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?
Court of Claims
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1855
Administrative tribunal to review claims and make
recommendations to Congress
Later Congress made the decisions binding
 Not an Art II court
 Like bankruptcy courts
Appeal to the Federal circuit and the United States
Supreme Court
Contracts, tax refunds, takings - not torts
Federal Tort Claims Act
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Went into effect in 1945
All private bills before then
Allowed tort claims
Significant exceptions
 http://biotech.law.lsu.edu/cases/immunity/ftca_
exceptions.htm
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?
 Why were they producing it during the war?
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 Statute
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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) - The 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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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?
Polio Vaccine Cases
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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
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 vaccine litigation
 Real injuries, but a real benefit
Post Cutter Incident
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Undermined confidence in vaccines
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
Berkovitz happened in this climate - 1979
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?
Bird Flu
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What are the legal issues?
How can the feds deal with these?
What about rolling an experimental vaccine?
What if the feds make you take the experimental
vaccine?
 What does Jacobson tell us?
And it harms you?
 What does Allen tell us?
Leleux v. United States, 178 F.3d 750 (5th
Cir. 1999)
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What are the facts?
What disease did she claim she caught?
Did she consent to the sex?
 Why is that critical to an FTCA claim?
Did she consent to the disease?
 Why does that cause problems with the FTCA?
Can the Government Be Liable When the
Case Involves Battery?
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Sheridan v. United States, 487 U.S. 392 (1988)
 Government assumed a duty to restrain a an
intoxicated, armed serviceman
 Government did not carry out this duty properly
Did the case depend on the serviceman being a
government employee?
 What if he had been a civilian?
Contrast Leleux with Sheridan
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If the recruiter were not a government employee,
would plaintiff have case against the government?
How does this differ from Sheridan?