Protecting the FTCA: Why Federal Employees Do Not Have Discretion to Violate the Constitution

by Sabrina Ruch*

The Federal Tort Claims Act (“FTCA”) is a limited waiver of sovereign immunity that provides a cause of action for individuals to recover for negligent or wrongful acts by federal employees within the scope of their employment. However, Congress provided for certain exceptions to this waiver, including the discretionary function exception, which shields federal employees from liability for claims arising out of actions taken in their discretion. This includes making a policy-based decision within the scope of their employment. Circuit courts are divided over whether a federal employee’s conduct can fall within the discretionary function exception when the plaintiff plausibly alleges that the employee’s actions violated the Constitution. The proper understanding of the discretionary function exception is that it does not shield employees from liability when their actions are alleged to be unconstitutional because federal employees do not have the discretion to violate the Constitution. To hold otherwise would be contrary to the plain meaning of discretion, the Supreme Court’s understanding of discretion in other contexts, and Congress’s intent when passing the FTCA and crafting its exceptions.

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The Federal Tort Claims Act (“FTCA”) is a “broad waiver of sovereign immunity” for claims of “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 [] acting within the scope of his office or employment.”¹ The doctrine of sovereign immunity states that the federal government “cannot be lawfully sued without its consent,” and thus the FTCA provides such consent.² In an effort to strike the right balance between liability for wrongful conduct and the government’s ability to fulfill necessary functions, Congress enacted several exceptions to the FTCA, including the discretionary function exception.³ The discretionary function exception shields federal employee conduct from liability for claims that arise out of actions taken in an employee’s “discretionary function,” i.e., actions that “involve[] an element of judgment or choice.”⁴ For example, an FBI agent’s decision pursuant to broad guidelines not to disclose information to local law enforcement would be within their discretionary function.⁵ To determine whether an action falls within an employee’s discretionary function, the Supreme Court applies a two-part test, referred to here as the Gaubert test.⁶ First, the action must be one that the federal employee had the choice to take.⁷ Second, the action must be subject to a policy analysis that is not meant to be “second-guess[ed]” by the courts.⁸

Whether constitutional violations can fall within a federal employee’s discretion is the source of a circuit split. The majority of circuits take the position that “the government lacks discretion to make unconstitutional policy choices.”⁹ A minority of circuits, however, have held that constitutional violations fall within an employee’s discretion and are thus shielded by the discretionary function exception.¹⁰ The majority position should be accepted for four reasons. First, this position is supported by the Gaubert test itself. Second, the plain meaning of discretion excludes unconstitutional actions. Third, the Supreme Court understands discretion to be subject to constitutional limits in similar contexts. Fourth and finally, Congress’s intent when passing the FTCA and its exceptions was not to shield employees taking unconstitutional actions from liability. The majority position, that constitutional violations are not protected by the discretionary function exception, is the best reading of the exception because, simply put, federal employees do not have the discretion to violate the Constitution.¹¹

First, a federal employee’s action which violates the Constitution cannot be within their discretionary function because it does not meet either prong of the Supreme Court’s Gaubert test. The first prong requires there be “an element of judgment or choice” in the employee’s action.¹² The Court specified that if an action violates a “federal statute, regulation, or policy specifically prescrib[ing] a course of action for an employee to follow,” then there is no discretion to take that action.¹³ When there is a law in place that directs an employee how to act, “the employee has no rightful option but to adhere to that directive.”¹⁴ The majority of circuit courts to interpret the discretionary function exception have held that this reasoning applies to the Constitution as well.¹⁵ The Constitution, according to the majority view, provides a clear limiting principle to employee discretion because it prescribes certain conduct.¹⁶ In other words, “conduct cannot be discretionary if it violates the Constitution.”¹⁷

