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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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  • 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
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
Federal Tort Claims Act
  • Went into effect in 1945
  • All private bills before then
  • Allowed tort claims
  • Significant exceptions
dalehite v u s 346 u s 15 1953
Dalehite v. U.S., 346 U.S. 15 (1953)
  • Texas City Disaster
  • 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 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
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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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?