2. Category Day Presentation to the Public Health Service Commissioned Corps June 21, 2012

3. Federal Tort Claims Act (FTCA) Bivens Constitutional Tort Claims, Qualified Immunity Defense Representation by the Department of Justice 2

4.  The Federal Tort Claims Act allows lawsuits “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, 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.” - 28 U.S.C. § 1346(b) 3

5. “…lawsuits against the United States…”  Plaintiffs can sue the U.S., not the employee!  28 U.S.C. § 2679(b)(1): If action covered by FTCA, then FTCA is the only way to sue.  If plaintiff sues an employee and FTCA applies, the United States will move to substitute itself as the proper defendant. 4

6. “…for injury or loss of property, or personal injury or death…”  FTCA covers only certain kinds of harms.  Most relevant to us is “personal injury or death.” 5

7. “…caused by the negligent or wrongful act or omission…”  Negligent or wrongful actions ◦ Example: Treated with the wrong medication  Negligent or wrongful omissions ◦ Example: Failed to clear air bubbles from syringe  Causes of action: medical malpractice, medical negligence, wrongful death, etc.  Does not cover constitutional claims 6

8. “…of any employee of the Government…”  For the FTCA to protect your actions, you must be a federal employee.  With rare exceptions, FTCA doesn’t cover contractors. 7

9. “…while acting within the scope of his office or employment…”  Defined: “The range of reasonable and foreseeable activities [one performs] while carrying out the employer’s business.”  Scope of employment is “the heart and soul of the FTCA.”  Dept. of Justice decides whether you’re within scope. 8

10. “…under circumstances where the United States, if a private person, would be liable to the claimant…”  If you could sue a private nurse, doctor, etc. for this conduct, you can sue the United States for it.  The FTCA does not create a new standard for lawsuits. 9

11. “…in accordance with the law of the place where the act or omission occurred.”  State law governs substance of FTCA lawsuits.  If you can’t sue under state law, you can’t sue the United States under FTCA. 10

12. Miscellaneous notes  2-year statute of limitations (i.e., time limit to file) begins with “accrual of claim.”  Does not apply to quarantines.  Does not apply to military or Coast Guard in time of war. 11

13. Supreme Court developed a two-part test ◦ A plaintiff must allege violation of a constitutional right; and ◦ The constitutional right must have been clearly established at the time of the alleged injury. The current state of the law is irrelevant. 12

14.  Qualified immunity applies to discretionary acts that don’t violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800 (1982).  Qualified immunity is an immunity from suit, not only a defense to liability; it must be resolved early in a case, before litigation begins.  The focus in assessing qualified immunity is “objective” reasonableness; the defense applies even if the law was violated, but a “reasonable officer” would not have known of the violation. 13

15.  A Bivens claim is not an automatic entitlement and may be defeated when: ◦ (1) Congress has provided an equally effective alternative remedy explicitly declared to be a substitute for recovery under the Constitution; e.g., 42 U.S.C. § 233(a); Castaneda v. United States, 130 S. Ct. 1845 (2010) (immunity for PHS officers). ◦ (2) special factors counsel hesitation in recognizing a Bivens remedy. Carlson v. Green, 446 U.S. 14 (1980).  A Bivens suit is also precluded if judgment has been entered in a related FTCA suit involving the same employee. 28 U.S.C. § 2676. 14

16.  Fed. R. Civ. P. 4(i)(3) requires service on both the U.S. and upon the federal employee.  Each Bivens defendant must be served with process according to federal rules for serving individuals, unless the employee executes a waiver or allows DoJ to accept service. 15

17. Department of Justice may represent a Bivens defendant, pursuant to 28 C.F.R. § 50.15(a). Three steps for approval: (1) Submit letter to the “authorized official” at your agency explaining (a) why conduct was within the scope; (b) representation is in best interests of the U.S.; and (c) state whether employee was served with summons and complaint (S&C); I.D. any process server and details; and (c) enclose any “service” documents (S&C, certified mail receipts, etc.). (2) Submit endorsement letter to the authorized official from a supervisor with knowledge of employee’s duties. (3) Authorized agency official submits his endorsement, plus the above letters, S&C, etc., to the DoJ representation mailbox:  doj.representation@usdoj.gov -OR - dojrep@civ.usdoj.gov 16

18. Daretia M. Hawkins, Esq. Senior Attorney Dep’t of Health & Human Services Office of the General Counsel General Law Division (202) 233-0237 (direct) (202) 233-0233(main no.) Daretia.Hawkins@hhs.gov Geoffrey Harriman, Esq. Associate Legal Advisor District Court Litigation Division Office of the Principal Legal Advisor U.S. Immigration and Customs Enforcement (202) 732-5318 (direct) Geoffrey.Harriman@ice.dhs.gov **

19.  Pertinent federal statutes:  28 U.S.C. §§ 1346(b), 2401(b), 2671-80  42 U.S.C. § 233(g) (FTCA coverage for PHS providers)  28 C.F.R. § 50.15(a) (DoJ representation requests)  Key Supreme Court cases:  (1) F.D.I.C. v. Meyer, 510 U.S. 471(1994) (FTCA N/A to Constitutional torts)  (2) Bivens v. Six Unknown Named Agents of Fed’l Bureau of Narcotics, 403 U.S. 388 (1971)  (3) Castaneda v. United States, 130 S. Ct. 1845 (2010) (Bivens immunity for PHS)  (4) Harlow v. United States, 457 U.S. 800 (1985) (Bivens qualified immunity defense) 18