Chapter 11: Suing the Government: Chapter 11: Suing the Government: Tort Liability for the Gov’t. and Its OfficialsTort Liability for the Gov’t. and Its Officials

Basic Issues Basic Issues A. Size & scope of modern government give rise to A. Size & scope of modern government give rise to myriads of ways citizens and groups can suffer harms myriads of ways citizens and groups can suffer harms at its hands [actually the hands of government at its hands [actually the hands of government employees]. Do they have ability to seek redress of employees]. Do they have ability to seek redress of grievances, i.e., protection from continuing harms grievances, i.e., protection from continuing harms and/or compensation for past harms?and/or compensation for past harms? B. Under what circumstances and to what extent can B. Under what circumstances and to what extent can government be held accountable for the wrongful acts government be held accountable for the wrongful acts of its officials & employees? of its officials & employees?

C. Basic concept of tort liability: plaintiff must show C. Basic concept of tort liability: plaintiff must show 1. s/he suffered a harm to an interest protected by 1. s/he suffered a harm to an interest protected by

law law and that can be reasonably traced to and that can be reasonably traced to (blamed on) (blamed on)

2. failure of defendant to exercise reasonable care 2. failure of defendant to exercise reasonable care (a) by an (a) by an overt actovert act of recklessness OR of recklessness OR (b) a negligent (b) a negligent failure to actfailure to act3. which has resulted in a specific $ amount of 3. which has resulted in a specific $ amount of injury injury

The Origins of Conflicting Doctrines

A. Sovereign Immunity for the State1. British common law tradition: “the king can

do no wrong” was really a question of relative authority and jurisdiction, i.e., if the king is sovereign, no court can exercise jurisdiction over him since jurisdiction implies superiority of power.

2. How did the doctrine get in to U.S. law?a) “one of the mysteries of legal

evolution”b) U.S. v Lee (1882) – “. . . the principle

has never been discussed or the reasons for it given, but it has always been treated as an established doctrine.”

3.Rationale for the doctrine3.Rationale for the doctrinea) private claims could bankrupt gov’t. or a) private claims could bankrupt gov’t. or

at at least cause diversion of funds needed for least cause diversion of funds needed for other public purposesother public purposesb) need for efficiency – tort suits would b) need for efficiency – tort suits would

bog bog down gov’t. in performance of its duties down gov’t. in performance of its duties or or impose a climate of fear/timidity for fear impose a climate of fear/timidity for fear of of being suedbeing sued

c) better for individuals to suffer loss c) better for individuals to suffer loss than than society to be penalized or society to be penalized or inconveniencedinconvenienced

4. What’s the problem with this doctrine in the 4. What’s the problem with this doctrine in the U.S. context? U.S. context?

The Origins of Conflicting DoctrinesThe Origins of Conflicting DoctrinesA. A. Sovereign ImmunitySovereign Immunity for the State for the State

B. B. Full LiabilityFull Liability for Government Officials for Government Officials1. British common law tradition1. British common law tradition2. What’s the problem?2. What’s the problem?

a) How do you separate the individual a) How do you separate the individual official in the performance of his official in the performance of his

duties duties from the abstraction called “the from the abstraction called “the state”state”

b) The state’s immunity in actual fact b) The state’s immunity in actual fact extends to the official acting on behalf extends to the official acting on behalf of the state and under its authorityof the state and under its authority

Softening the Impact of Sovereign ImmunitySoftening the Impact of Sovereign Immunity A. Congressional action in 19A. Congressional action in 19thth century century

1. Court of Claims Act (1855) – “private bills”1. Court of Claims Act (1855) – “private bills”2. 2. § 1983 of Civil Rights Act of 1871§ 1983 of Civil Rights Act of 1871

a) aimed at state officials acting “under a) aimed at state officials acting “under color” color” of state law of state law

b) sought to reinforce the 14b) sought to reinforce the 14thth Am. Am.c) initially narrow scope of interpretation c) initially narrow scope of interpretation

