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No. 05-529

In the Supreme Court of the United States

RICARDO ANTONIO WELCH, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
MARK B. STERN
DANA J. MARTIN
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680, excludes from its waiver of sovereign immunity, inter alia, "[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid." 28 U.S.C. 2680(a). The FTCA also excludes from its waiver claims arising out of specified intentional torts including false imprisonment, but makes this intentional tort exception inapplicable to certain intentional tort claims with respect to the "acts or omissions of investigative or law enforcement officers of the United States Government." 28 U.S.C. 2680(h). The questions pre sented are:

1. Whether the due care exception set forth in 28 U.S.C. 2680(a) bars all tort actions against the United States when a government actor follows the dictates of a mandatory statute, regardless of whether the statute is subsequently declared unconstitutional as applied.

2. Whether an FTCA claim arising from an allegedly false imprisonment by a federal law enforce ment officer is subject to the due care exception set forth in 28 U.S.C. 2680(a).

In the Supreme Court of the United States

No. 05-529

RICARDO ANTONIO WELCH, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-12a) is reported at 409 F.3d 646. The order of the district court (Pet. App. 13a-21a) is reported at 316 F. Supp. 2d 252.

JURISDICTION

The judgment of the court of appeals was entered on May 31, 2005. A petition for rehearing was denied on July 26, 2005 (Pet. App. 22a-23a). The petition for a writ of certiorari was filed on October 24, 2005. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Enacted in 1946, the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2671-2680, generally waives the sovereign immunity of the United States with re spect to torts of federal employees, acting within the scope of their employment, under circumstances where a private individual would be liable. Certain exceptions to the FTCA's waiver of sovereign immunity, and limita tions on the substantive scope of the United States' lia bility, are set forth in Section 2680. See 28 U.S.C. 2680(a)-(n); 28 U.S.C. 1346(b)(1) (incorporating "the provisions of chapter 171," i.e., 28 U.S.C. 2671-2680). The two exceptions at issue in this case are the due care exception in Section 2680(a) and the intentional tort ex ception in Section 2680(h).

The due care exception provides that the FTCA is not applicable to "[a]ny claim based upon an act or omis sion of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid." 28 U.S.C. 2680(a). The intentional tort exception generally pro vides that the FTCA does not apply to "[a]ny claim aris ing out of assault, battery, false imprisonment, false ar rest, malicious prosecution, abuse of process, libel, slan der, misrepresentation, deceit, or interference with con tract rights." 28 U.S.C. 2680(h). In 1974, however, Con gress added an exception to the intentional tort excep tion, known as the "law enforcement proviso." See Act of Mar. 16, 1974, Pub. L. No. 93-253, § 2, 88 Stat. 50. Under that proviso, with regard to the acts or omissions of federal investigative or law enforcement officers, "the provisions of this chapter [i.e., 28 U.S.C. 2671-2680] and section 1346(b) of this title shall apply to any claim aris ing * * * out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." 28 U.S.C. 2680(h).

2. Petitioner Ricardo Welch is a citizen of Panama who has been a permanent legal resident of the United States since he was ten years old. Pet. App. 2a. In 1994, petitioner pleaded guilty to several state felonies, in cluding assault and weapons charges, and he was sen tenced to five years in prison. Id. at 3a. Petitioner was released in October 1996 after serving three years in a Maryland state correctional facility. Ibid.

In August 1997, an immigration judge ordered peti tioner deported to Panama pursuant to 8 U.S.C. 1227(a)(2)(A)(iii), which authorizes deportation of an alien who is convicted of an "aggravated felony." Pet. App. 3a. In October 1998, after the Board of Immigra tion Appeals denied petitioner's appeal and the removal order thereby became final, the Department of Justice (DOJ) took petitioner into custody pending his deporta tion. Ibid; see 8 U.S.C. 1231(a) (providing for post-final- order detention pending deportation).1

On April 22, 1999, while petitioner remained in de tention, the state charges for which he had pleaded guilty were vacated on collateral review, and he pleaded guilty instead to several misdemeanor charges, includ ing one charge of illegally wearing or carrying a hand gun. Pet. App. 4a. DOJ subsequently moved to reopen petitioner's removal proceedings on the ground that, although the vacated felony charges no longer supported deportation, he was deportable as a result of his new plea agreement pursuant to 8 U.S.C. 1227(a)(2)(C), which authorizes deportation for unlawful possession of a firearm. Pet. App. 4a. On October 28, 1999, the Board of Immigration Appeals granted DOJ's motion to reopen the deportation proceedings. Ibid.

