proviso’s text mirrors—

and negates—the jurisdiction-stripping language in

Section 2680’s preamble, indicating that the proviso rewaives sovereign immunity for “any claim” arising under it. Pet. Br. 42. The government concedes that Section 2680’s three references to “[t]he provisions of this

chapter and section 1346(b) of this title” are “perhaps

most naturally read to refer to” sections of the FTCA

“other than Section 2680 itself [.]” Gov’t Br. 33 n.3. Under this “most natural[]” reading, the discretionary-

function exception is not one of “[t]he provisions” that

“shall apply” to proviso claims. 5 See Pet. Br. 42.

Still, the government asks the Court to hold that the

proviso negates only the intentional-torts exception in

Section 2680(h). Gov’t Br. 25. This argument runs headlong into the Court’s decision in Alaska v. United States,

545 U.S. 75 (2005). There, interpreting the Alaska Statehood Act (ASA), the Court held that a proviso in one

statutory exception overcame another exception. Id. at

102–109.

The ASA split ownership of Alaskan lands between

the newly formed state and the federal government.

Alaska, 545 U.S. at 104. Under Section 5 of the ASA, the

default rule was that Alaska had title to all lands in the

Alaskan Territory other than those to which the United

States already had title. Ibid. Section 6, however, laid

out various exceptions to this rule. One exception, Section 6(m), gave Alaska presumptive title to lands covered by the Submerged Lands Act. Id. at 79. A separate

exception, Section 6(e), gave Alaska title over lands

identified by three other federal statutes. Id. at 104–105.

But Section 6(e) also included a proviso: “Provided, That

such transfer shall not include lands * * * set apart as

refuges or reservations for the protection of wildlife[.]”

Id. at 105.

The government’s alternative reading would require the

Court to interpret three instances of the same language to mean

different things. But absent “persuasive countervailing evidence,”

this Court does not presume that “Congress meant to adopt one

meaning of [a] term in” one subpart of a statute “and a different one

next door[.]” HollyFrontier Cheyenne Ref., LLC v. Renewable

Fuels Ass’n, 594 U.S. 382, 389 (2021).

Alaska sought title to Glacier Bay National Park, a

piece of land that fell within Section 6(m)’s presumption

of state title but that had also been “set apart” as a “refuge or reservation,” triggering Section 6(e)’s proviso.

Alaska, 545 U.S. at 80–81. Just as the government argues here, Alaska claimed that “the proviso applie[d]

only to [lands] set aside under the three * * * statutes

named in [Section 6(e)]”—the subsection in which the

proviso sat—and extended no further. Id. at 106.

The Court rejected Alaska’s argument. Because Section 6(e)’s proviso operated “affirmatively and independently, as an expression of Congress’ intent” to retain ownership over certain land, the proviso was not

cabined to Section 6(e) alone. Alaska, 545 U.S. at 108.

Such a “broad statement of intent,” the Court concluded,

“applies with just as much force to [lands] that fall

within § 6(e)’s initial clause as to those that do not.” Ibid.

The dispute in Alaska mirrors the dispute here. Like

Alaska, the government argues that “if Congress had intended to create a general rule applicable” beyond Section 2680(h), “it would not have attached the proviso to

a particular exception.” Gov’t Br. 27. But in Alaska, Congress’s decision to attach the proviso to a single subsection did not negate the independent force of its text. 545

U.S. at 108. Furthermore, in both the ASA and FTCA,

the relevant proviso is introduced with a colon, and

“Congress separated the proviso from every other exception by ending each subsection with a period.” Gov’t

Br. 27–28. But neither of these factors led the Alaska

Court to cabin Section 6(e)’s proviso. Even Justice

Scalia, who dissented in Alaska, agreed that provisos

can reach beyond their preceding language when they

modify a different antecedent and announce a free-

standing rule. 545 U.S. at 114–115 (Scalia, J., dissenting

in part). As we have explained, the law-enforcement

proviso does both. See Pet. Br. 23, 42.

