Suing the Federal Government

1. Suing the Federal Government

2. 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?

3. Court of Claims • 1855 • 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 • Contracts, tax refunds, takings - not torts

4. Federal Tort Claims Act • Went into effect in 1945 • All private bills before then • Waives sovereign immunity for the delineated claims against the federal government

5. Causes of Action under the FTCA - Sec 2672 • The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, 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

6. 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.

7. Exceptions to the FTCA - § 28 USC Sec 2680 • http://biotech.law.lsu.edu/cases/immunity/ftca_exceptions.htm

8. 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 would you to use Bivens rather than state tort remedy? • Is it the same rationale for using §1983 rather than a state lawsuit?

9. 2680(h) - intentional torts by police officers - revised after Bivens • Must be based on violations of state law • Has become a substitute for a Bivens action for covered officers if the offense also sounds in state law • Only covers law enforcement officers • A recent case allows a Bivens action against federal medical personnel in a detention center.

10. 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.

11. 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.

12. Filing a Claim is Jurisdictional • 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 not be prescribed.

13. The Discretionary Function Defense - Sec 2680 • (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.

14. 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 judicial review of rules and adjudications? • What is the remedy for bad decisions? • What about compensation?

15. Allen v. United States, 816 F.2d 1417 (10th Cir. 1987) - The Atom Bomb Case • AEC tested atomic bombs in Nevada • Fallout drifted out of the test area and into populated areas • There was evidence that the local population was harmed • After decades, the plaintiffs won at the district court • On appeal, the AEC argued that it had made a policy choice that exposing the population to fallout was justified by the need to do the testing • Is this a proper discretionary function? • How is this different from a traditional torts case?

16. Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988) • What was the product in Berkovitz? • What did the FDA regulations require the FDA to do to assure the safety of the polio vaccine? • What did the plaintiffs claim the FDA failed to do? • What was the FDA’s defense?

17. 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 in Varig Airlines?

18. 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? • LA follows Berkovitz

19. Can the Government Be Liable When the Case Involves Battery of a Third Person? • Sheridan v. United States, 487 U.S. 392 (1988) • Government assumed a duty to restrain an intoxicated, armed serviceman • Government did not carry out this duty properly and the drunk assaulted people • Legal results • Is a third party assault covered by the FTCA? • What about failure to restrain? • Is this like Allen or Berkovitz?

20. Tort Claims in Louisiana

21. 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

22. 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?

23. State 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.

24. 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?

25. 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?

26. The Claims • Who did the plaintiff sue? • What was the comparative fault assessment? • What is the plaintiff's negligence theory against the state? • What is the causation issue? • Why was DHH assessed so much fault? • What is the state's defense? • How does plaintiff attack this defense?

27. State Immunity • Sovereign immunity was abolished • How does this change the construction of the immunity provision as compared to the construction of the FTCA? • The Statute: • "Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties. "

28. Court's Analysis • The Court's use of Berkowitz is confusing. • It rejects the Fowler's court's reliance on Berkowitz because the LA statute is different • It then appears to use an analysis that is consistent with Berkowitz and other FTCA cases in its resolution of the case • How is this case like Berkowitz? • What is the role of the regulation? • How is the agency arguing that the reg does not apply?

29. What was the Real Negligence of DHH? • Did it really allow inspectors to decide what point of sale meant? • What does the court assume - probably correctly - about what the inspector did? • What was the negligence by the department? • Was the restaurant also liable? • Bad oysters or bad warning? • How did the court modify the allocation of fault?

30. Public Health Risks • Does the health department have a duty to warn about risks it knows of? • What if it warns physicians, but not the public? • Should it be liable for not abating a risk to the public? • What about testing the oyster beds? • What did the health department find about the origin of the oysters in this case that should worry you?

31. Hepatitis in Bathhouses • Data from health studies in the mid-1970s showed a huge risk of hepatitis b in bathhouses • Should the health department have warned the public? • Should they have closed down the bathhouses? • What about AIDS in the bathhouses? • What if the statute says the government shall protect the public? • What does the public assume from government inaction?