1. Suing the Government

2. 42 USC 1983

3. 42 USC § 1983. Civil action for deprivation of rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. ...

4. Background When were 42 USC 1981, et seq passed?
Who were they intended to protect?
What sort of color of state action was Congress thinking about?
Now state action may be private contractors carrying out state policy
Does not apply to political subdivisions of the state such as cities.

5. The Constitutional Violation
All 1983 actions are torts, but not all torts are 1983 actions.
They must rise to constitutional status
Killing, beating, cruel and unusual punishment, and other serious, intentional actions.
There is a de minimis threshold.
Ordinary negligence torts are covered by Tort Claims Acts.

6. Who Can You Sue? Individuals Personal capacity
Official capacity - the employer also has to pay
No vicarious liability
You have to show the action was part of official policy or known behavior to make a 1983 claim against the governmental employer.
Were the police in the Danziger Bridge case following NO Police policy?

7. 11th Amendment
Can sue state officials in their personal capacity, but cannot sue them in their official capacity.
Thus, in theory the state is not responsible for judgments against state employees under 1983, but all states indemnify them if it is in their official capacity.
States may waive 11th amendment immunity in several ways, including by buying insurance.

8. What Can You Get?
Money damages from local government entities and from individuals.
Injunctions to stop unconstitutional behavior by the state - no money damages because of the 11th amendment.
Can be contempt of court fines for not correcting the enjoined conditions.
The main way to enforce state prison orders.

9. Defenses to Personal Claims
Absolute immunity - legislators, judges, prosecutors (only for their direct prosecutorial duties).
Qualified immunity - everyone else.
Next slide

10. Qualified Immunity: Harlow v. Fitzgerald, 457 U.S. 800 (1982)
The Court ruled that government officials performing discretionary functions should be protected from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would be aware.
Those who are plainly incompetent or who knowingly violate the law cannot invoke qualified immunity.

11. The Policy Rationale for Qualified Immunity
Why is qualified immunity necessary for governmental action?
What would be a Mathews analysis?
Does litigation only cost when the defendant loses?
Why is there a strong policy for summary judgment in 1st amendment news cases?

12. Standards for Qualified Immunity
...the Fourth Circuit considered whether police officers who bound a defenseless man to a pole with flex cuffs at three in the morning in a deserted parking lot and then abandoned him, all with admittedly no legitimate law enforcement purpose, were entitled to qualified immunity. (Robles v. Prince George's County, Maryland, 302 F.3d 262 (4th Cir. 2002))
What does this tell us about the standard for qualified immunity?

13. Federal Tort Claims Act

14. 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?

15. 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

16. 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

17. FTCA Procedure

18. 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

19. 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.

20. Exceptions to the FTCA - § 28 USC Sec 2680
(h) originally did not include the provision for law enforcement officers.

21. 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 weren't Bivens actions originally covered by the FTCA?
Why might you use Bivens rather than state tort remedy?

22. 2680(h) - intentional torts by police officers - revised after Bivens
Has become a substitute for a Bivens action for covered officers.
When would a Bivens action still be possible?
When would an ordinary tort action be possible?
A recent case allows a Bivens action against federal medical personnel in a detention center.

23. 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.

24. 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.

25. Filing a Claim is Jurisdictional
This is an administrative compensation scheme, so it is subject to exhaustion of remedies
You must file a claim with the agency within 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.

26. 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?

27. 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.
The District Court accepted this theory.

28. 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.

29. 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.

30. 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?

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

32. Allen v. United States, 816 F. 2d 1417 (10th Cir
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?

33. Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988)

34. Background on Vaccine Liability

35. Polio Vaccine Salk vaccine Dead virus - supposedly Sabin vaccine
Live, attenuated vaccine
Gives a mild infection
Can spread to others - which is good
What if someone is immunosuppressed?

36. Cutter Incident
During the first wave of vaccinations when the polio vaccine became available in 1955
Some vaccine was not killed and children became infected
Remember, there is still polio in the community at this time
First modern vaccine litigation
Real injuries, but a real benefit

37. Post Cutter Incident Undermined confidence in vaccines
A made vaccine cases easier to prove
There was some natural spread from Sabin virus
Swine Flu vaccine came along in 1975 and might have caused a neurologic disease

38. Swine Flu
flu season
New strain of flu that was thought to resemble the Spanish Influenza
Feds did a massive vaccine campaign
Companies demanded immunity for lawsuits
Congress let plaintiffs substitute the feds as plaintiff, and allowed strict liability theories

39. Swine Flu - Legal Consequences
Huge incentive to find injuries
Diagnosis of Guillain-Barre syndrome was ambiguous
No lab test
vague finding in all but the extreme cases
Docs were encouraged to make the diagnosis
Maybe the first big injury case where plaintiff's attorneys shaped the epidemiology and perception of the disease
Later work found no excess incidence of Guillian-Barre
Berkovitz incident happened in this climate

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

41. 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?

