Suing the Federal Government
FTCA I
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
We will discuss the procedure under the FTCA
later.
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.
 LNG terminals?
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
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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.
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
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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?
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.
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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.
Form 95 - FTCA claims form
Alternatives to Form 95
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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 be prescribed.
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Flood Law
Flood Control Act of 1928
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What happened in 1927?
What are the immunity provisions?
 Flood Control Act of 1928, 33 U. S. C. §702c -- which
states that "[n]o liability of any kind shall attach to or
rest upon the United States for any damage from or by
floods or flood waters at any place"
Why did Congress provide this immunity?
Does it say this is limited to flood control projects?
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MRGO
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Where is the MRGO?
Why was it built?
 http://www.mrgo.gov/MRGO_History.aspx
 What ports are in competition with NO?
 Why is it easier to get to them?
 What is the advantage of Mississippi river ports?
Who do you think wanted it built?
 Was it every used much?
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How do you get into Court in Flood Act
Cases?
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Is there jurisdiction in the Flood Control Act?
Are these Bivens cases?
FTCA
 What do you need to do before you go to court?
 What do you need to show about the feds
decisionmaking?
Graci v. United States, 456 F.2d 20 (5th
Cir. 1971)
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Where was the flood?
What caused it?
Which Corp project is being attacked?
What was the purpose of this project?
Why is it inherently risky?
Court's Analysis
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Did the Flood Control Act of 1928 apply in this
case?
What standard would you then apply in
determining the government's liability?
Was the government liable?
 What did the government then do?
 Why does this ultimately drive the
characterization of the levees in the Katrina
cases?
Graci v. U.S., 435 F.Supp. 189 (E.D.La.
1977)
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27. Hurricane Betsy, while unusually ferocious,
was not the only hurricane to produce flooding in
the areas occupied by plaintiffs' property. Since
1900, 88 hurricanes and tropical storms have
traversed through or by the Louisiana coast.
Three of these, in 1915, 1947, and 1956, prior to
the construction of the MRGO, produced flooding
similar to that experienced in Hurricane Betsy.
Why was the Flooding Worse in Betsy?
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While the damage caused by Hurricane Betsy was
far more severe than that occasioned during prior
hurricanes, the severity and track of Hurricane
Betsy are responsible therefor as opposed to any
manmade construction such as the MRGO. Betsy
was so severe that all the Louisiana coastal
lowlands experienced some inundation and
following Betsy's occurrence the scientific
parameters for calculating hurricane protection
were, of necessity, recomputed.
Did MRGO Cause Flooding?
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48. The MRGO did not in any manner, degree, or
way induce, cause, or occasion flooding in the
Chalmette area. All flooding was the result of
natural causes working upon local waters which
have before threatened and caused flooding in the
area due to the inadequate non-federal local
protective features.
What did Plaintiffs Learn from Graci?
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11. Plaintiffs have evidenced no variance between the
project as completed and the construction of the project as
directed by Congress.
12. Plaintiffs have failed to show by a preponderance
of the evidence any fault by the defendant in the design,
construction or functioning of the MRGO.
13. Nor have plaintiffs shown by a preponderance of
the evidence any negligence by the defendant in the
design, construction or functioning of said project.
14. Nor have plaintiffs shown by a preponderance of
the evidence any causal connection between the MRGO
and any damages which plaintiffs may have sustained.
Was This the Right Message?
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Did Graci implicate the Flood Control Act of 1928?
Did the court in Graci discuss the discretionary
function defense in the FTCA?
What analysis did the court use for the
government’s duty?
 Was this the right analysis?
 Why didn’t it matter?
LA Law: Saden v. Kirby, 660 So.2d 423
(La. 1995)
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New Orleans Sewerage and Water
 2 big pumps, one little one
 underground power line for big pumps
 generator to run one big pump
 power line for big pumps went down
 was still down when flood occurred 3 months
later - finally fixed 6 months after the fault
Court found negligence.
 How could you argue discretion?
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Pumps in Katrina
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Why are there pumps in New Orleans?
Why did they shut down the pumps during
Katrina?
What is the city's Berkovitz's defense for shutting
down the pumps?
What facts raise the specter of Saden?
Why are the levee control boards and Parishes
poor target defendants?
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Central Green Co. v. United States, 531
U.S. 425 (2001)
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California Water Project - irrigation
 Take water from one area and spread it around
the state
Land is damaged by seepage from the canal
 Is this covered by the flood control act
immunity?
 The feds say that any flood control purpose
puts the every water related damage under
flood control act immunity
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Is there a Flood Control Purpose at All?
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What happens when the snow melts too fast or
there is a big rain in this system?
 Does the irrigation system also handle flood
water?
 Does this make it entirely a flood control
project, so that any damage is immunized?
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The Holding in Central Green
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The text of the statute does not include the words
"flood control project." Rather, it states that
immunity attaches to "any damage from or by
floods or flood waters . . . ." Accordingly, the text
of the statute directs us to determine the scope of
the immunity conferred, not by the character of
the federal project or the purposes it serves, but
by the character of the waters that cause the
relevant damage and the purposes behind their
release.
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Sorting out a Dual Purpose
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If water project like an irrigation system also has a flood
control purpose, the Act does not grant immunity if the
damage was not related to a flood.
 Would this mean, however, that even a dual purpose
project would be immune it was a flood?
However, if the only purpose of the project is flood
control, such as a levee, are all damages covered by the
flood control act immunity?
 How do you analyze this?
 Why does it not matter whether it is flood water?
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Between Betsy and Katrina
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40 years
Corps initial plans are rejected in favor of ring levees
 Critically, canals are left open
 Lots of issues in construction
 Huge problem of lack of maintenance
 A lot of subsidence between 1965 and 2005
Katrina - not just levees breaking
 A lot of overtopping - there would have been a lot of
flooding without a levee break
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