Suing for Damages: National Security Claims

1. Suing for Damages for Claims Arising from National Security Matters

2. Non-Damage Claims • Injunctive relief – most of what we seen in cases challenging national security actions. • Brought under the Administrative Procedure Act and/or the Constitution. • Injunctions are prospective, to stop future wrongdoing. • Why should the courts favor injunctions over damage remedies?

3. Private Individuals and Foreign Governments

4. Getting Jurisdiction • If there is a nexus to the United States, you can get into court through ordinary tort law. • This is subject to the national security override we saw in Dames v Moore if the President finds that a judgement against a foreign government or foreign national interferes with foreign policy. • If there is no nexus with the United States that will suffice under tort law, then you need a statute.

5. Statutes Granting Jurisdiction to Sue Foreigners over National Security Issues • Antiterrorism Act, 18 U.S.C. §2333 (2012 & Supp. V 2017) (creating a civil damages claim for U.S. nationals injured by reason of an act of international terrorism) • Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. §1350 note (2012)) (providing a civil remedy for victims of torture or extrajudicial killing) • Alien Tort Statute, 28 U.S.C. §1350 (2012)

6. Claims for Damages under FISA • Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §1810 (2012) (creating a cause of action for individuals who are “aggrieved” by certain unlawful searches under FISA). • This appears to be limited to suing individuals: • The threshold issue in this appeal is whether the district court erred in predicating the United States' liability for money damages on an implied waiver of sovereign immunity under § 1810. It is well understood that any waiver of sovereign immunity must be unequivocally expressed. Section 1810 does not include an explicit waiver of immunity, nor is it appropriate to imply such a waiver. Al-Haramain Islamic Found., Inc. v. Obama, 705 F.3d 845, 848 (9th Cir. 2012)

7. Suing the United States for Money Damages

8. Constitution Claims for Damages • Takings under the 5th Amendment. • Money owed through contracts with the United States. • May be difficult to collect if you need classified information to prove the contract exists. • Originally paid by special bills in Congress.

9. Court of Claims • 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. • Just ruled on the last of the Katrina Cases last fall.

10. Tort Damage Claims • 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. • No jurisdiction to sue in court. • All compensation had to be by private bills • What problems do private bills pose?

11. Federal Tort Claims Act

12. Federal Tort Claims Act • 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

13. Causes of Action under the FTCA - Sec 2672 • 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

14. Limitations on Liability - Sec 2674 • 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.

15. Exceptions to the FTCA - § 28 USC Sec 2680 • http://biotech.law.lsu.edu/cases/immunity/ftca_exceptions.htm • (h) originally did not include the provision for law enforcement officers. • The court has also held that active duty military may not sue under the FTCA - Feres v. United States, 340 U.S. 135, 146 (1950).

16. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) • The Court in Bivens recognized the injustice of allowing compensation for negligent injuries cause by government employees, but not for those caused by intentional wrongdoing. • Bivens is a direct action against federal employees for violations of constitutional rights • Bivens is a personal action, not an official capacity action. • If you are in the course and scope, you are immune.

17. Qualified Immunity: Harlow v. Fitzgerald, 457 U.S. 800 (1982) • 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.

18. The Policy Rationale for Qualified Immunity • 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?

19. 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?

20. Problems with Bivens in National Security Cases • Proving that high level officials had direct knowledge and involvement in the actions. • Proving that low level officials were not operating under orders or under the impression that they what they were doing was legal. • What would be the effect of the Office of Legal Counsel memos authorizing waterboarding and other torture on Bivens claims?

21. FTCA Amendments after Bivens • FTCA now covers certain intentional actions by police officers. • Has become a substitute for a Bivens action for covered officers. • Over the past decade the United States Supreme Court has been reticent to extend Bivens from the existing precedent and has said that it is unlikely to do so in the future.

22. FTCA Procedure

23. 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.

24. 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.

25. Filing a Claim is Jurisdictional • 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.

26. 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.

27. What is the Intent of this Provision? • 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?

28. Breadth of Discretionary Authority • If it is intentional, it is covered as long as the government action does not violate the law or a legally binding regulation. • Attorneys often forget this and try to bolster damages by proving bad intent, as they would in a private tort claim. • Nuclear fallout • Flooding New Orleans