Suing the Federal Government
FTCA
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
Provided an administrative compensation process for
tort claims.
 Looks to the law of the state where the tort
occurred for the standards for the tort
Once the agency has acted, the agency decision can
be appealed to federal court.
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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Suing the Military
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Exception to FTCA
 (j) Any claim arising out of the combatant activities
of the military or naval forces, or the Coast Guard,
during time of war.
Civilians – can sue subject to this exception
Activity duty military
 Feres v. U.S., 340 U.S. 135 (1950)
 Cannot sue – military provides its own comp
system
 Would undermine military discipline
Dalehite v. U.S., 346 U.S. 15 (1953)
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Texas City Disaster
 http://www.texascitylibrary.org/disaster/index.php
Why is the TVA producing ammonium nitrate
fertilizer?
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 did the Court say about Discretion?
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So we know that the draftsmen did not intend it to relieve
the Government from liability for such common-law torts as
an automobile collision caused by the negligence of an
employee of the administering agency. We know it was
intended to cover more than the administration of a statute
or regulation because it appears disjunctively in the second
phrase of the section. The "discretion" protected by the
section is not that of the judge -- a power to decide within
the limits of positive rules of law subject to judicial review.
It is the discretion of the executive or the administrator to
act according to one's judgment of the best course, a
concept of substantial historical ancestry in American law.
What is the Intent of this Provision?
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Why did Congress 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 (Chevron)?
What is the remedy for bad decisions?
The United States Supreme Court Ruling
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The District Court's holding that the Coast Guard and other
agencies were negligent in failing to prevent the fire by
regulating storage or loading of the fertilizer in some
different fashion is like his specific citations of negligence
discussed above. They are classically within the exception.
"The power to adopt regulations or bylaws . . . for the
preservation of the public health, or to pass ordinances
prescribing and regulating the duties of policemen and
firemen . . . are generally regarded as discretionary,
because, in their nature, they are legislative." The courts
have traditionally refused to question the judgments on
which they are based.
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?
Is there a Duty to Protect the Public?
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It is irrelevant to the discretion issue whether the
AEC or its employees were negligent in failing to
adequately" protect the public. When the conduct at
issue involves the exercise of discretion by a
government agency or employee, 2680(a) preserves
governmental immunity "whether or not the
discretion involved be abused." For better or worse,
plaintiffs here "obtain their 'right to sue from
Congress [and] necessarily must take it subject to
such restrictions as have been imposed.'"
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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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?
National Mfg. Co. v. US, 210 F.2d 263 (8th
Cir. 1954)
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What was plaintiff’s negligence claim?
Did the FTCA preempt 702 of the FCA?
What did court say was the past policy?
 "By a long line of cases it has definitely been settled that
neither the government nor its instrumentalities would
have to respond in damages arising in the development
and maintenance of waters for purposes of navigation
and flood control, including claims for negligence. It
may be noted that this position is not because of
governmental immunity from suit but on the grounds of
public policy."
What did the Court say about Repeal?
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The Tort Claims Act contains no expressions which
indicate affirmatively that Congress intended to depart from
the established prohibition of federal liability for any
damages from or by floods or flood waters at any place.
The imposition of such a liability could not be justified in
the face of that positive prohibition without some clear
mandate from Congress and none such is to be found in
the Act. As stated by the Supreme Court in Feres v. United
States, 340 U.S. 135, 146, 71 S. Ct. 153, 159, 95 L. Ed. 152, in
rejecting other negligence claims under the Tort Claims
Act, "We cannot impute to Congress such a radical
departure from establishes law in the absence of express
congressional command."
Consequences of FCA Survival
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Can plaintiff’s claim go forward?
Why might weather and river level forecasting
also be very hard to beat under the discretionary
authority defense?