Suing the Government

1. Suing the Government

2. 42 USC 1983

3. 42 USC § 1983. Civil action for deprivation of rights • 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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. ...

4. Background • When were 42 USC 1981, et seq passed? • Who were they intended to protect? • What sort of color of state action was Congress thinking about? • Now state action may be private contractors carrying out state policy • Does not apply to political subdivisions of the state such as cities.

5. The Constitutional Violation • All 1983 actions are torts, but not all torts are 1983 actions. • They must rise to constitutional status • Killing, beating, cruel and unusual punishment, and other serious, intentional actions. • There is a de minimis threshold. • Ordinary negligence torts are covered by Tort Claims Acts.

6. Who Can You Sue? • Individuals • Personal capacity • Official capacity - the employer also has to pay • No vicarious liability • You have to show the action was part of official policy or known behavior to make a 1983 claim against the governmental employer. • Were the police in the Danziger Bridge case following NO Police policy?

7. 11th Amendment • Can sue state officials in their personal capacity, but cannot sue them in their official capacity. • Thus, in theory the state is not responsible for judgments against state employees under 1983, but all states indemnify them if it is in their official capacity. • States may waive 11th amendment immunity in several ways, including by buying insurance.

8. What Can You Get? • Money damages from local government entities and from individuals. • Injunctions to stop unconstitutional behavior by the state - no money damages because of the 11th amendment. • Can be contempt of court fines for not correcting the enjoined conditions. • The main way to enforce state prison orders.

9. Defenses to Personal Claims • Absolute immunity - legislators, judges, prosecutors (only for their direct prosecutorial duties). • Qualified immunity - everyone else. • Next slide

10. 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.

11. 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?

12. 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?

13. Federal Tort Claims Act

14. History • 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?

15. 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

16. 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

17. FTCA Procedure

18. 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

19. 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.

20. 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.

21. Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) • Bivens recognized that there is a direct action against federal employees for violations of constitutional rights • Bivens is a personal action, not an official capacity action • Why weren't Bivens actions originally covered by the FTCA? • Why might you use Bivens rather than state tort remedy?

22. 2680(h) - intentional torts by police officers - revised after Bivens • Has become a substitute for a Bivens action for covered officers. • When would a Bivens action still be possible? • When would an ordinary tort action be possible? • A recent case allows a Bivens action against federal medical personnel in a detention center.

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. Dalehite v. U.S., 346 U.S. 15 (1953) • 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?

27. The General Claim • 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.

28. Specific Findings by the Trial Court • 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.

29. 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.

30. 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?

31. The United States Supreme Court Ruling • What did the United States Supreme Court rule about the government's actions in this case?

32. Allen v. United States, 816 F.2d 1417 (10th Cir. 1987) - This Clears up the Cloud • 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?

33. Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988)

34. Background on Vaccine Liability

35. Polio Vaccine • 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?

36. Cutter Incident • During the first wave of vaccinations when the polio 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 modern vaccine litigation • Real injuries, but a real benefit

37. Post Cutter Incident • Undermined confidence in vaccines • 1965 - 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

38. Swine Flu • 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

39. Swine Flu - Legal Consequences • 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 • Later work found no excess incidence of Guillian-Barre • Berkovitzincident happened in this climate - 1979

40. Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988) • 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?

41. Varig Airlines (in Berkovitz) • 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 inVarig Airlines?

42. Agency Liability • 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?

43. Epilog • National Childhood Vaccine Injury Compensation Act • Autism Scam • Based on fraudulent research • Tries to get around the act by blaming the preservative • Attacks on adult vaccines like anthrax • Anti-vaccine forces have undermined the vaccine law system

44. Pandemic Flu Vaccines • What are the legal issues? • How can the feds deal with these? • What about rolling out an experimental vaccine? • What if the feds make you take the experimental vaccine? • And it harms you? • What does Allen tell us? • Public Readiness and Emergency Preparedness Act • Creates broad immunity for government and private contractors

45. Tort Claims in Louisiana

46. Raw Oysters • What do oysters eat? • Hepatitis A - traditional • Liver disease • some die • vibrio vulnificus - the new threat • acute liver disease and failure • various other nasty vibrios • This is why God made deep fat fryers

47. DHS Mandated Warning • THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN PRODUCTS. IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY COOKED.

48. Where Does the Warning Have to be Posted?? • Section 23:006-4 of the Sanitary Code requires that all "establishments that sell or serve raw oysters must display" a prescribed warning "at point of sale." The establishment has discretion in determining what method may be used to convey the warning because the warning can be conveyed by a sign, menu notice, table tent or other clearly visible message. • What is the critical language?

49. The Oyster Industry and Warnings • Did they support the reporting regulations? • What was their concern? • What would you tell them as a products liability lawyer? • How did their position affect the final form of the law? • What should it really say? • Is this like fugu - puffer fish - sushi?

50. Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003) • What happened to plaintiff? • Preexisting illness? • What if he did not have a preexisting illness? • Where was the sign posted? • Where did plaintiff eat? • Did he see the sign?