Chapter 11: Suing the Government: Tort Liability for the Gov’t. and Its Officials Basic Issues A. Size & scope of modern government give rise to myriads of ways citizens and groups can suffer harms at its hands [actually the hands of government employees]. Do they have ability to seek redress of grievances, i.e., protection from continuing harms and/or compensation for past harms? B. Under what circumstances and to what extent can government be held accountable for the wrongful acts of its officials & employees? B. Under what circumstances and to what extent can government be held accountable for the wrongful acts of its officials & employees?

C. Basic concept of tort liability: plaintiff must show C. Basic concept of tort liability: plaintiff must show 1. s/he suffered a harm to an interest protected by law and that can be reasonably traced to (blamed on) 2. failure of defendant to exercise reasonable care (a) by an overt act of recklessness OR (a) by an overt act of recklessness OR (b) a negligent failure to act (b) a negligent failure to act 3. which has resulted in a specific $ amount of injury

The Origins of Conflicting Doctrines A. Sovereign Immunity for the State 1. British common law tradition: “the king can do no wrong” was really a question of relative authority and jurisdiction, i.e., if the king is sovereign, no court can exercise jurisdiction over him since jurisdiction implies superiority of power. 2. How did the doctrine get in to U.S. law? a) “one of the mysteries of legal evolution” b) U.S. v Lee (1882) – “... the principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”

3.Rationale for the doctrine a) private claims could bankrupt gov’t. or at least cause diversion of funds needed for other public purposes b) need for efficiency – tort suits would bog down gov’t. in performance of its duties or impose a climate of fear/timidity for fear of being sued c) better for individuals to suffer loss than society to be penalized or inconvenienced 4. What’s the problem with this doctrine in the U.S. context?

The Origins of Conflicting Doctrines A. Sovereign Immunity for the State B. Full Liability for Government Officials 1. British common law tradition 2. What’s the problem? a) How do you separate the individual official in the performance of his duties from the abstraction called “the state” b) The state’s immunity in actual fact extends to the official acting on behalf of the state and under its authority

Softening the Impact of Sovereign Immunity A. Congressional action in 19 th century A. Congressional action in 19 th century 1. Court of Claims Act (1855) – “private bills” 2. § 1983 of Civil Rights Act of 1871 a) aimed at state officials acting “under color” of state law b) sought to reinforce the 14 th Am. c) initially narrow scope of interpretation 2. Tucker Act (1887) a) waiver of sovereign immunity b) Court of Federal Claims renders judgments on claims

Softening the Impact of Sovereign Immunity A. Congressional action in 19 th century A. Congressional action in 19 th century B. Federal Tort Claims Act (1946) 1. constitutes a waiver of sovereign immunity 2. imposes liability on the U.S. for the acts of its in the same manner and to the same extent as a private individual under like circumstances under the law of the place where the tort occurred 2. imposes liability on the U.S. for the acts of its employees in the same manner and to the same extent as a private individual under like circumstances under the law of the place where the tort occurred 3. Gov’t.’s liability is 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

4. Exceptions - claims not covered a) Executive functions: employees exercising due care in the execution of a statute or regulation & claims arising in foreign countries b) Discretionary function or duty, regardless of whether or not the discretion involved was abused c) Loss, miscarriage, or negligent transmission of postal materials d) “Intentional torts”: claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights Since a 1974 amendment to the FTCA, claims for assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process are covered if they are based upon acts or omissions of federal investigative or law enforcement officers, but the exception still applies to non- law enforcement personnel.

Initial Restrictive Interpretations  Feres v U.S. (1950) – tort liability only attaches to gov’t. & its agents when they are performing actions private persons/entities do (thus exempting all military and law enforcement personnel and functions)  Dalehite v U.S. (1953) – expansive interpretation of “discretionary function” and “discretion” exceptions to FTCA to cover every DECISION taken in pursuance of a policy decision, i.e., it made no distinction between discretionary planning {WHAT} and discretionary implementation {HOW}. Under the Dalehite doctrine, only “non-discretionary”, i.e., purely “ministerial” negligence would be covered.

