Suing the Federal Government

FTCA

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?

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

Federal Tort Claims Act

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

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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

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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.

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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.

Form 95 - FTCA claims form Alternatives to Form 95

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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.

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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 be prescribed.

Suing the Military

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)

Texas City Disaster http://

www.texascity-library.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

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

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

(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?

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?

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

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

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?

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

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Flood Control Act of 1928

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?

How do you get into Court in Flood Act Cases?

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)

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?

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

Can plaintiff’s claim go forward? Why might weather and river level forecasting

also be very hard to beat under the discretionary authority defense?