Suing the federal government
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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?

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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?


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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


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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


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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?


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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.


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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.


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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.


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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?


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The United States Supreme Court Ruling

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


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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?


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Berkovitz by Berkovitz v. U.S., 486 U.S. 531 (1988) Clears up the Cloud

  • 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?


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Polio Vaccine Cases Clears up the Cloud

  • 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?


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Cutter Incident Clears up the Cloud

  • 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


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Post Cutter Incident Clears up the Cloud

  • 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


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Swine Flu Clears up the Cloud

  • 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


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Swine Flu - Legal Consequences Clears up the Cloud

  • 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


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Varig Airlines (in Berkovitz) Clears up the Cloud

  • 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?


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Agency Liability Clears up the Cloud

  • 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)


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Bird Flu Clears up the Cloud

  • 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?


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Leleux v. United States, 178 F.3d 750 (5th Cir. 1999) Clears up the Cloud

  • 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?


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Can the Government Be Liable When the Case Involves Battery? Clears up the Cloud

  • 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?


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