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?
2
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
3
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
4
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
5
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.
6
Exceptions to the FTCA - § 28 USC Sec
2680

http://biotech.law.lsu.edu/cases/immunity/ftca_exc
eptions.htm
7
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?
8
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.
9
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.
10
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.
11
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.
12
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.
13
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?
14
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?
15
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?
16
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?
17
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
18
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?
19