Suing the Government
1
42 USC 1983
2
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. ...
3
Background
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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.
4
The Constitutional Violation
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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.
5
Who Can You Sue?
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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?
6
11th Amendment

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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.
7
What Can You Get?
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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.
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Defenses to Personal Claims

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Absolute immunity - legislators, judges,
prosecutors (only for their direct prosecutorial
duties).
Qualified immunity - everyone else.
 Next slide
9
Qualified Immunity: Harlow v. Fitzgerald,
457 U.S. 800 (1982)

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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.
10
The Policy Rationale for Qualified
Immunity
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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?
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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?
12
Federal Tort Claims Act
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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?
Court of Claims
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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
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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
FTCA Procedure
Causes of Action under the FTCA - Sec
2672
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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
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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.
19
Exceptions to the FTCA - § 28 USC Sec
2680
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http://biotech.law.lsu.edu/cases/immunity/ftca_ex
ceptions.htm
(h) originally did not include the provision for law
enforcement officers.
20
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 weren't Bivens actions originally covered
by the FTCA?
Why might you use Bivens rather than state tort
remedy?
21
2680(h) - intentional torts by police
officers - revised after Bivens
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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.
22
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.
23
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.
24
Filing a Claim is Jurisdictional
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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.
25
Dalehite v. U.S., 346 U.S. 15 (1953)
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Texas City Disaster
 http://www.local1259iaff.org/disaster.html
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
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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.
Specific Findings by the Trial Court
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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?
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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 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
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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?
Berkovitz by Berkovitz v. U.S., 486 U.S.
531 (1988)
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Background on Vaccine Liability
Polio Vaccine
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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?
Cutter Incident
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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
Post Cutter Incident
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Undermined confidence in vaccines
1965 - 402 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
Swine Flu
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1974-75 flu season
New strain of flu that was thought to resemble the
1918-1919 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
Swine Flu - Legal Consequences
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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 - 1979
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?
What did the plaintiffs claim the FDA failed
to do?
What was the FDA’s defense?
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?
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?
Epilog
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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
Pandemic Flu Vaccines
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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
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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DHS Mandated 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.
47
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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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?
49
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?
51
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 18-24 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.
52
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.
53
Trial Court
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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?
54
Louisiana State Immunity
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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. "
55
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?
56
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?
57
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?
58
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?
59