The government does not explain why its arguments

are meaningfully different than those this Court rejected in Alaska. But it nevertheless asks this Court to

ignore the proviso’s text to reach a result that Congress

plainly did not intend—the dismissal of proviso claims

arising out of a federal wrong-house raid.

2. By ignoring the plain text, the government’s interpretation of the FTCA renders the proviso surplusage.

The government’s interpretation of “discretionary function,” which effectively encompasses every government

decision that is not specifically prescribed, Gov’t Br. 36,

42, poses a problem: If left unchecked, it would nullify

the proviso when it should uncontroversially apply. See

Pet. Br. 44; Carlson v. Green, 446 U.S. 14, 20 (1980) (explaining it was “crystal clear” that the proviso was enacted so “innocent individuals who are subjected to

raids * * * will have a cause of action against * * * the

Federal government” (citation omitted)).

The government recognizes this problem. It concedes, as it must, that the discretionary-function exception did not bar the victims of the Collinsville raids from

recovering; “the intentional torts exception did.” Gov’t

Br. 37. Yet its expansive theory of the discretionaryfunction exception would preclude even the Collinsville

victims from suing today. See id. at 37, 42–43. To avoid

this absurdity, the government divines a clearly-established-law carve-out. Id. at 36–37. But this carve-out has

no basis in the text or history of the FTCA. No circuit

has ever held otherwise. See pp. 10–12, supra. That’s because the government’s theory requires plaintiffs to

plead a Bivens claim as a precondition to bringing tort

claims. But the FTCA is not a means to adjudicate constitutional torts. Meyer, 510 U.S. at 478.

Without the clearly-established-law carve-out, the

government’s two premises in this case—that the discretionary-function exception is all-encompassing, and

that the proviso is limited to 2680(h) alone—compel the

conclusion that the proviso is useless. 6 That cannot be.

See United States v. Hayes, 555 U.S. 415, 427 (2009);

Cong. Amicus Br. 25 (government’s theory “would nullify [the proviso’s] effect in its heartland case”). And

even with the carve-out, the government’s interpretation would extinguish many claims for non-proviso torts

routinely covered by the FTCA. See, e.g., Gaubert, 499

U.S. at 325 n.7 (negligently operating a vehicle); Molzof

v. United States, 502 U.S. 301 (1992) (medical negligence

in VA hospital).

3. The government’s remaining arguments fail. To

begin, the government overgeneralizes the principle

that waivers of sovereign immunity should be strictly

construed. Gov’t Br. 31, 35. The Court has consistently

rejected this canon’s application in FTCA cases. E.g.,

Dolan v. USPS, 546 U.S. 481, 491–492 (2006); United

States v. Yellow Cab Co., 340 U.S. 543, 547 (1951).

The government’s attempt to leverage the definition

of “investigative or law enforcement officer” in Section

2680(h) similarly falls flat. Although it contends that the

The government’s approach would limit the FTCA so severely

that Court-appointed amicus suggests we return to private bills.

Amicus Br. 43. Given that Congress enacted the FTCA to relieve

itself of that very kludge, Molzof v. United States, 502 U.S. 301,

304–305 (1992), this result would be counterproductive.

definition supports its position, it does not explain why.

See Gov’t Br. 27. Nor does it explain why the em dash’s

“distribution” of Section 2680’s preamble, id. at 32,

avoids the war between the “anys” the Eleventh Circuit

settled in the proviso’s favor, see Nguyen, 556 F.3d at

1252.

The government also references Section 2680(c)’s rewaiver of sovereign immunity, but that provision supports Petitioners’ position. 28 U.S.C. 2680(c). The government invokes Ali v. Federal Bureau of Prisons, 552

U.S. 214 (2008), to suggest that, because Section

2680(c)’s re-waiver of sovereign immunity “modifies

only the exception in the same subsection,” so too should

the proviso. Gov’t Br. 29. But the interaction between

the re-waiver in subsection (c) and the other provisions

of Section 2680 was not at issue in Ali, so that case does

not meaningfully inform the Court’s construction of the

proviso. See 552 U.S. at 215–216 (Court’s objective was

to define “any other law enforcement officer”—a phrase

that appears in only Section 2680(c)).