Meanwhile, because petitioner was now back in re moval proceedings, DOJ detained petitioner "based upon the Immigration and [Nationality] Act's mandate of such detention pending a final removal determina tion." Pet. App. 4a (citing 8 U.S.C. 1226(c)). Section 1226(c) requires, in relevant part, that "[t]he Attorney General shall take into custody any alien who * * * is deportable by reason of having committed any offense covered in section 1227(a)(2) * * *(C) * * * of this title." 8 U.S.C. 1226(c)(1) (emphasis added). The Attorney General may release an alien taken into custody under Section 1226(c)(1) "only if the Attorney General decides pursuant to section 3521 of Title 18 that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an im mediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney Gen eral that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." 8 U.S.C. 1226(c)(2) (empha ses added).

On June 6, 2000, in a separate proceeding, the United States District Court for the District of Maryland granted petitioner's petition, pursuant to 28 U.S.C. 2241, for a writ of habeas corpus. See Welch v. Reno, 101 F. Supp. 2d 347 (D. Md. 2000), aff'd, 293 F.3d 213 (4th Cir. 2002). The district court held that petitioner's manda tory detention under 8 U.S.C. 1226(c) violated what it found to be petitioner's substantive due process right to receive a bail hearing, and it ordered the Immigration and Naturalization Service (INS) to provide petitioner with a bail hearing before an immigration judge to de termine his flight risk and threat to the community. Id. at 356. The immigration judge thereafter conducted a bail hearing and ordered petitioner released. Pet. App. 4a.

The Fourth Circuit affirmed the district court's deci sion in petitioner's habeas case. Although the Fourth Circuit rejected petitioner's facial challenge to 8 U.S.C. 1226(c), it held that the provision was unconstitutional as applied to petitioner. Welch v. Ashcroft, 293 F.3d 213, 223-227 (4th Cir. 2002). In so holding, however, the court of appeals observed that petitioner's "14-month detention without a bond hearing did not contravene the dictates of § 236(c)." Id. at 228. In a separate case, this Court subsequently rejected a constitutional challenge to 8 U.S.C. 1226(c), holding that "Congress, justifiably concerned that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings in large numbers, may re quire that persons * * * be detained for the brief period necessary for their removal proceedings." Demore v. Kim, 538 U.S. 510, 513 (2003).

On July 15, 2002, an immigration judge granted peti tioner's application for the discretionary relief of cancel lation of removal, and the INS did not appeal, effectively ending the threat of deportation. Pet. App. 5a.

3. On June 4, 2002, petitioner presented an adminis trative claim to the INS, seeking damages for his alleg edly unlawful imprisonment from April 22, 1999, until June 7, 2000. Pet. App. 5a. On April 23, 2003, peti tioner's administrative claim was denied. Ibid.

On October 15, 2003, petitioner filed a complaint against the United States under the FTCA, alleging false imprisonment. Pet. App. 5a. The United States moved to dismiss for lack of subject matter jurisdiction because petitioner failed to present a written claim to the appropriate federal agency within two years after his alleged FTCA claim accrued, see 28 U.S.C. 2401(b), and because his claim was barred by the FTCA's due care exception, 28 U.S.C. 2680(a). Pet. App. 5a-7a, 14a.

The district court granted the motion to dismiss. Pet. App. 13a-21a. The court held that the due care ex ception barred petitioner's claim for money damages. The court concluded that, because petitioner "has al leged nothing more than the dutiful execution of a man datory federal statute, the FTCA makes no waiver of sovereign immunity with respect to his claim." Id. at 20a. Given that holding, the district court did not decide whether petitioner had presented his claim within two years of its accrual. Id. at 14a.

The court of appeals affirmed. Pet. App. 1a-12a. The court reasoned that the text of 8 U.S.C. 1226(c)(1)(B) "prescribes a course of action to be followed by officers of the United States" and that "an individual officer can not deviate from its enforcement." Pet. App. 9a. Be cause petitioner made no allegation that the officers car ried out the mandate of Section 1226(c)(1)(B) "in an in appropriate manner, or in any way deviated from the statute's requirements," the court concluded that "it cannot be said that the officers acted with anything other than due care." Id. at 9a-10a. The court thus held that the officers' conduct fell squarely within the due care exception and that the United States had not waived its sovereign immunity with respect to peti tioner's claim for money damages. Ibid. That was so, the court of appeals concluded, even though it had held in petitioner's habeas proceeding that Sec tion 1226(c)(1)(B) was unconstitutional as applied to pe titioner, because the due care exception expressly ap plies "whether or not such statute or regulation be valid." Id. at 10a (quoting 28 U.S.C. 2680(a)).