 Indian Towing Co. v U.S. (1955) tort liability attaches to gov’t. when it fails to properly discharge a duty it has accepted responsibility for performing, thus engendering a reasonable expectation or reliance upon the discharge of that duty tort liability attaches to gov’t. when it fails to properly discharge a duty it has accepted responsibility for performing, thus engendering a reasonable expectation or reliance upon the discharge of that duty rejected Feres doctrine rejected Feres doctrine  Griffin v U.S. (1974) Clarifies Dalhite by distinguishing between discretionary policy making and non-discretionary implementation [although “judgments/decisions” are involved, i.e., the political discretionary judgment involved in establishing safety criteria vs. the scientific judgment of whether or not the criteria have been met – the former are immune; the latter are not. Clarifies Dalhite by distinguishing between discretionary policy making and non-discretionary implementation [although “judgments/decisions” are involved, i.e., the political discretionary judgment involved in establishing safety criteria vs. the scientific judgment of whether or not the criteria have been met – the former are immune; the latter are not.

1976 Amendments to §702 of APA “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action w/in the meaning of a relevant statute, is entitled to judicial review thereof.” “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action w/in the meaning of a relevant statute, is entitled to judicial review thereof.” “[No] action in a court of the U.S.... shall be dismissed... on the grounds that it is against the U.S. “[No] action in a court of the U.S.... shall be dismissed... on the grounds that it is against the U.S. However, this provision is restricted to those “seeking relief other than money damages...” However, this provision is restricted to those “seeking relief other than money damages...” This provision has been interpreted to ban only generalized compensatory or punitive damages, not reimbursements or other claims based on specific provisions of the law. This provision has been interpreted to ban only generalized compensatory or punitive damages, not reimbursements or other claims based on specific provisions of the law.

 Allen v U.S. (1987) Holds discretion immunizes officials even if there is negligence associated with exercise of that discretionary decision-making Holds discretion immunizes officials even if there is negligence associated with exercise of that discretionary decision-making  U.S. v Gaubert (1991) Defines discretionary functions to include all the day-to-day decisions involved in business operations Defines discretionary functions to include all the day-to-day decisions involved in business operations Raises question as to whether the distinction between policy planning and ministerial execution remains viable in actual practice Raises question as to whether the distinction between policy planning and ministerial execution remains viable in actual practice

Tort Suits Against Gov’t. Agents & Doctrine of Official Immunity  Official immunity: “officials” enjoy absolute immunity [freedom from being sued] from tort actions arising out of the performance of discretionary functions in their official capacity Judges (including ALJs) Judges (including ALJs) Prosecutors Prosecutors Law enforcement officers* (eventually restricted to execution of search/arrest warrants, giving testimony in court) Law enforcement officers* (eventually restricted to execution of search/arrest warrants, giving testimony in court) Witnesses & jurors Witnesses & jurors Legislators Legislators Executive branch officers Executive branch officers

 Qualified immunity doctrine [not freedom from being sued, only freedom from liability] when performing discretionary functions in good faith in their official capacity] § 1983 suits against state gov’t. agents or units of local government for “due process” violations § 1983 suits against state gov’t. agents or units of local government for “due process” violations Punitive damages may be collected from individualsPunitive damages may be collected from individuals Only compensatory damages may be assessed gov’tOnly compensatory damages may be assessed gov’t “Bivens suits” against federal agents for 4 th Am. violations [Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 1971]; subsequent cases expanded the rights for which remedies exist “Bivens suits” against federal agents for 4 th Am. violations [Bivens v Six Unknown Named Agents of the Federal Bureau of Narcotics, 1971]; subsequent cases expanded the rights for which remedies exist  Personal liability attaches in either case if plaintiff can prove that agents/officials knew or should have known that action violated a constitutional right or acted with malice