Suing the Federal Government

History Traditional Sovereign Immunity US Constitution "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const. art. I, § 9. All compensation had to be by private bills What problems do private bills pose?

Court of Claims - 1855 Administrative tribunal to review claims and make recommendations to Congress Later Congress made the decisions binding Not an Art III court Like bankruptcy courts Appeal to the Federal circuit and the United States Supreme Court Contracts, tax refunds, takings - not torts

Federal Tort Claims Act Went into effect in 1945 All private bills before then Waives sovereign immunity for the delineated claims against the federal government

Causes of Action under the FTCA - Sec 2672 The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the agency while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred

Limitations on Liability - Sec 2674 The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. If, however, in any case wherein death was caused, the law of the place where the act or omission complained of occurred provides, or has been construed to provide, for damages only punitive in nature, the United States shall be liable for actual or compensatory damages, measured by the pecuniary injuries resulting from such death to the persons respectively, for whose benefit the action was brought, in lieu thereof.

Exceptions to the FTCA - § 28 USC Sec 2680 http://biotech.law.lsu.edu/cases/immunity/ftca_exceptions.htm

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) Bivens recognized that there is a direct action against federal employees for violations of constitutional rights Bivens is a personal action, not an official capacity action Why would you to use Bivens rather than state tort remedy? Is it the same rationale for using §1983 rather than a state lawsuit?

2680(h) - intentional torts by police officers - revised after Bivens Must be based on violations of state law Has become a substitute for a Bivens action for covered officers if the offense also sounds in state law Only covers law enforcement officers A recent case allows a Bivens action against federal medical personnel in a detention center.

Administrative Procedural Requirements - Sec 2675 An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.

What if the Agency Does Not Act on the Claim? The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.

Filing a Claim is Jurisdictional This is an administrative compensation scheme, so it is subject to exhaustion of remedies You file a claim with the agency with 2 years of the accidence You can only go to court after the agency rules on the claim or after six months "The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section." If you do not comply with this requirement, your case will be dismissed and if the 2 years has elapsed, you will not be prescribed.

The Discretionary Function Defense - Sec 2680 (a) Any 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, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

What is the Intent of this Provision? What is a discretionary function? Why do we limit claims based on government decisionmaking? What are the consequences for allowing litigants to challenge government polices? How does this mirror judicial review of rules and adjudications? What is the remedy for bad decisions? What about compensation?

Allen v. United States, 816 F. 2d 1417 (10th Cir Allen v. United States, 816 F.2d 1417 (10th Cir. 1987) - The Atom Bomb Case AEC tested atomic bombs in Nevada Fallout drifted out of the test area and into populated areas There was evidence that the local population was harmed After decades, the plaintiffs won at the district court On appeal, the AEC argued that it had made a policy choice that exposing the population to fallout was justified by the need to do the testing Is this a proper discretionary function? How is this different from a traditional torts case?

Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988) What was the product in Berkovitz? What did the FDA regulations require the FDA to do to assure the safety of the polio vaccine? What did the plaintiffs claim the FDA failed to do? What was the FDA’s defense?

Varig Airlines (in Berkovitz) What was the injury in Varig Airlines? What did the enabling act require the agency to do? What did the regs require? How are the regs in Berkovitz different from those in Varig Airlines?

Agency Liability Why was the FDA liable in Berkovitz? How is this related to State Farm? How could the FDA have worded the regulations to avoid this sort of liability? Why might that have raised a red flag during notice and comment? LA follows Berkovitz

Can the Government Be Liable When the Case Involves Battery of a Third Person? Sheridan v. United States, 487 U.S. 392 (1988) Government assumed a duty to restrain an intoxicated, armed serviceman Government did not carry out this duty properly and the drunk assaulted people Legal results Is a third party assault covered by the FTCA? What about failure to restrain? Is this like Allen or Berkovitz?