The court of appeals also rejected petitioner's con tention that the law enforcement proviso of 28 U.S.C. 2680(h) rendered the due care exception inapplicable to claims based upon intentional torts by law enforcement officers. Pet. App. 7a-8a. The court held that when Con gress amended Section 2680(h) in 1974 to permit certain intentional tort claims based upon the conduct of law enforcement officers, "it knew the effect of § 2680(a)" and "the exceptions to the Act already in existence were intended to remain in effect." Id. at 8a.

ARGUMENT

The judgment of the court of appeals is correct and does not conflict with any decision of this Court or that of any other court of appeals. The petition for a writ of certiorari should be denied.

1. As the courts below concluded, the plain text of the FTCA's due care exception bars petitioner's claim. As noted, that provision excludes from the United States' waiver of its sovereign immunity "[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid." 28 U.S.C. 2680(a).

Petitioner's claim falls squarely within this excep tion. His false imprisonment claim is based on his de tention by federal officers, without the opportunity for a bail hearing, pending the resolution of his removal proceedings. But the federal officers who detained peti tioner were executing the terms of a federal statute, 8 U.S.C. 1226(c), that mandated that they detain peti tioner without a bail hearing. Section 1226(c)(1)(B) pro vides that the "Attorney General shall take into custody any alien who * * * is deportable by reason of having committed an offense covered in section 1227(a)(2) * * * (C)," which authorizes deportation for unlawful posses sion of a firearm. 8 U.S.C. 1226(c)(1)(B) (emphasis added). The statute further provides that the Attorney General may release an alien taken into custody only under certain conditions that do not apply-and peti tioner does not contend apply-to petitioner. See 8 U.S.C. 1226(c)(2). As the Fourth Circuit recognized on appeal in petitioner's habeas case, Section 1226(c) "cate gorically bars the Attorney General from 'releas[ing] from custody' any alien convicted of an aggravated fel ony or firearm offense who is not in the federal witness protection program." Welch, 293 F.3d at 217. Thus, as the court of appeals held here, petitioner's detention without a bail hearing was "statutorily required," and the federal officers had no discretion to deviate from that statutory mandate. Pet. App. 9a-10a.

Moreover, the federal officers executed their statuto rily prescribed obligation to detain petitioner "with due care" under 28 U.S.C. 2680(a). Indeed, petitioner does not contend that the officers failed to comply with the terms of the statute. Pet. App. 9a-10a; see Welch, 293 F.3d at 228 (noting, in petitioner's habeas case, that his detention "did not contravene the dictates of § 236(c)"). Rather, petitioner contends that the officers failed to act with due care because, even though the officers followed the statutory mandate, the detention was "outside the bounds of acceptable constitutional conduct." Pet. 20.

As the court of appeals concluded (Pet. App. 10a- 11a), the plain text of the statute forecloses that argu ment. The due care exception expressly applies "whether or not" the statute the federal officers are exe cuting is "valid." 28 U.S.C. 2680(a). By its terms, this provision expressly retains the United States' sovereign immunity as to claims for money damages that are based upon acts or omissions of federal officers who are faith fully performing their obligations in accordance with federal statutes or regulations, even if those statutes or regulations are subsequently found to be invalid. Ac cordingly, the fact that the Fourth Circuit held, subse quent to petitioner's detention, that Section 1226(c) was unconstitutional (i.e., invalid) as applied to petitioner cannot support petitioner's FTCA claim. Although peti tioner asserts that courts "have struggled with when and how to apply" the due care exception, Pet. 19, he cites no case in which a court's application of the due care exception conflicts with the decision below.2

Indeed, if petitioner's reading of the due care excep tion were correct, challenges to the constitutionality of statutes could be brought by way of an FTCA action.3 But, as this Court has made clear, the due care excep tion "bars tests by tort action of the legality of statutes and regulations." Dalehite v. United States, 346 U.S. 15, 33 (1953); see also United States v. Gaubert, 499 U.S. 315, 336 (1991) (Scalia, J., concurring) (noting that the Court has construed the due care exception "to mean that regulations '[can]not be attacked by claimants un der the Act'") (quoting Dalehite, 346 U.S. at 42); H.R. Rep. No. 2245, 77th Cong., 2d Sess. 10 (1942) (explaining that it is not "desirable or intended that the constitu tionality of legislation, or the legality of a rule or regula tion should be tested through the medium of a damage suit for tort").

