88 F.4th 14
1st Cir.2023Background
- In Feb. 2013, Lt. Osvaldo Albarati was murdered at the MDC in Puerto Rico; Torres‑Estrada was a detainee and became an FBI suspect.
- Torres‑Estrada alleges repeated FBI tactics from 2013–2017: placement of jailhouse informants, warrantless custodial interrogation (while represented), invasive body search (rectal exam and x‑rays in June 2014), repeated SHU confinement, and placement in a "Two Hour Watch" that impeded counsel access.
- BOP records contained a lasting notation labeling Torres‑Estrada as involved in the murder; he administratively complained and later filed suit (Bivens and FTCA claims) in Jan. 2019.
- The district court dismissed the complaint: some FTCA claims were untimely (failure to exhaust within two years), other FTCA claims were barred by the discretionary‑function exception, and Bivens claims were time‑barred.
- On appeal, the First Circuit held the district court erred in broadly applying the discretionary‑function exception without assessing alleged constitutional violations, found some claims possibly timely under the continuing‑violation doctrine, and granted leave to amend and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FTCA discretionary‑function exception bars FTCA tort claims grounded in conduct that allegedly violated the Constitution | Limón‑era rule: unconstitutional conduct is not protected by the discretionary‑function exception; therefore FTCA claims alleging constitutional violations survive | Discretionary‑function exception should bar these FTCA claims; the qualified‑immunity “clearly established” standard should inform the analysis | Court: Discretionary‑function exception does not shield conduct that plausibly violates the Constitution; remand for district court to apply Limone analysis to determine if constitutional allegations negate the exception |
| Whether the government may import the qualified‑immunity "clearly established" requirement into the FTCA discretionary‑function analysis | Plaintiff: unconstitutional conduct need not be shown "clearly established" to avoid the discretionary‑function exception | Government: if employees get qualified immunity unless violation is clearly established, the United States should not be liable absent a clearly established violation | Court: Declined to import the "clearly established" requirement; Limone does not require it; Circuit agrees with Third Circuit rejecting that importation |
| Whether various FTCA and Bivens claims are time‑barred or saved by the continuing‑violation doctrine | Torres‑Estrada: many acts were part of an ongoing course of conduct (informants, SHU placements, record maintenance, Two Hour Watch), so at least some acts fall within limitations under the continuing‑violation doctrine | Government: many alleged acts were discrete and occurred outside the applicable filing windows (e.g., June 2014 body search); FTCA exhaustion deadline not met for pre‑Dec. 2015 acts | Court: Affirmed dismissal of discrete assault/battery claims relating to June 2014 search; vacated dismissal of intentional infliction of emotional distress and Bivens claims to allow the district court to evaluate the continuing‑violation theory on remand |
| Whether leave to amend should be granted | Torres‑Estrada: new information discovered in litigation (e.g., inmate profile note) and other facts justify amendment and exhaustion allegations; requested leave to add claims/facts | Government: did not oppose leave to amend in motion practice; asserted futility below on timeliness grounds | Court: Granted leave to amend in the interest of justice given new information, first attempt to amend, and lack of government opposition |
Key Cases Cited
- Limone v. United States, 579 F.3d 79 (1st Cir. 2009) (unconstitutional conduct falls outside FTCA discretionary‑function exception)
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (U.S. 1971) (implied damages remedy against federal agents for certain constitutional violations)
- Berkovitz v. United States, 486 U.S. 531 (U.S. 1988) (discretionary‑function exception shields government when conduct involves policy judgment)
- Thames Shipyard & Repair Co. v. United States, 350 F.3d 247 (1st Cir. 2003) (federal officials lack discretion to violate constitutional rights)
- Loumiet v. United States, 828 F.3d 935 (D.C. Cir. 2016) (remand to district court to decide in first instance whether alleged conduct exceeded constitutional authority for purposes of discretionary‑function immunity)
- Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (U.S. 2002) (continuing‑violation doctrine applies where a series of related acts constitute one unlawful practice)
- Xi v. Haugen, 68 F.4th 824 (3d Cir. 2023) (rejected application of the "clearly established" requirement to FTCA discretionary‑function analysis)