Sovereign Immunity or: How the Federal Government Learned to Stop Worrying and Love the Discretionary Function Exception

Abstract

The doctrine of sovereign immunity generally bars suits against the federal government. The Federal Tort Claims Act, however, waives sovereign immunity for a broad class of tort claims against the United States. It contains several exceptions, including the discretionary function exception that precludes suit against the federal government if the underlying conduct involved individual judgment or choice. In 2021, in Shivers v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that the discretionary function exception to the Federal Tort Claims Act applies even where the plaintiff alleges that the conduct at issue violated the U.S. Constitution. The Eleventh Circuit agreed with the Seventh Circuit and declined to permit a constitutional claims exclusion. In contrast, the First, Eighth, Ninth, and D.C. Circuits have each held that the discretionary function exception does not shield the United States from liability where the conduct at issue allegedly violates the Constitution. This Comment argues that the minority approach is correct because sovereign immunity doctrine indicates that courts should read any exception narrowly in favor of the federal government.