In effect, petitioner is arguing for an interpretation of the FTCA under which, for the United States to avoid tort liability, federal officers would have to substitute their judgment for that of Congress, and violate the re quirements of binding federal statutes and regulations, whenever they believe those requirements might be un constitutional as applied to a given individual. Nothing in the FTCA supports such an outcome, nor is there any reason to believe that Congress intended federal officers in the field to second-guess its clear directives. Cf. Cheek v. United States, 498 U.S. 192, 206 (1991) (con cluding that Congress did not contemplate that a tax payer who believes the tax laws are unconstitutional "could ignore the duties imposed upon him" and refuse to pay his taxes). Petitioner was afforded an opportu nity to challenge the constitutionality of Section 1226(c), and he successfully obtained judicial relief and thereby secured his release. But the text of the FTCA forecloses his attempt to obtain money damages for the actions of Executive Branch officers who were complying with their obligation faithfully to execute laws enacted by Congress.4

2. a. The court of appeals likewise correctly con cluded that the law enforcement proviso of 28 U.S.C. 2680(h) does not render inapplicable the due care excep tion of 28 U.S.C. 2680(a). Indeed, the plain text and structure of the FTCA preclude petitioner's interpreta tion of the proviso. When Congress enacted the law en forcement proviso in 1974, it placed the proviso within the intentional tort exception, Section 2680(h).5 Al though provisos sometimes have a broader import, it is customary to use a proviso to refer only to things cov ered by the preceding clause. See United States v. Mor row, 266 U.S. 531, 535 (1925) ("[T]he presumption is that, in accordance with its primary purpose, [a proviso] refers only to the provision to which it is attached."); 82 C.J.S. Statutes § 370, at 494 (1999) ("The operation of a proviso usually is confined to the clause or distinct por tion of the enactment which immediately precedes it, or to which it pertains, or is attached.") (footnotes omitted); see also Alaska v. United States, 125 S. Ct. 2137, 2159 (2005), judgment, 2006 WL 152590 (entered Jan. 23, 2006). Here, the text and structure of Section 2680 strongly reinforce the conclusion that the proviso has the customary scope of modifying only the preceding clause.

Significantly, Congress did not make the law enforce ment proviso an exception to any of the other exceptions that are contained in Section 2680, such as the due care exception, which it reasonably could have done if it had intended to modify those preexisting exceptions as well. Moreover, the text of the proviso relates only to the pre ceding clause of subsection (h) and, referring specifically to some (but not all) of the intentional torts excepted in that prior clause, negates the prior clause's application in certain defined instances. See 28 U.S.C. 2680(h). And finally, the proviso expressly states that all provisions of "this chapter"-which includes the due care exception in Section 2680(a)-shall apply to claims brought under the proviso. 28 U.S.C. 2680(h). In short, given its text and placement in the statute, the law enforcement proviso is properly read as an exception only to the first clause of Section 2680(h)-the clause excepting certain inten tional torts from the FTCA's coverage.

To read the law enforcement proviso more broadly, as a limitation not only upon the intentional tort excep tion but also upon the other Section 2680 exceptions, would allow tort suits against the United States that Congress plainly intended to bar. For example, there is nothing in the language or structure of the law enforce ment proviso that suggests Congress intended to permit any intentional tort suits with respect to acts or omis sions of law enforcement officers for claims arising in a foreign country. Such a claim, even if it fell within one of the specified intentional tort claims permitted by the law enforcement proviso, would nevertheless be barred by Section 2680(k), which prohibits all tort claims "aris ing in a foreign country." Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 699-712 (2004) (holding that foreign coun try exception barred FTCA claim for false arrest); cf. also Gasho v. United States, 39 F.3d 1420, 1433-1434 (9th Cir. 1994) (holding that conduct falling within the law enforcement proviso of Section 2680(h) is not ex empt from the "detention of goods" exception to the FTCA set forth in Section 2680(c)), cert. denied, 515 U.S. 1144 (1995); Gray v. Bell, 712 F.2d 490, 507-508 (D.C. Cir. 1983) (holding that conduct falling within the law enforcement proviso of Section 2680(h) is not ex empt from the discretionary function exception to the FTCA), cert. denied, 465 U.S. 1100 (1984); Medina v. United States, 259 F.3d 220, 225 (4th Cir. 2001) (same).

