Suing the Federal Government
History
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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?
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Court of Claims - 1855
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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
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Federal Tort Claims Act
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Went into effect in 1945
All private bills before then
Waives sovereign immunity for the delineated
claims against the federal government
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Causes of Action under the FTCA - Sec
2672
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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
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Limitations on Liability - Sec 2674
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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.
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Exceptions to the FTCA - § 28 USC Sec
2680
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http://biotech.law.lsu.edu/cases/immunity/ftca_exc
eptions.htm
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Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971)
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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?
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2680(h) - intentional torts by police
officers - revised after Bivens
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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.
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Administrative Procedural Requirements Sec 2675
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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.
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What if the Agency Does Not Act on the
Claim?
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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.
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Filing a Claim is Jurisdictional
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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.
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The Discretionary Function Defense - Sec
2680
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(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.
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What is the Intent of this Provision?
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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?
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Allen v. United States, 816 F.2d 1417 (10th
Cir. 1987) - The Atom Bomb Case
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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?
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Berkovitz by Berkovitz v. U.S., 486 U.S.
531 (1988)
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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?
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Varig Airlines (in Berkovitz)
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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?
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Agency Liability
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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?
LA follows Berkovitz
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Can the Government Be Liable When the
Case Involves Battery of a Third Person?
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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?
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Tort Claims in Louisiana
Raw Oysters
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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
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The Oyster Industry and Warnings
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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?
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State Warning
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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.
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Where Does the Warning Have to be
Posted??
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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?
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Gregor v. Argenot Great Central Insurance
Co., 851 So.2d 959 (La. 2003)
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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?
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The Claims
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Who did the plaintiff sue?
What was the comparative fault assessment?
What is the plaintiff's negligence theory against
the state?
 What is the causation issue?
Why was DHH assessed so much fault?
What is the state's defense?
How does plaintiff attack this defense?
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State Immunity
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Sovereign immunity was abolished
 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. "
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Court's Analysis
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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?
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What was the Real Negligence of DHH?
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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?
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Public Health Risks
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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?
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Hepatitis in Bathhouses
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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?
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