Suing the Federal Government FTCA I

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 Contracts, tax refunds, takings - not torts 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

Federal Tort Claims Act Went into effect in 1945 All torts were private bills before then Tied up Congress and encouraged corruption Allowed tort claims Looks to the law of the state where the tort occurred for the standards for the tort We will discuss the procedure under the FTCA later.

Dalehite v. U.S., 346 U.S. 15 (1953) Texas City Disaster Why is the TVA producing ammonium nitrate fertilizer? What are other uses of ammonium nitrate? Where is it going? Why might a ship also be carrying explosives?

The General Claim The negligence charged was that the United States, without definitive investigation of FGAN properties, shipped or permitted shipment to a congested area without warning of the possibility of explosion under certain conditions. LNG terminals? The District Court accepted this theory.

Specific Findings by the Trial Court the Government had been careless in drafting and adopting the fertilizer export plan as a whole, specific negligence in various phases of the manufacturing process, and those which emphasized official dereliction of duty in failing to police the shipboard loading.

The Statutory Defense (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 juridical review of rules and adjudications? What is the remedy for bad decisions? What about compensation?

The United States Supreme Court Ruling What did the United States Supreme Court rule about the government's actions in this case?

Allen v. United States, 816 F.2d 1417 (10th Cir. 1987) - This Clears up the Cloud How did the government put these people at risk? Did the government deny that they caused any injuries? Was this an accident? What did the government intend to do? What is the discretionary authority issue and how was it resolved? What do you do if you do not like this?

FTCA Procedure

13 Causes of Action under the FTCA - Sec 2672 The head of each Federal agency... 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

14 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.

15 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. Form 95 - FTCA claims form Alternatives to Form 95

16 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.

17 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 be prescribed.

Flood Law

19 Flood Control Act of 1928 What happened in 1927? What are the immunity provisions? Flood Control Act of 1928, 33 U. S. C. §702c -- which states that "[n]o liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place" Why did Congress provide this immunity? Does it say this is limited to flood control projects?

20 MRGO Where is the MRGO? Why was it built? What ports are in competition with NO? Why is it easier to get to them? What is the advantage of Mississippi river ports? Who do you think wanted it built? Was it every used much?

How do you get into Court in Flood Act Cases? Is there jurisdiction in the Flood Control Act? Are these Bivens cases? FTCA What do you need to do before you go to court? What do you need to show about the feds decisionmaking?

Graci v. United States, 456 F.2d 20 (5th Cir. 1971) Where was the flood? What caused it? Which Corp project is being attacked? What was the purpose of this project? Why is it inherently risky?

Court's Analysis Did the Flood Control Act of 1928 apply in this case? What standard would you then apply in determining the government's liability? Was the government liable? What did the government then do? Why does this ultimately drive the characterization of the levees in the Katrina cases?

Graci v. U.S., 435 F.Supp. 189 (E.D.La. 1977) 27. Hurricane Betsy, while unusually ferocious, was not the only hurricane to produce flooding in the areas occupied by plaintiffs' property. Since 1900, 88 hurricanes and tropical storms have traversed through or by the Louisiana coast. Three of these, in 1915, 1947, and 1956, prior to the construction of the MRGO, produced flooding similar to that experienced in Hurricane Betsy.

Why was the Flooding Worse in Betsy? While the damage caused by Hurricane Betsy was far more severe than that occasioned during prior hurricanes, the severity and track of Hurricane Betsy are responsible therefor as opposed to any manmade construction such as the MRGO. Betsy was so severe that all the Louisiana coastal lowlands experienced some inundation and following Betsy's occurrence the scientific parameters for calculating hurricane protection were, of necessity, recomputed.

Did MRGO Cause Flooding? 48. The MRGO did not in any manner, degree, or way induce, cause, or occasion flooding in the Chalmette area. All flooding was the result of natural causes working upon local waters which have before threatened and caused flooding in the area due to the inadequate non-federal local protective features.

What did Plaintiffs Learn from Graci? 11. Plaintiffs have evidenced no variance between the project as completed and the construction of the project as directed by Congress. 12. Plaintiffs have failed to show by a preponderance of the evidence any fault by the defendant in the design, construction or functioning of the MRGO. 13. Nor have plaintiffs shown by a preponderance of the evidence any negligence by the defendant in the design, construction or functioning of said project. 14. Nor have plaintiffs shown by a preponderance of the evidence any causal connection between the MRGO and any damages which plaintiffs may have sustained.

Was This the Right Message? Did Graci implicate the Flood Control Act of 1928? Did the court in Graci discuss the discretionary function defense in the FTCA? What analysis did the court use for the government’s duty? Was this the right analysis? Why didn’t it matter?

29 LA Law: Saden v. Kirby, 660 So.2d 423 (La. 1995) New Orleans Sewerage and Water 2 big pumps, one little one underground power line for big pumps generator to run one big pump power line for big pumps went down was still down when flood occurred 3 months later - finally fixed 6 months after the fault Court found negligence. How could you argue discretion?

30 Pumps in Katrina Why are there pumps in New Orleans? Why did they shut down the pumps during Katrina? What is the city's Berkovitz's defense for shutting down the pumps? What facts raise the specter of Saden? Why are the levee control boards and Parishes poor target defendants?

31 Central Green Co. v. United States, 531 U.S. 425 (2001) California Water Project - irrigation Take water from one area and spread it around the state Land is damaged by seepage from the canal Is this covered by the flood control act immunity? The feds say that any flood control purpose puts the every water related damage under flood control act immunity

32 Is there a Flood Control Purpose at All? What happens when the snow melts too fast or there is a big rain in this system? Does the irrigation system also handle flood water? Does this make it entirely a flood control project, so that any damage is immunized?

33 The Holding in Central Green The text of the statute does not include the words "flood control project." Rather, it states that immunity attaches to "any damage from or by floods or flood waters...." Accordingly, the text of the statute directs us to determine the scope of the immunity conferred, not by the character of the federal project or the purposes it serves, but by the character of the waters that cause the relevant damage and the purposes behind their release.

34 Sorting out a Dual Purpose If water project like an irrigation system also has a flood control purpose, the Act does not grant immunity if the damage was not related to a flood. Would this mean, however, that even a dual purpose project would be immune it was a flood? However, if the only purpose of the project is flood control, such as a levee, are all damages covered by the flood control act immunity? How do you analyze this? Why does it not matter whether it is flood water?

35 Between Betsy and Katrina 40 years Corps initial plans are rejected in favor of ring levees Critically, canals are left open Lots of issues in construction Huge problem of lack of maintenance A lot of subsidence between 1965 and 2005 Katrina - not just levees breaking A lot of overtopping - there would have been a lot of flooding without a levee break