The government’s interpretation of the proviso, if

applied to the similar language in subsection (c), would

invalidate the latter. Subsection (c)’s re-waiver of sovereign immunity is triggered only if “property was seized

for the purpose of forfeiture under any provision of Federal law[.]” 28 U.S.C. 2680(c). Federal civil-forfeiture

law allows officers to choose when to initiate forfeiture

proceedings and how to manage the storage of forfeited

goods. 18 U.S.C. 981(b); 19 U.S.C. 1605. Under the government’s theory of the FTCA, those choices are protected by the discretionary-function exception unless a

plaintiff can show that the forfeiture of his property (or

damage done to his property wrongly forfeited) violated

clearly established law. See Gov’t Br. 36–37. Such a

reading would dismantle Section 2680(c)’s re-waiver of

sovereign immunity just as it would dismantle the proviso’s.

Finally, the government contends that the proviso

cannot reach beyond subsection (h) because proviso

torts are a subset of those included in the intentionaltorts exception. Gov’t Br. 28. But the proviso’s text is

not dependent on subsection (h). It would still independently and affirmatively waive sovereign immunity

even if the rest of subsection (h) did not exist.

B. Although the FTCA’s historical context is

not the law, it confirms the meaning of the

Act’s text.

Context confirms that Congress enacted the law-enforcement proviso to allow claims like Petitioners’. Unsurprisingly, then, the government asks the Court to ignore all context. Gov’t Br. 35. But Petitioners do not reference extra-textual materials to support an interpretation “that the statutory language does not seem to address.” Caleb Nelson, What is Textualism?, 91 Va. L.

Rev. 347, 369 (2005). Instead, Petitioners offer this evidence to “confirm[] that” Congress’s “choice of language

was no accident.” Warger v. Shauers, 574 U.S. 40, 48

(2014); see also William Baude & Stephen E. Sachs, The

Law of Interpretation, 130 Harv. L. Rev. 1079, 1090

(2017) (“[T]he right way to read a text, in a given circumstance, depends on our reasons for reading it in the

first place.”); Samuel L. Bray, The Mischief Rule, 109

Geo. L.J. 967, 995 (2021) (“The statements of individual

legislators and of committees may summarize, reflect, or

interact with the debate preceding the legislative action.”).

As this Court has recognized, the congressional intent behind the proviso is “crystal clear[.]” Carlson, 446

U.S. at 20. The evidence of this intent (Pet. Br. 8–11) reinforces the proviso’s text—“the ring” that the proviso’s

words “would have had to a skilled user of words at the

time, thinking about the same problem.” Frank H.

Easterbrook, The Role of Original Intent in Statutory

Construction, 11 Harv. J.L. & Pub. Pol’y 59, 61 (1988). If

there is one thing the nation was thinking about when

Congress enacted the proviso, it was wrong-house raids

like the one Petitioners suffered. E.g., Andrew H. Malcolm, Drug Raids Terrorize 2 Families—by Mistake,

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

When Congress undertook the “legislative endeavor” to waive sovereign immunity through the

FTCA, see Egbert v. Boule, 596 U.S. 482, 491 (2022), it

did not hinge the government’s liability on a violation of

constitutional rights—clearly established or otherwise.

And when Congress amended the FTCA to include the

law-enforcement proviso, it explicitly “pemit[ted] private damages recoveries for intentional torts committed

by federal law enforcement officers[.]” Carlson, 446 U.S.

at 33 (Rehnquist, J., dissenting) (rejecting extension of

Bivens). “Our constitutional structure does not permit

this Court to rewrite the statute that Congress has enacted.” National Ass’n of Mfrs. v. DOD, 583 U.S. 109, 124

(2018) (cleaned up).

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, and remand this case for

further proceedings.

Respectfully submitted on April 22, 2025,