1. Suing the Federal Government
FTCA and Bivens

2. History US Constitution
"No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." U.S. Const. art. I, § 9.
Traditional Sovereign Immunity
Takings Exception
“…nor shall private property be taken for public use, without just compensation. 5th Amd.
All compensation had to be by private bills
What problems do private bills pose?

3. Formation of the 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

4. Court of Claims Jurisdiction
Contracts, tax refunds, takings
Not torts
Recently some court of claims judges are transforming takings law into tort law.
After the failure of the FTCA case involved MRGO, a Court of Claims judge used the same evidence to find a taking.
This is still in progress

5. Federal Tort Claims Act
Went into effect in 1945
All torts were private bills before then
Tied up Congress and encouraged corruption
Provides an administrative compensation for certain tort injuries.
Looks to the law of the state where the tort occurred for the standards for the tort
We will discuss FTCA procedure later.

6. Dalehite v. U.S., 346 U.S. 15 (1953) Texas City Disaster
Why is the TVA producing ammonium nitrate fertilizer?
What are other uses of ammonium nitrate?
Why are we shipping fertilizer to Europe post World War II?

7. 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.
LNG terminals?
The District Court accepted this theory.

8. 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.
Classic private tort negligence claims.

9. 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.

10. What did the Court say about Discretion?
So we know that the draftsmen did not intend it to relieve the Government from liability for such common-law torts as an automobile collision caused by the negligence of an employee of the administering agency. We know it was intended to cover more than the administration of a statute or regulation because it appears disjunctively in the second phrase of the section. The "discretion" protected by the section is not that of the judge -- a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law.

11. 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?

12. The United States Supreme Court Ruling
The District Court's holding that the Coast Guard and other agencies were negligent in failing to prevent the fire by regulating storage or loading of the fertilizer in some different fashion is like his specific citations of negligence discussed above. They are classically within the exception. "The power to adopt regulations or bylaws for the preservation of the public health, or to pass ordinances prescribing and regulating the duties of policemen and firemen are generally regarded as discretionary, because, in their nature, they are legislative." The courts have traditionally refused to question the judgments on which they are based.

13. The United States Supreme Court Ruling
What was the dissent concerned about?
What are the implications of limiting the liability of the federal government?
Why was the majority reticent to make the leap from no liability to full tort liability?

14. Allen v. United States, 816 F.2d 1417 (10th Cir. 1987)
In 1950 the AEC chose an area in Nevada as a testing site. The President approved this choice. Thereafter, between 1951 and 1962, eight series of open-air tests were conducted, with the President approving each series of tests. Over one hundred atomic bombs were detonated.
Each test explosion was executed according to detailed plans which the AEC officially reviewed and adopted. Separate plans for protecting the public, and for providing the public with appropriate information, were also adopted by the AEC.

15. What are the Plaintiffs’ Claims?
At trial, as a basis for governmental liability, plaintiffs singled out the alleged failure of the government, especially of the Radsafe Officers and the Test Information Officers, to fully monitor offsite fallout exposure and to fully provide needed public information on radioactive fallout.
What would have been the effect if the government has told everyone that they were going to be exposed to dangerous, persistent contamination with radioactive material?

16. What Facts did the Trial Court Find?
...the trial court found that the people who designed the downwind safety program deviated from optimum practices based on the best available scientific knowledge. ...the trial court found the following deviations in the plans which would clearly support liability for injury under standard tort analysis as applied by the trial court:
the decision to monitor randomly rather than on a "comprehensive, person-specific basis,“
decisions not to use thyroid or whole body counters
decisions regarding the limited extent of urine, fecal, and blood sampling
the decision not to test milk samples "in order to avoid arousing public concern,“
the decisions to forego internal fallout assessment from inhalation of fallout particles
decisions regarding the extent of follow-up monitoring in downwind communities
et.c. for several more findings.

17. What was the District Court’s Legal Holding?
Again, on a fully supported record, the trial court found that these departures from accepted safety standards were the proximate cause of suffering and death from cancer in many of the plaintiffs.
Under the then-available legal precedents, the trial court reasonably concluded that the FTCA showed Congress's intent that the Government, which benefited from the testing, should bear these particular costs.
How was this different from Dalehite?

