Suing the federal government l.jpg
Advertisement
This presentation is the property of its rightful owner.
1 / 22

Suing the Federal Government PowerPoint PPT Presentation

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?

Download Presentation

Suing the Federal Government

An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -

Presentation Transcript


Suing the federal government l.jpg

Suing the Federal Government


History l.jpg

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 l.jpg

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 l.jpg

Federal Tort Claims Act

  • Went into effect in 1945

  • All private bills before then

  • Allowed tort claims

  • Significant exceptions

    • http://biotech.law.lsu.edu/cases/immunity/ftca_exceptions.htm


Dalehite v u s 346 u s 15 1953 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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 l.jpg

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

    • (added 31 Oct)


Bird flu l.jpg

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 l.jpg

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 with the FTCA?


Can the government be liable when the case involves battery l.jpg

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 do you argued that can put this case under the FTCA?

    • Is this like Allen or Berkovitz?


  • Login