Sean Gaskin, et al. v. Stephen May, et al.

Seeking damages for malicious prosecution and false imprisonment in Barbados, petitioners invoked ancient causes of action for which federal officers were historically not immune. In dismissing the suit under sovereign immunity, the lower courts relied on two liberalizing 20th-century statutes: the Federal Tort Claims Act of 1946 (FTCA) and the District of Columbia Court Reorganization Act of 1970 (DCCRA). First, under 28 U.S.C. § 2679(b)(1) and United States v. Smith, 499 U.S. 160 (1991), the lower courts found respondents immune from suit. As Simmons v. Himmelreich, 578 U.S. 621, 627-28 (2016), recognized, however, the Smith line of cases fails to recognize that the entire FTCA—including § 2679(b)(1)’s exclusivity clause from the FTCA’s 1988 “Westfall” amendment— does not apply when one of FTCA’s exemptions apply. The FTCA neither authorizes nor bars suit here. Second, under its 1801 enabling legislation, the District Court for the District of Columbia had common-law powers, including the power to create torts and causes of action, even against federal actors. In devolving local authority to the District’s state-like court system, the DCCRA neither transferred that historic power vis-à-vis federal actors nor repealed it sub silentio, leaving the District Court able to create torts and causes of action against federal agents. The questions presented are:

1. Whether FTCA’s 1988 “Westfall” amendment created immunity that did not previously exist, thus displacing non-FTCA actions that do not rely on the FTCA or on its waiver of sovereign immunity.

2. Whether DCCRA repealed the District Court’s power to create federal torts and causes of action.