18. What was the Government’s Defense?
Did the government deny that they caused any injuries?
Was this an accident?
What did the government intend to do?
What was the public policy trade-off?
National security?
Cost-benefit?
How does this presage Mathews?
Is intentionally putting the public at risk, or even injuring the public, a protected discretionary function?

19. The Supreme Court Ruling on Liability
In the instant case, no evidence was presented of any act or omission of the AEC or its employees that clearly contravened a specific statutory or regulatory duty, or that exceeded statutory or regulatory authority. There was no evidence, for example, that the Test Information Officer failed to release information he was required to give out, or that the Radsafe Officer failed to take a specific radiation measurement that had been decided upon. Plaintiffs' entire case rests on the fact that the government could have made better plans. This is probably correct, but it is insufficient for FTCA liability.
What would be the result if the agency had violated a statute or regulation?

20. Is there a Duty to Protect the Public?
It is irrelevant to the discretion issue whether the AEC or its employees were negligent in failing to adequately" protect the public. When the conduct at issue involves the exercise of discretion by a government agency or employee, 2680(a) preserves governmental immunity "whether or not the discretion involved be abused." For better or worse, plaintiffs here "obtain their 'right to sue from Congress [and] necessarily must take it subject to such restrictions as have been imposed.'"

21. The Supreme Court Ruling on Policy
Our decision here adheres to the principle enunciated by the Supreme Court of broad sovereign immunity. An inevitable consequence of that sovereign immunity is that the United States may escape legal responsibility for injuries that would be compensible if caused by a private party. There remain administrative and legislative remedies; we note the express authorization under 42 U.S.C. 2012(i) for the government to make funds available for damages suffered by the public from nuclear incidents. Nonetheless, judicial reluctance to recognize the sometimes harsh principle of sovereign immunity explains much of the tangle of the prior FTCA cases.
What is the path for compensation when you are injured by government policy?

22. Background on Vaccine Liability

23. 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?

24. 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

25. Post Cutter Incident Undermined confidence in vaccines
A made vaccine cases easier to prove
There was some natural spread from Sabin virus

26. Swine Flu
flu season
New strain of flu that was thought to resemble the 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

27. 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

28. 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?

29. 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?

30. 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?

31. Epilog National Vaccine Injury Compensation Act Autism Scam
Based on fraudulent research
Tries to get around the act by blaming the preservative
Attacks on adult vaccines like anthrax
Undermined the mandatory immunization system

32. FTCA Procedure

33. 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

34. 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.
[When the FTCA was passed, dead people were not worth much in many states.]

35. Exceptions to the FTCA - § 28 USC Sec 2680
(h) originally did not include this language:
Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

36. 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 not covered by the FTCA.
Bivens is a personal action, not an official capacity action.
No vicarious liability. You must show supervisors know and support the actions that cause the injury.

37. 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 for intentional torts?
Remember – there are other employees whose intentional torts are not covered by the FTCA.
A recent case allows a Bivens action against federal medical personnel in a detention center for conscious indifference to a prisoner’s medical needs.

38. 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.

39. 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.

40. 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.

41. Suing the Military Exception to FTCA
(j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war.
Civilians – can sue subject to this exception
Activity duty military
Feres v. U.S., 340 U.S. 135 (1950)
Cannot sue – military provides its own comp system
Would undermine military discipline

42. Tort Claims in Louisiana
Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003)

43. Sovereign Immunity in Louisiana
The 1974 Louisiana Constitution (Edwin Edwards Constitution) abolished sovereign immunity for the state and its political subdivisions.
Assuming there is no LATCA, how is the situation different from the feds?
What is the rule when you are construing a statute that establishes immunity, as opposed to a statute in derogation of immunity?

44. La. R.S. 9:2798.1 – LA Tort Claims Act
Louisiana Revised Statute 9:2798.1(B) (DFE):
Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.
Section D of La. R.S. 9: explains that its purpose "is not to re-establish any immunity based on the status of sovereignty but rather to clarify the substantive content and parameters of application of such legislatively created codal articles and laws and also to assist in the implementation of Article II of the Constitution of Louisiana."

