Suing the Federal Government

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 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

Went into effect in 1945 All private bills before then Allowed tort claims

Looks to the law of the state where the tort occurred for the standards for the tort

Significant exceptions http://

biotech.law.lsu.edu/cases/immunity/ftca_exceptions.htm

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? Why were they producing it during the war?

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. 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 Statute

(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?

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

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

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)

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

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

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

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

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

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)

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

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

Bird Flu

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)

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 for her tort case and for the FTCA defense?

Does LA Law impose a duty on employers to prevent the spread of STIs? How is this different from vicarious liability? Why is vicarious liability a problem for STIs?

Can the Government Be Liable When the Case Involves Battery?

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 and

the drunk assaulted people Legal results

Is an assault covered by the FTCA? What about failure to restrain? Is this like Allen or Berkovitz?