any [other] circumstances.”[14] It suggested state law could be preempted, for instance, “in the case of a claim against a contractor directing air traffic at a military base or utilizing special standards to safeguard military traffic.”[15] But despite the United States’ assurance, these developments may make it more difficult for defense contractors to know whether and when their combat-support activities will be insulated from state law claims.The Supreme Court could take up this issue in another case. Though the United States urged denial of certiorari here, it has stated that this preemption question implicates “significant national interests” and “warrants [the Supreme] Court’s review in an appropriate case.”[16] Our lawyers will be monitoring how this area of the law continues to develop and are ready to assist companies navigating these standards.READ LESSFootnotes[1] Badilla v. Midwest Air Traffic Control Serv., Inc., 8 F.4th 105, 128 (2d Cir. 2021)[2] 487 U.S. 500 (1988).[3] 28 U.S.C. § 2680(j).[4] Midwest ATC, 8 F.4th at 127 (quoting Harris v. Kellogg Brown & Root Servs., Inc., 724 F.3d 458, 479 (3d Cir. 2013)). The Second Circuit reached this conclusion based on its review of Harris, In re KBR, Inc., Burn Pit Litigation, 744 F.3d 326 (4th Cir. 2014), Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009), and Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992).[5] Midwest ATC, 8 F.4th at 128.[6] Id. at 129-30.[7] Brief for the United States as Amicus Curiae at 17, Midwest Air Traffic Control Serv., Inc. v. Badilla, No. 21-867 (U.S. Apr. 17, 2023) (quoting 28 U.S.C. § 2680(j)).[8] Id. at 11.[9] Id. at 13.[10] Id.at 15.[11] Brief for the United States as Amicus Curiae at 19, KBR, Inc. v. Metzgar, No. 13-1241 (U.S. Dec. 16, 2014).[12] Supplemental Brief for the Petitioner at 8, Midwest Air Traffic Control Serv., Inc. v. Badilla, No. 21-867 (U.S. May 2, 2023) (emphasis and second omission in the original) (quoting Brief for the United States as Amicus Curiae at 14, Midwest ATC).[

The Federal Tort Claims Act bars [a]ny claim arising in a foreign country. 28 U.S.C. 2680(k). And the Torture Victim Protection Act of 1991, note following 28 U.S.C. 1350, cannot be used by an alien to sue a United States officer.

The Eleventh Circuit did so applying the same test it used under the Federal Tort Claims Act, which waives sovereign immunity from tort suits involving Federal agencies, subject to an exception for claims based on a federal employee’s performance of a “discretionary function.” See 28 U.S.C. §2680(a). Today, the Court reversed, holding that the TVA’s sue-and-be-sued clause is broad and does not contain any discretionary functions exception.

However, the FTCA expressly excludes from its scope claims for most intentional torts including claims for “interference with contract rights.” 28 U.S.C. § 2680(h). Although “interference with contract rights” is not defined under the FTCA, federal courts have broadly interpreted the exclusion.

But the FTCA also contains an “Exceptions” section, under which the provisions of Chapter 171 do not apply to certain categories of claims, including a claim based on the performance of a “discretionary function.” 28 U.S.C. § 2680. Walter Himmelreich, a federal prisoner, filed two lawsuits alleging that a severe beating he received from a fellow inmate was caused by prison officials’ negligence.

It then turned to the specifics of the exception. It recognized its application only to claims “arising out of the combatant activities of military or naval forces,” citing 28 U.S.C. § 2680(j), and the various tests employed by federal circuits to apply the exception as derived from the Supreme Court’s decision in Boyle v. United Technologies Corp., 487 U.S. 500 (1988).The court noted that the Boyle holding involves a three-step analysis to determine the propriety of federal preemption.

28 U.S.C. §2674.However, the FTCA explicitly retains sovereign immunity for “[a]ny claim arising in a foreign country.” 28 U.S.C. §2680(k). The Grosses made several statutory arguments for why the foreign-country exception to the FTCA should not apply.First, they argued that Gross’s injuries were the result of his work on a U.S. government project which was funded and overseen entirely from Washington, D.C.The Court rejected this argument, relying on the United States’ Supreme Court’s decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) which rejected this “headquarters analysis” which would “swallow the foreign country exception whole, certainly at the pleadings stage.”

Normally, Negative Job References in Federal Employment would be looked at as a claim pursuant under Title VII, but can they be looked at alternatively as an additional "injury" which is a result of retaliation caused by an initial injury that stemmed from a violation as to the exception in 28 USC 2680(h), which involved claims against federal employees who fit the criteria of " law enforcement proviso"? If so, can Negative Job References be considered a tort claim which is part and parcel of a possible "continuing tort claim" which could receive damages based upon tort law, rather than damages pertaining to employment law?

This statutory scheme provides that the FDIC owes a duty solely to depositors, creditors and the public at large, not to a bank or its former directors and officers.[3] In addition, federal court decisions have relied on the discretionary function exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(a), to bar certain affirmative defenses. In United States v. Gaubert[4], the Supreme Court reviewed the discretionary function exception to the FTCA and held that the myriad of actions a federal regulatory agency undertakes in supervising federally insured financial institutions are discretionary in nature and are sheltered from claims under the FTCA.

The court granted the motion as the FTCA’s waiver of sovereign immunity expressly excludes claims for libel and slander. See 28 U.S.C. § 2680(h). The Westfall Act (aka the Federal Employees Liability Reform and Tort Compensation Act of 1988) amended the Federal Tort Claims Act to make it the exclusive remedy for torts committed by federal employees acting within the scope of their employment.