Originally published at the Cato Institute Nov 2, 2020 by Ilya Shapiro and William Yeatman
To an unfortunate extent, the modern administrative state has expanded into criminal law enforcement. Many federal regulatory statutes—including those governing antitrust, securities, and the environment—authorize agencies to pursue both civil and criminal penalties. Thus, more than 300,000 federal regulations have been criminalized.
William Huntress became ensnared in such a “hybrid” civil‐criminal regulatory regime. He alleges that the U.S. Environmental Protection Agency (EPA) brought felony criminal charges against him in order to increase the government’s leverage in a regulatory dispute over the reach of the Clean Water Act. For almost two decades, this controversy has consumed Mr. Huntress’s life, including more than four years of living as an accused felon. All along, he has maintained that the government has no jurisdiction over the putative “wetlands” on his property—seasonal puddles, really—and that he’s being bullied by an overbearing bureaucracy.
After the government’s felony charges against him were dismissed, Mr. Huntress decided to push back. He filed a lawsuit in federal district court, alleging that the government committed malicious prosecution. The district court, however, refused to hear Mr. Huntress’s claim, finding that sovereign immunity shields the EPA’s conduct from judicial scrutiny. The Second Circuit upheld the district court, and thereby deepened a circuit split over how to interpret the Federal Tort Claims Act’s waiver of sovereign immunity. Now, Mr. Huntress seeks Supreme Court review.
The Cato Institute, joined by the NFIB Small Business Center, Rutherford Institute, Mackinac Center for Public Policy, Competitive Enterprise Institute, and Center for Constitutional Jurisprudence, filed a brief in support of Mr. Huntress’s petition. The brief urges the Court to use this case to affirm that the Federal Tort Claims Act remains a viable check on the worst excesses of the administrative state.