The second prong of the Supreme Court’s Gaubert test is also not satisfied in cases where a plausible constitutional violation has been pled. This prong considers whether the employee’s action was rooted in a public policy analysis and the protection of one’s individual constitutional rights should not be subject to the whim of a federal employee’s balancing of policy considerations.¹⁸ In particular, Gaubert’s second prong “prevent[s] judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy.”¹⁹ In other contexts, the Supreme Court has determined that analyzing the constitutionality of an action is separate from judicially second-guessing the soundness of the policy involved in the action. For example, in the qualified immunity context, “when a court passes judgment on [a] municipality’s conduct in a § 1983 action, it does not seek to second-guess the ‘reasonableness’ of the city’s decision nor to interfere with the local government’s resolution of competing policy considerations.”²⁰ Likewise, the Supreme Court noted in Ex parte Young that “prevent[ing] [an officer] from doing that which he has no legal right to do is not an interference with the discretion of an officer.”²¹ While Ex parte Young was a suit for injunctive relief against an officer, and not for monetary damages against the sovereign under the FTCA, this example is relevant because the Court drew a clear distinction between deeming an action unconstitutional and hindering employee discretion to make policy choices.²² Determining the constitutionality of an action fulfills the Court’s role to “say what the law is” without overstepping into the policy roles of the other branches of government.²³ The discretionary function exception was not meant to shield every employee action from judicial review; it was only meant to shield actions rooted in policy decisions which are better left to the other branches of government.²⁴ Thus, constitutional violations fail both prongs of the Gaubert test because the Constitution does not afford federal employees the choice to violate its mandates and ruling an action a constitutional violation does not second-guess executive or legislative policy analyses.

Second, the plain meaning of the word discretion further confirms that discretion is cabined by existing legal limits, including the Constitution, and therefore discretionary decisions cannot include constitutional violations. It is well-settled that the plain meaning of a statute’s text should govern courts’ interpretation of that statute.²⁵ Webster’s dictionary defines discretion as the “power to choose or decide freely within certain legal bounds.”²⁶ Further, Black’s Law Dictionary defines discretion as being “regulated . . . by fixed principles.”²⁷ Thus, the plain meaning of discretion supports the position that federal employee discretion does not include the freedom to violate the Constitution with impunity.

Despite the clear plain meaning of discretion, the minority view grounds its position in the surrounding text of the discretionary function exception in the FTCA. The minority view argues that the text of the exception is “unambiguous and categorical” and covers all discretionary actions, even if those actions violate the Constitution.²⁸ This view rests on the part of the exception that shields discretionary choices even when a federal employee has abused their discretion.²⁹ The exception’s text does not consider the “‘degree’ of the abuse of discretion,” nor does it “carve[] out certain behavior from [the] exception.”³⁰ Thus, the minority argues that there is no textual support to exclude constitutional violations from the discretionary function exception.³¹ However, this textual argument fails to consider that the plain meaning of discretion itself places legal limits on what choices an employee can make.³² Thus, when using the word discretion in the statute, Congress accepted that federal employees only have the discretion to take lawful actions, not unlawful ones.

Third, the Supreme Court’s understanding of discretion in other contexts confirms that discretion cannot encompass constitutional violations. Although prosecutorial discretion has long been recognized as one of the broadest types of discretion in the American legal system, the Court has nonetheless held that prosecutorial discretion is “undoubtedly” limited by the Constitution.³³ The Court has also held that the discretion of local municipalities has constitutional limits.³⁴ The Supreme Court has acknowledged that discretion operates within the limits of a “statute, regulation, or policy.”³⁵ It would be “illogical” and contrary to the supremacy of the Constitution to find that federal employees could be liable for violations of an agency policy, but not for violations of the Constitution.³⁶ It therefore follows from the Supreme Court’s understanding of discretion that the Constitution places a meaningful limit on a federal employee’s scope of choice.

Fourth, the minority view that constitutional violations can fall within a federal employee’s discretion is contrary to Congress’s intent in passing the FTCA and the discretionary function exception. The purpose of the FTCA was to waive sovereign immunity when federal employees commit certain serious torts against individuals.³⁷ The minority view extends far beyond the intent of the statute—it insulates conduct that is “so egregious that it violates the more fundamental requirements of the Constitution.”³⁸ For example, in finding that discretionary decisions can include constitutional violations, the Eleventh Circuit shielded prison officials from FTCA liability after their decisions left an incarcerated person to be brutally assaulted by his cellmate, even if this was in violation of his Eighth Amendment rights.³⁹ Other serious tortious conduct has been shielded under the minority view, such as malicious prosecution.⁴⁰ Adopting the minority view thus risks insulating serious tortious conduct that the FTCA was meant to remedy and deter.