Moreover, contrary to petitioner's assertion (Pet. 16- 18), reading the law enforcement proviso as an exception only to the intentional tort exception of Section 2680(h) does not render the law enforcement proviso meaning less. Rather, as petitioner appears to recognize (Pet. 18), it simply means that some claims that fall within the law enforcement proviso will nevertheless be barred by some other provision of the FTCA.

b. Petitioner cites no court of appeals decision that conflicts with the decision below. Indeed, petitioner cites no other decision by any other court of appeals that even addresses the question presented here: whether the due care exception of Section 2680(a) applies if the law enforcement proviso of Section 2680(h) also applies. To the contrary, petitioner candidly acknowledges that "the decision below is the first case to analyze the law enforcement proviso's interplay with § 2680(a)'s due care provision." Pet. 8-9 (emphasis added).

Petitioner nevertheless seeks this Court's review based on an asserted conflict (Pet. 9-15) among the courts of appeals as to whether the discretionary func tion exception of Section 2680(a) applies where the law enforcement proviso of Section 2680(h) also applies. Even if this Court was inclined to review the interplay between the discretionary function exception and the law enforcement proviso, this case does not present that question. The due care and discretionary function ex ceptions, while set forth in the same subsection, pertain to different types of conduct. See 28 U.S.C. 2680(a). As explained above, the due care exception applies when a federal employee is executing a federal statute or regu lation. The discretionary function exception, by con trast, applies when a federal employee is acting pursu ant to discretion conferred upon him or her, such that no mandatory federal statute, regulation, or policy pre scribes a specific course of action. E.g., Berkovitz v. United States, 486 U.S. 531, 536 (1988) (discretionary function exception does not apply where mandatory and specific statutes or regulations leave no "element of judgment or choice" such that "[t]he employee has no rightful option but to adhere to the directive").

More importantly, the reasoning in the cases upon which petitioner relies as purportedly in conflict with the decision below turns on the nature of the discretion ary function exception. For example, in refusing to hold that the discretionary-function hurdle must be met in all cases, the Fifth Circuit in Sutton v. United States, 819 F.2d 1289 (5th Cir. 1987), applied this Court's decision in United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813 (1984), regarding the scope of the discretionary function excep tion. See Sutton, 819 F.2d at 1294, 1298. Moreover the Sutton court relied upon its concern that the discretion ary function exception could "result in judicial repeal of the law enforcement proviso" with respect to malicious prosecution cases, which often involve discretionary acts and for which the Fifth Circuit believed Congress in tended to allow an FTCA claim. Id. at 1295; contra Gray, 712 F.2d at 507 (finding "no serious incongruity between" the immunity afforded under the discretionary function exception and the waiver of immunity set forth in the law enforcement proviso). But the Sutton court's reasoning, whatever its merit in the context of the dis cretionary function exception, has no application with respect to the due care exception, which is triggered not by the exercise of discretion but by the execution of a federal statute or regulation.6

But even if this were a case involving the interplay between the discretionary function exception and the law enforcement proviso, further review would be un warranted. Although there is some disagreement in reasoning among the circuits as to the interrelationship of those two FTCA provisions, that disagreement does not rise to the level of a conflict warranting review by this Court at this time.

The D.C. Circuit decision cited by petitioner is fully in accord with the rule in the Fourth Circuit, and thus presents no conflict. See Pet. App. 8a.7 Likewise, the decisions of the Second and Third Circuits cited by peti tioner do not establish a conflict. The Second Circuit, by petitioner's own characterization, merely "intimated" in Caban v. United States, 671 F.2d 1230 (1982), "that § 2680(a) should not bar a valid § 2680(h) claim." Pet. 13. And, as petitioner also recognizes, the Third Circuit in Pooler v. United States, 787 F.2d 868, cert. denied, 479 U.S. 849 (1986), "did not specifically answer whether § 2680(a)'s discretionary function exception presents a hurdle to § 2680(h) claims generally." Pet. 15. Rather, the Second Circuit held in Caban that the alleged acts did not fall within the discretionary function exception, see 671 F.2d at 1233, and the Third Circuit held in Pooler that the claims before it did not fall within the terms of the law enforcement proviso, see 787 F.2d at 872. Finally, although the Fifth Circuit's decision in Sutton, which was rendered more than 18 years ago, contains reasoning that is at odds with the approach taken by the Fourth and D.C. Circuits, the Fifth Circuit did not purport to "declare categorically * * * the cir cumstances in which either the discretionary function exception or the law enforcement proviso governs to the exclusion of the other." Sutton, 819 F.2d at 1298.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
PETER D. KEISLER
Assistant Attorney General
MARK B. STERN
DANA J. MARTIN
Attorneys

