Mackie L. Shivers, Jr. v. United States, et al.

The Federal Tort Claims Act, 28 U.S.C. 1346(b)(1), includes a “discretionary function exception,” 28 U.S.C. 2680(a), that immunizes the United States from state tort liability based on its employees’ performance of discretionary functions. The First, Eighth, Ninth, and D.C. Circuits have squarely held that the exception does not apply when federal employees’ conduct violates the Constitution. Below, a divided panel of the Eleventh Circuit joined the Seventh Circuit in going the other way, holding in a reported decision that the exception applies, and thus bars suit against the United States, even when the challenged conduct is unconstitutional. The question presented is: Whether the discretionary function exception to the Federal Tort Claims Act immunizes the United States from tort liability for acts taken by its employees in violation of the Constitution.