The minority view also undermines the purpose of the discretionary function exception itself. Congress created the discretionary function exception to “prevent [FTCA] claims from impairing the government’s legitimate exercise[] of policy discretion.”⁴¹ Committing constitutional violations, however, is not such a “legitimate exercise.”⁴² After adopting the minority position, the Seventh Circuit found conduct that led to malicious prosecution and intentional infliction of emotional distress to be a legitimate exercise of discretion despite allegations that the conduct violated the Constitution.⁴³ While the exception does intend to shield all abuses of discretion from liability, courts must be careful to distinguish between abuses of discretion and acting outside of one’s legal authority altogether.⁴⁴ Federal employees act outside of their legal authority when they violate the Constitution because the “[Constitution’s] dictates are absolute and imperative.”⁴⁵ Thus, the discretionary function exception was not meant to cover constitutional violations.

Proponents of the minority position argue instead that the majority misconstrues the purpose of the FTCA. The minority view suggests that excluding constitutional violations from the discretionary function exception would improperly turn the FTCA into a remedial scheme for constitutional, rather than tort, claims.⁴⁶ This is improper, according to the minority, because the FTCA was not meant to remedy constitutional claims “at all.”⁴⁷ The Seventh Circuit has found that FTCA plaintiffs claiming that tortious conduct also violated the Constitution should bring challenges pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,⁴⁸ instead of under the FTCA.⁴⁹ The Bivens remedy is a judicially-created cause of action for very limited cognizable constitutional claims against federal employees.⁵⁰ However, this argument fails to consider that Bivens is no longer an effective remedial scheme for constitutional violations because the Supreme Court has significantly limited its availability.⁵¹ Thus, despite the already limited recovery options for individuals harmed by the federal government, the minority understanding of the FTCA’s purpose would further limit the availability of the FTCA for recovery. Ultimately, finding that constitutional violations are within a federal employee’s discretion would shield severe tortious conduct from liability under the FTCA and reduce the chances of recovery for individuals.

The discretionary function exception was meant to shield some tortious conduct from liability, but the exception cannot be read so broadly as to swallow the FTCA altogether. The majority of circuits to address this issue have held that federal employees do not have discretion to violate the Constitution. This majority view should be upheld because it comports with the Gaubert test, the plain meaning of discretion, the Supreme Court’s understanding of discretion in other contexts, and Congress’s intent when it passed the FTCA.

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* Sabrina Ruch is a J.D. Candidate (2026) at New York University School of Law. This Contribution is a commentary on the problem at the 2026 American Bar Association National Appellate Advocacy Competition hosted by the ABA. One of the questions presented was whether the discretionary function exception, 28 U.S.C. § 2680(a), bars a tort action notwithstanding a plausible allegation that a government employee’s conduct violated the Constitution. This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. Berkovitz v. United States, 486 U.S. 531, 535 (1988) (quoting 28 U.S.C. § 1346(b)).

2. United States v. Lee, 106 U.S. 196, 204 (1882); Berkovitz, 486 U.S. at 535.

3. United States v. S. A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984) (“The discretionary function exception . . . marks the boundary between Congress’ willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit . . . .”).

4. Berkovitz, 486 U.S. at 536.

5. 28 U.S.C. § 2680(a); Gonzalez v. United States, 814 F.3d 1022, 1025 (9th Cir. 2016).

6. See United States v. Gaubert, 499 U.S. 315, 322–23 (1991) (describing the two-part test for the discretionary function exception as (1) “acts that ‘involve an element of judgment or choice,’” and (2) policy analyses that “the discretionary function exception was designed to shield.”) (quoting Berkovitz, 486 U.S. at 536 and Varig Airlines, 467 U.S. at 813).

7. Berkovitz, 486 U.S. at 536 (noting that “conduct cannot be discretionary unless it involves an element of judgment or choice.”).

8. Gaubert, 499 U.S. at 322–23 (quoting Berkovitz, 486 U.S. at 536).

9. Loumiet v. United States, 828 F.3d 935, 943–44 (D.C. Cir. 2016) (collecting cases that find that constitutional violations fall outside of a federal employee’s discretion).

10. Compare Shivers v. United States, 1 F.4th 924, 930 (11th Cir. 2021) (holding that there is no “extra-textual ‘constitutional-claims exclusion’” in the discretionary function exception) with Loumiet, 828 F.3d at 943 (holding that the discretionary function exception does not shield constitutional violations from liability).

11. See, e.g., Medina v. United States, 259 F.3d 220, 225 (4th Cir. 2001) (“[F]ederal officials do not possess discretion to violate constitutional rights or federal statutes.”).