JANUARY 2006

1 This period of detention is not at issue in this Court.

2 There is no merit to petitioner's suggestion (Pet. 21-22) that application of the due care exception to the enforcement of an unconstitutional statute conflicts with certain decisions holding that the discretionary function exception does not apply to unconstitutional conduct. Those decisions are based upon the view that "[f]ederal officials do not possess discretion to violate constitutional rights or federal statutes." Medina v. United States, 259 F.3d 220, 225 (4th Cir. 2001) (quoting United States Fid. & Guar. Co. v. United States, 837 F.2d 116, 120 (3d Cir.), cert. denied, 487 U.S. 1235 (1988)). Whatever the merit or limits of that principle, it has no application to the non- discretionary conduct at issue in this case or to the distinct due care exception in Section 2680(a), which applies whether or not the statute pursuant to which the officer acted is unconstitutional.

3 As petitioner notes (Pet. 26-27), he first challenged the constitutionality of Section 1226(c) through a petition for a writ of habeas corpus. At bottom, however, as the court of appeals recognized, petitioner's complaint in this FTCA action is "with the statute itself." Pet. App. 10a.

4 As the United States suggested in the district court (but did not press at this stage of the proceedings), see, e.g., C.A. App. 56, 115, there is a substantial question whether the Fourth Circuit's holding in petitioner's habeas case that Section 1226(c) was unconstitutional as applied to petitioner survives this Court's subsequent decision in Demore. As noted above, Demore upheld Section 1226(c) against constitutional challenge. 538 U.S. at 513. Although the court below stated without analysis that its decision in petitioner's habeas case "remains the final authoritative ruling" with respect to this case, Pet. App. 2a n.1, this Court's intervening decision in Demore represents a change in the controlling law such that neither preclusion principles nor the "law of the case" doctrine bars reconsideration of the earlier decision in the habeas case in this new, separate action for money damages. See, e.g., Commissioner v. Sunnen, 333 U.S. 591, 600 (1948); Agostini v. Felton, 521 U.S. 203, 236 (1997).

Moreover, although the United States cited the Fourth Circuit's decision in petitioner's habeas case in its brief in Demore as illustrating that "exceptional circumstances that present special due process concerns can be addressed on a case-by-case basis," Gov't Br. at 48-49, Demore, supra (No. 01-1491), the United States did not state (contrary to petitioner's suggestion, see Pet. 4) that petitioner's as-applied challenge was a meritorious one. Indeed, the United States criticized the approach endorsed by two of the members of the Fourth Circuit panel-under which there would be a rebuttable presumption that detention could not last beyond six months-as "lack[ing] a specific foundation in the text or history of Section 1226(c)." Gov't Br. at 48, Demore, supra. Furthermore, to the extent an as-applied challenge would lie under Demore in truly exceptional cases, it would be necessary for the alien to show a significant departure from the time that reasonably would be expected to conduct the hearings and appeals that were called for in the particular case, and to exclude from consideration any delays attributable to the alien. The Fourth Circuit did not conduct any such analysis in its decision on the habeas appeal.

5 Section 2680(h) excepts from the FTCA's provisions: "Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution." 28 U.S.C. 2680(h).

6 To be sure, the court below saw no reason for treating the due care exception differently than the discretionary function exception, see Pet. App. 8a, but that does not mean that other circuits would apply their different reasoning with respect to the discretionary function exception to a due-care case such as this one.

7 Compare Gray, 712 F.2d at 507 ("We * * * reject the contention that intentional tort claims based on the acts of 'investigative or law enforcement officer[s]' may never come within the purview of the discretionary function exception to section 2680(a)") with Medina, 259 F.3d at 225 ("[W]e are convinced that the D.C. Circuit resolved this question correctly in its decision in Gray."). Accord Gasho, 39 F.3d at 1433, 1435-1436.