National Immigration Project/
Immigration Damages Litigation
Accountability Litigation 101
Law Office of Javier N. Maldonado, PC
110 Broadway St., Ste 510
San Antonio, Texas 78205
Tel. (210) 277-1603 Fax (210) 587-4001
jmaldonado.law@gmail.com
Ghita Schwarz
Center for Constitutional Rights
666 Broadway, 7th Floor
Tel. (212) 614-6445
Fax (212) 614-6422
gschwarz@ccrjustice.org
Why Damages Suits?
Individual & Legal Benefits
Financial relief for Plaintiffs
Possible leverage to negotiate collateral
immigration benefits or relief, such as
prosecutorial discretion
In cases seeking injunctive relief, ability to
keep case alive if standing for injunctive
relief is challenged
Why Damages Suits?
Community and Impact Benefits
 Deterrent effect for agency as a whole and
for individual officers
 Public attention to abuses
 Cumulative power of damages awards
 Ability to use discovery to gather
information for organizing campaigns
Primary Mechanisms




Federal Tort Claims Act, 28 U.S.C. §§
1346(b), 2671-2680
Bivens Suits against individual officers
42 U.S.C. § 1983 against local and state
persons
Other available statues (ATCA, TVPA,
FSIA, state law)
Federal Tort Claims Act
Overview

Absent a waiver of sovereign immunity,
the United States is immune from suit.
The FTCA, 28 U.S.C. §§ 1346(b),
2671-2680, waives the United
States’sovereign immunity to allow suits
for money damages arising out of the
negligent acts of federal employees.

The United States is the only defendant
subject to suit and liability under FTCA.
Federal Tort Claims Act
Overview


The US is liable “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.” 28 U.S.C. §1346(b)(1).
Elements of tort & amount governed by
law of place where tort occurred. 28
U.S.C. § 2674.
Federal Tort Claims Act
Overview

Substantive Preconditions to Suit
– Except for intentional torts committed by law
enforcement officers, US is only liable for
negligent acts of its employees
– US in not liable for negligent acts of
contractors. Logue v. US, 412 U.S. 521
(1973).
– Negligent acts must be within the scope of the
official’s duties or employment. 28 U.S.C. §
1346(b)(1).
Federal Tort Claims Act
Overview

Exceptions to Waiver of Sovereign Immunity
– Discretionary Function (no suit if based on
exercise of “due care” in the execution of a
statute or regulation or upon the exercise or
failure to exercise a discretionary function or
duty)
– Intentional Torts except if committed by law
enforcement agents and only for specified
torts.
– Extraterritorial acts
Federal Tort Claims Act
Practice & Procedure

Jurisdictional Preconditions to Suit
– Must present administrative claim to the
offending agency within 2 years of the accrual
of the action
– Claim may be filed on Form SF-95 or any
other document
– Amount demanded in litigation may not
exceed amount demanded on Form SF-95
Federal Tort Claims Act
Practice & Procedure
Suit can be filed after denial of administrative
claim or 6 months after claim has been pending:
–No heightened pleading requirement
–No jury trial
–Venue lies where plaintiff resides or where
tortious act occurred
–Damages are measured by law of the place
where tort occurred, and no punitive damages
–US has 60 days to answer
Bivens Suits
Overview

Bivens actions are money damages
suits against federal agents, in their
individual capacity, for violations of
constitutional rights. Bivens v. Six
Unknown Named Agents of the
Federal Bureau of Narcotics, 403
U.S. 388 (1971).
Bivens Suits
Overview
Claims recognized only for violations of
4th
Amendment: Bivens (1971)
5th Amendment Equal Protection Clause: Davis v.
Passman, 442 U.S. 228 (1979)
8th Amendment: Carlson v. Green, 446 U.S. 14
(1980)
Supreme Court reluctant to recognize “new”
constitutional causes of action. Corr. Services Corp.
v. Malesko, 534 U.S. 61 (2001)
Bivens Suits
Overview
Basic elements of a Bivens lawsuit:
Plaintiff has a constitutionally protected right.
A federal official violated such right.
Plaintiff lacks a statutory cause of action, or
an available statutory cause of action does not
provide a meaningful remedy.
An appropriate remedy, namely damages, can
be imposed.
Bivens Suits
Overview





Jurisdiction in federal court exists under 28
U.S.C. § 1331.
Suit must be brought within the state
limitations period for personal injury actions
where claim arose.
Jury trial is available.
Compensatory and punitive damages are
available.
Attorneys’ fees are not recoverable under
Equal Access to Justice Act or 42 U.S.C.§
1988.
Bivens Suits
Defendants