45. Exceptions to the DFE in the LATCA
C. The provisions of Subsection B of this Section are not applicable:
(1) To acts or omissions which are not reasonably related to the legitimate governmental objective for which the policymaking or discretionary power exists; or
(2) To acts or omissions which constitute criminal, fraudulent, malicious, intentional, willful, outrageous, reckless, or flagrant misconduct.
Remember that the FTCA DFE includes abuse of discretion – is this different in LA?

46. What is a Discretionary Function?
Under the FTCA, the courts use a very broad notion of discretionary function because it is a statute in derogation of immunity.
Under state TCAs, including LA, the courts use a much more narrow notion and there are endless fights about what is covered.
Clearing ice from roads is not covered.
Greene v. Succession of Alvarado, (La. App. 1 Cir. 12/27/16), 210 So. 3d 321

47. Procedure for Filing an LA Tort Claim
In general, you just go to court, you do not have to file an administrative demand.
Medical malpractice cases against governmental entities have to comply with the general LA legislation on medical malpractice, which does require notice and an administrative process for screening the cases.

48. Can You Collect a Judgment?
(C) Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered. (emphasis added)

49. Raw Oysters What do oysters eat? Hepatitis A - traditional
Liver disease
some die
vibrio vulnificus - the new threat
acute liver disease and failure
various other nasty vibrios
This is why God made deep fat fryers

50. Tort Standards for Oysters
The foreign/natural distinction
Cherry pits, chicken bones
The consumer expectations test
Is it something that a reasonable consumer would expect to be in the food?
This is the prevailing view.
Do consumers expect vibrio vulnificus or hepatitis A?
What about dying from fugu - puffer fish - sushi?
Why do the oyster producers and restaurants want a statutory warning?

51. State Warning
THERE MAY BE A RISK ASSOCIATED WITH CONSUMING RAW SHELLFISH AS IS THE CASE WITH OTHER RAW PROTEIN PRODUCTS. IF YOU SUFFER FROM CHRONIC ILLNESS OF THE LIVER, STOMACH OR BLOOD OR HAVE OTHER IMMUNE DISORDERS, YOU SHOULD EAT THESE PRODUCTS FULLY COOKED.
What are the limitations of this warning for establishing assumption of risk?

52. Gregor v. Argenot Great Central Insurance Co. , 851 So. 2d 959 (La
What happened to plaintiff?
Preexisting illness?
What if he did not have a preexisting illness?
Where was the sign posted?
Where did plaintiff eat?
Did he see the sign?

53. The Claims Who did the plaintiff sue?
What was the comparative fault assessment?
What is the plaintiff's negligence theory against the state?
What is the causation issue?
Why do you think DHH assessed so much fault?

54. The State’s DFE Claim
DHH argues that the testimony and evidence establishes that the intent of the drafters of § 23:006-4 was to give DHH inspectors discretion when inspecting restaurants for compliance with § 23: DHH argues that the actual words of the regulation offer a variety of methods for compliance, which requires the use of judgment or choice--i.e. "Discretion." It maintains that the first sentence of the regulation indicates three specific choices (signs, menu notices, or table tents), and a fourth general alternative if signs, menu notices, or table tents are not appropriate in a particular situation (other clearly visible messages)

55. Where Does the Warning Have to be Posted?
Section 23:006-4 of the Sanitary Code requires that all "establishments that sell or serve raw oysters must display" a prescribed warning "at point of sale." The establishment has discretion in determining what method may be used to convey the warning because the warning can be conveyed by a sign, menu notice, table tent or other clearly visible message.
What is the critical language?

56. Court's Analysis How is this case like Berkowitz?
What is the role of the regulation?
How is the agency arguing that the reg does not apply?
The Court's use of Berkowitz is confusing.
It rejects the Fowler's court's reliance on Berkowitz because the LA statute is different
It then appears to use an analysis that is consistent with Berkowitz and other FTCA cases in its resolution of the case.
Berkovitz
25% of the oysters were consumed at the table.

57. What was the Real Negligence of DHH?
Did it really allow inspectors to decide what point of sale meant?
“DHH had a mandatory duty to properly enforce the sanitary code. La. R.S. 40:4A. We find that DHH was negligent in failing to properly train its sanitarians and failing to properly provide them with interpretations of the Sanitary Code terminology, specifically as to what the term "point of sale" means.”
Was the restaurant also liable?
Bad oysters or bad warning?
How did the court modify the allocation of fault?