12. Berkovitz, 486 U.S. at 536.

13. See Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at 536).

14. Berkovitz, 486 U.S. at 536.

15. See Loumiet, 828 F.3d at 943 (collecting cases and noting that “[a]t least seven circuits” have held that the discretionary function exception does not apply to constitutional violations).

16. See, e.g., Xi v. Haugen, 68 F.4th 824, 829 (3d Cir. 2023) (“[B]ecause the Government has no discretion to violate the Constitution, FTCA claims premised on conduct that is plausibly alleged to violate the Constitution may not be dismissed on the basis of the discretionary function exception.”); Loumiet, 828 F.3d at 944 (noting that “[a] constitutional limit on governmental power, no less than a federal statutory or regulatory one . . . circumscribes the government’s authority even on decisions that otherwise would fall within its lawful discretion.”).

17. See U.S. Fid. & Guard Co. v. United States, 837 F.2d 116, 120 (3d Cir. 1988).

18. See Gaubert, 499 U.S. at 323.

19. Berkovitz, 486 U.S. at 536–37 (quoting Varig Airlines, 467 U.S. at 814).

20. Owen v. Independence, 445 U.S. 622, 649 (1980).

21. Ex parte Young, 209 U.S. 123, 159 (1908).

22. See id. at 148, 159.

23. Marbury v. Madison, 5 U.S. 137, 177 (1803).

24. See Gaubert, 499 U.S. at 323.

25. See United States v. Ron Pair Enters., 489 U.S. 235, 240–41 (1989) (“[T]here generally is no need for a court to inquire beyond the plain language of the statute.”).

26. Discretion, Merriam-Webster, https://www.merriam-webster.com/dictionary/discretion (emphasis added).

27. Discretion, Black’s Law Dictionary, https://thelawdictionary.org/discretion/ (emphasis added).

28. See Shivers, 1 F.4th at 930.

29. 28 U.S.C. § 2860(a) (shielding discretionary conduct “whether or not the discretion involved be abused”); Shivers, 1 F.4th at 930 (emphasizing that abuses of discretion are shielded from liability).

30. See Shivers, 1 F.4th at 930.

31. See id. (noting that “Congress could have adopted language that carved out certain behavior” and highlighting that “Congress did not do so.”).

32. See Discretion, Black’s Law Dictionary, supra note 27 (“This discretion undoubtedly is to some extent regulated by usage, or, if the term is preferred, by fixed principles.”); Discretion, Merriam-Webster, supra note 26 (“[P]ower to choose or decide freely within certain legal bounds.”).

33. See Bordenkircher v. Hayes, 434 U.S. 357, 365 (1978).

34. See Owen, 445 U.S. at 649.

35. See Gaubert, 499 U.S. at 322.

36. See Loumiet, 828 F.3d at 944–45 (“Indeed, the absence of a limitation on the discretionary-function exception for constitutionally ultra vires conduct would yield an illogical result.”).

37. See Martin v. United States, 605 U.S. 395, 400–01 (2025).

38. See Loumiet, 828 F.3d at 944–45.

39. Shivers, 1 F.4th at 930–33.

40. Linders v. United States, 937 F.3d 1087, 1088–90 (7th Cir. 2019).

41. See Loumiet, 828 F.3d at 941.

42. See id. at 941, 943.

43. See Linders, 937 F.3d at 1088–90.

44. See Myers & Myers, Inc. v. U.S. Postal Serv., 527 F.2d 1252, 1261 (2d Cir. 1975) (“It is, of course, a tautology that a federal official cannot have discretion to behave unconstitutionally or outside the scope of his delegated authority.”).

45. Owen, 445 U.S. at 649; see also Loumiet, 828 F.3d at 944 (“A constitutional limit on governmental power, no less than a federal statutory or regulatory one . . . circumscribes the government’s authority even on decisions that otherwise would fall within its lawful discretion.”).

46. See Shivers, 1 F.4th at 930.

47. See id.

48. See generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

49. See Linders, 937 F.3d at 1090 (explaining that the remedy created in Bivens is the proper remedy for recovering for claims with constitutional elements).

50. See Egbert v. Boule, 596 U.S. 482, 490 (2022) (explaining that the Bivens remedy was created “under general principles of federal jurisdiction” to recover for some constitutional harms).

51. See Egbert, 596 U.S. at 491 (discussing the limited nature of the Bivens remedy).