Major Victory in First Circuit Court of Appeals – Discretionary Function Exception Not Applied in Constitutional Tort/FTCA Case!

Ezekiel (“Zeke”) Cortez and I, along with our appellate co-counsel, Annaleigh Curtis and Tom Saunders of Wilmer, Cutler, Pickering, Hale, and Dorr LLP, scored a significant appellate victory for our client with a published decision in the First Circuit Court of Appeals. Torres-Estrada v. Cases (Case No. 21-1521) 2023 WL 8446470. Zeke and I represent Elvin Torres-Estrada, a federal inmate on drug charges, who alleges Bivens and Federal Tort Claims Act (FTCA) claims against the FBI and individual FBI agents for alleged long-continuing violations of his constitutional and statutory rights. Torres-Estrada alleges that the FBI in Puerto Rico, through various tortious acts and constitutional violations, sought to elicit a false confession and frame him for a murder he did not commit. We commenced the action in the Southern District of California. Upon the government’s motion, the case was transferred to the U.S. District Court in Puerto Rico. The government moved to dismiss arguing that Torres-Estrada’s FTCA claims were barred by the discretionary function exception to the FTCA and that all his claims were otherwise time-barred. The District Court dismissed Torres-Estrada’s claims without leave to amend. We appealed.

The Court of Appeals reversed, holding the District Court failed to consider whether the complaint and Torres-Estrada’s FTCA claims adequately alleged unconstitutional conduct to which the discretionary function exception to the FTCA does not apply. The Court flatly rejected the government’s efforts to impose a new standard on plaintiffs to allege facts to “clearly establish” a constitutional violation to avoid application of the exception.  As to the “time-barred” claims argument, the Court of Appeals applied the “continuing violation” doctrine to reverse the District Court’s dismissal of at least one of Torres-Estrada’s currently alleged torts claims. Significantly, and in light of relevant new evidence discovered during the proceedings, the Court of Appeals granted us leave to amend the complaint.

This is a major victory for our client and for other plaintiffs bringing claims against the government for constitutional violations. It was a team effort, but I want to commend Annaleigh and Tom for their appellate work on the case and, particularly, Annaleigh for her fine oral argument before the Court of Appeals. Zeke and I are now back in the trial court where we will amend consistent with the appellate ruling, proceed to discovery and depositions, and prepare this matter for a trial in Puerto Rico on behalf of our client. Back in the trial court, the battle continues!

This appeal is also a bit of  a “blast from the past” for me. In my first appellate appearance before the Ninth Circuit, as a young lawyer in the 80’s, I won an appeal in a published decision – Baker v. United States (1987) 817 F.2d 560. Baker involved application of the discretionary function exception to the FTCA as well, there in the context of claims arising from the government’s regulation of polio vaccines. Baker was also one of the cases that set up a conflict in the circuits about application of the exception, which conflict was resolved by the U.S. Supreme Court in Berkovitz v. United States (1988) 486 U.S. 531. Bringing it all back around for me, Berkovitz is cited in the Torres-Estrada decision. Pretty cool.