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 • Allowed tort claims • Looks to the law of the state where the tort occurred for the standards for the tort • We will discuss the procedure under the FTCA later.

5. 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?

6. 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.

7. 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.

8. 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.

9. 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?

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

11. 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?

12. Background on Vaccine Liability

13. 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?

14. 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

15. 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

16. 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

17. 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

18. 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?

19. 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?

20. 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?

21. 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

22. FTCA Procedure

23. 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

24. 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.

25. 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.

26. 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?

27. 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.

28. 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.

29. 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.

30. 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.