42. Agency Liability
Why was the FDA liable in Berkovitz?
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?

43. Epilog National Childhood Vaccine Injury Compensation Act Autism Scam
Based on fraudulent research
Tries to get around the act by blaming the preservative
Attacks on adult vaccines like anthrax
Anti-vaccine forces have undermined the vaccine law system

44. Pandemic Flu Vaccines What are the legal issues?
How can the feds deal with these?
What about rolling out an experimental vaccine?
What if the feds make you take the experimental vaccine?
And it harms you?
What does Allen tell us?
Public Readiness and Emergency Preparedness Act
Creates broad immunity for government and private contractors

45. Tort Claims in Louisiana

46. Raw Oysters What do oysters eat? Hepatitis A - traditional
Liver disease
some die
vibrio vulnificus - the new threat
acute liver disease and failure
various other nasty vibrios
This is why God made deep fat fryers

47. DHS Mandated Warning
THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN PRODUCTS. IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY COOKED.

48. Where Does the Warning Have to be Posted??
Section 23:006-4 of the Sanitary Code requires that all "establishments that sell or serve raw oysters must display" a prescribed warning "at point of sale." The establishment has discretion in determining what method may be used to convey the warning because the warning can be conveyed by a sign, menu notice, table tent or other clearly visible message.
What is the critical language?

49. The Oyster Industry and Warnings
Did they support the reporting regulations?
What was their concern?
What would you tell them as a products liability lawyer?
How did their position affect the final form of the law?
What should it really say?
Is this like fugu - puffer fish - sushi?

50. Gregor v. Argenot Great Central Insurance Co. , 851 So. 2d 959 (La
What happened to plaintiff?
Preexisting illness?
What if he did not have a preexisting illness?
Where was the sign posted?
Where did plaintiff eat?
Did he see the sign?

51. The Claims Who did the plaintiff sue?
What was the comparative fault assessment?
What is the plaintiff's negligence theory against the state?

52. Did the Oysters Really Make Him Sick?
The parties further stipulated that Gregor contracted vibrio vulnificus sepsis through the consumption of the raw oysters on August 5, 1996 at Pascal's Manale which contained the bacteria. However, it is noteworthy that Dr. Joel Nitzkin testified that the incubation period for vibrio vulnificus is a range of 12 to 36 hours with most persons who get sick consuming the product hours prior to the onset of illness. Dr. Louise McFarland (Chief Epidemiologist for the Office of Public Health) agreed that with oysters consumed between 12 noon and 2:00 p.m., and the onset of symptoms at 4:30 p.m. on that same day, this case was unusual because of the very short incubation period for bacteria to multiply enough to cause a serious infection.

53. Do They Even Know Where the Oysters Came From?
The parties also stipulated that the raw oysters consumed by Gregor were purchased by Pascal's Manale from Bez Oysters and Seafood, Inc., who purchased the raw oysters from Eddie's Quality Oysters, Inc. Despite this stipulation by the parties, an investigation by the Office of Public Health, Seafood Sanitation Unit confirmed that the oysters served to Gregor were harvested from private leases in California Bay, and Louisiana Bez Oysters and Seafood, Inc. purchased the oysters from Miro Mjehovic rather than Eddie's Quality Oysters, Inc.

54. Trial Court Why was DHH assessed so much fault?
Should the restaurant be able to blame the agency for not telling them they are breaking the law?
Why not hit the oyster wholesaler?
The State claimed the discretionary function defense.
Is this case Berkowitz?

55. Louisiana State Immunity
Sovereign immunity was abolished in the Edwards' constitution.
How does this change the construction of the immunity provision as compared to the construction of the FTCA?
The Discretionary Authority Statute:
"Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties. "

56. Court's Analysis The Court's use of Berkowitz is confusing.
It rejects the Fowler's court's reliance on Berkowitz because the LA statute is different
It then appears to use an analysis that is consistent with Berkowitz and other FTCA cases in its resolution of the case
How is this case like Berkowitz?
What is the role of the regulation?
How is the agency arguing that the reg does not apply?
Berkovitz
25% of the oysters were consumed at the table.

57. What was the Real Negligence of DHH?
Did it really allow inspectors to decide what point of sale meant?
What does the court assume - probably correctly - about what the inspector did?
What was the negligence by the department?
Was the restaurant also liable?
Bad oysters or bad warning?
How did the court modify the allocation of fault?

58. Public Health Risks
Does the health department have a duty to warn about risks it knows of?
What if it warns physicians, but not the public?
Should it be liable for not abating a risk to the public?
What about testing the oyster beds?
What did the health department find about the origin of the oysters in this case that should worry you?

59. Hepatitis in Bathhouses
Data from health studies in the mid-1970s showed a huge risk of hepatitis b in bathhouses
Should the health department have warned the public?
Should they have closed down the bathhouses?
What about AIDS in the bathhouses?
What if the statute says the government shall protect the public?
What does the public assume from government inaction?