☓
☓
☓
Defendants are federal officials sued in individual
capacity
Federal agencies are not subject to Bivens actions. FDIC
v. Meyer, 510 U.S. 471 (1994).
Private correctional facilities under contract with a
federal agency are not subject to Bivens actions. Corr.
Servs. Corp. v. Malesko, 534 U.S. 61 (2001).
42 U.S.C. §233(a) precludes Bivens actions against
individual U.S. Public Health Service officers or
employees for constitutional violations committed while
acting within the scope of their office or employment.
Hui v. Castaneda, 130 S.Ct. 1845 (2010).
Bivens Suits
Defendants
If acting in official capacity, the following
officials have absolute immunity:
☓Judges:
Pierson v. Ray, 386 U.S. 547 (1967)
☓Legislators: Tenney v. Brandhove, 341 U.S. 367 (1951)
☓Prosecutors: Imbler v. Pachtman, 424 U.S. 409 (1976)
These are 42 U.S. C. §1983 cases, but Bivens
immunities track §1983. Butz v. Economou, 438
U.S. 478 (1978).
Bivens Suits
Qualified Immunity
Counsel should be prepared for a motion
for qualified immunity (QI) in the very
early stages of the lawsuit.
The filing of a motion for QI will limit the
plaintiff’s ability to conduct discovery.
QI is addressed in a two part test: (1) do
the facts alleged show the violation of
constitutional right? (2) was the
constitutional right clearly established?
Saucier v. Katz, 533 U.S. 194 (2001).
42 U.S.C. § 1983
Overview

“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…”
42 U.S.C. § 1983
Overview





Does not create substantive rights
Merely provides for a remedy
State and federal courts have concurrent
jurisdiction
No administrative exhaustion requirement
Statute of limitations is determined by the
personal injury statute in the forum state. Wilson
v. Garcia, 471 U.S. 261 (1985).
42 U.S.C. § 1983
Defendants

Section 1983 suits are usually two types:
1) Local Governments/Official Capacity
 The suit is against the local governmental
entity
 No qualified immunity
 Must prove custom or policy
 No respondeat superior liability
 No punitive damages, City of Newport v.
Fact Concerts, Inc., 453 U. S. 247 (1981)
42 U.S.C. § 1983
Defendants
2) Individual capacity
 Suit is against the officer and s/he is
personally liable for damages
 Punitive damages are available
 Can claim qualified immunity as in
Bivens suits
42 U.S.C. § 1983
Defendants


☓
☓
☓
☓
☓
Only persons are liable.
The following are not liable:
The United States & U.S. Territories
Federal agencies
Federal officials (except where they have conspired with
state or local officials)
States
State officials (except for official capacity suits in which
only prospective injunctive relief for an ongoing federal
violation is sought or in individual capacity suits). Frew
v. Hawkins, 540 U.S. 431 (2004).
42 U.S.C. § 1983
Municipal Defendants
– Theories of Municipal Liability
 Express policy causes a constitutional
violation. Monell v. Dept. of Social
Services, 436 U.S. 658 690 (1978).
 Widespread custom or practice is so
common that it has the effect of an express
policy. One or two acts of wrongdoing
will not be enough. Most courts require
long-standing practice that is well settled.
42 U.S.C. § 1983
Municipal Defendants


A person with final policymaking authority
causes the violation. Must look at state law to
determine who are final policymakers.
Pembaur v. City of Cincinnati, 475 U.S. 469
(1986).
Failure to train, supervise, or screen. City of
Canton v. Harris, 489 U.S. 378, 387 (1989).
Must show that municipality’s failure to train
(or supervise or screen applicants) amounts to
deliberate indifference to the rights of persons
who come into contact with officers.
42 U.S.C. § 1983
Relief
Monetary Damages
Compensatory damages (e.g., past/future lost wages,
medical expenses, pain and suffering)
 Punitive damages (individual capacity suits only)
 Equitable/Injunctive Relief: granted only for
prospective, immient, irreparable harm with no other
adequate remedy; past exposure to illegal conduct
insufficient “if unaccompanied by any continuing,
present adverse effects.” O’Shea v. Littleton, 414
U.S. 488 (1974).

Other Accountability Statutes
Suing Foreign Officials
Alien Tort Claims Act, 28 U.S.C. § 1350: noncitizens may sue for torts committed in violation
of international law or treaties
Torture Victims Protection Act, 28 U.S.C.
§1350 note §1(a): US citizen or non-citizen
may sue for acts of torture and wrongful death
claims based on extrajudicial killing
Foreign Sovereign Immunities Act, immunity
exception under 18 U.S.C. § 1605 or if waived
by foreign government
Other Accountability Statutes
State Law
Person may have a claim against state or
local officials under state tort law or state
civil rights law
Attorneys’ Fees
Contingency Fees




FTCA: limits on recovery of contingency
fees pursuant to 28 U.S.C. § 2678:
Maximum of 20% of recovery where claims
resolved/settled before litigation
Maximum of 25% of recovery where claims
resolved after initiation of litigation
Bivens/ §1983: state law governs
percentage of recovery in contingency fee
cases
Attorneys’ Fees
Recovery from Federal Defendants
Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412, 5 U.S.C. § 504, provides
for attorneys’ fees & costs to successful
plaintiffs in civil suits, for costs and fees
expended for prevailing claims.
Limitations in damages cases make EAJA
most useful in injunctive relief claims.
Attorneys’ Fees
Fee Agreements

Retainer should specify type of fee
arrangement with client.

Fee agreement should contemplate that
defendants are not barred from
demanding fee waiver in exchange for
settlement, Evans v. Jeff D., 475 U.S. 717
(1986).