2. Tucker Act (1887)2. Tucker Act (1887)a) waiver of sovereign immunitya) waiver of sovereign immunityb) Court of Federal Claims renders b) Court of Federal Claims renders

judgments judgments on claimson claims

Softening the Impact of Sovereign ImmunitySoftening the Impact of Sovereign Immunity A. Congressional action in 19A. Congressional action in 19thth century century

B. Federal Tort Claims Act (1946) B. Federal Tort Claims Act (1946) 1. 1. constitutes a waiver of sovereign immunityconstitutes a waiver of sovereign immunity2. 2. imposes liability on the U.S. for the acts of its imposes liability on the U.S. for the acts of its

employees in the same manner and to the same extent as a in the same manner and to the same extent as a private private individual under like circumstances under the law individual under like circumstances under the law of the of the place where the tort occurredplace where the tort occurred

3. Gov’t.’s liability is for money damages for injury or loss 3. Gov’t.’s liability is for money damages for injury or loss of of property or personal injury or death caused by the property or personal injury or death caused by the negligent negligent or wrongful act or omissionor wrongful act or omission of any employee of the of any employee of the

government while government while acting within the scope of his office or acting within the scope of his office or employmentemployment

4. Exceptions - claims not covereda) Executive functions: employees exercising due care in the execution of a statute or regulation & claims arising in foreign countries b) Discretionary function or duty, regardless of whether or not the discretion involved was abused c) Loss, miscarriage, or negligent transmission of postal materials d) “Intentional torts”: claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights

Since a 1974 amendment to the FTCA, claims for assault, battery, false imprisonment, false arrest, malicious prosecution, or abuse of process are covered if they are based upon acts or omissions of federal investigative or law enforcement officers, but the exception still applies to non-law enforcement personnel.

 

Initial Restrictive Interpretations Initial Restrictive Interpretations Feres v U.S. (1950) – tort liability only attaches to Feres v U.S. (1950) – tort liability only attaches to

gov’t. & its agents when they are performing gov’t. & its agents when they are performing actions private persons/entities do (thus actions private persons/entities do (thus exempting all military and law enforcement exempting all military and law enforcement personnel and functions)personnel and functions)

Dalehite v U.S. (1953) – expansive interpretation of Dalehite v U.S. (1953) – expansive interpretation of “discretionary function” and “discretion” “discretionary function” and “discretion” exceptions to FTCA to cover every DECISION exceptions to FTCA to cover every DECISION taken in pursuance of a policy decision, i.e., it taken in pursuance of a policy decision, i.e., it made no distinction between discretionary made no distinction between discretionary planning {WHAT} and discretionary planning {WHAT} and discretionary implementation {HOW}. Under the Dalehite implementation {HOW}. Under the Dalehite doctrine, only “non-discretionary”, i.e., purely doctrine, only “non-discretionary”, i.e., purely “ministerial” negligence would be covered. “ministerial” negligence would be covered.

Indian Towing Co. v U.S. (1955)Indian Towing Co. v U.S. (1955) tort liability attaches to gov’t. when it fails to properly tort liability attaches to gov’t. when it fails to properly

discharge a duty it has accepted responsibility for discharge a duty it has accepted responsibility for performing, thus engendering a reasonable performing, thus engendering a reasonable expectation or reliance upon the discharge of that expectation or reliance upon the discharge of that dutyduty

rejected Feres doctrinerejected Feres doctrine

Griffin v U.S. (1974)Griffin v U.S. (1974) Clarifies Dalhite by distinguishing between Clarifies Dalhite by distinguishing between

discretionary policy making and non-discretionary discretionary policy making and non-discretionary implementation [although “judgments/decisions” are implementation [although “judgments/decisions” are involved, i.e., the political discretionary judgment involved, i.e., the political discretionary judgment involved in establishing safety criteria vs. the involved in establishing safety criteria vs. the scientific judgment of whether or not the criteria scientific judgment of whether or not the criteria have been met – the former are immune; the latter have been met – the former are immune; the latter are not. are not.

1976 Amendments to §702 of APA ““A person suffering legal wrong because of A person suffering legal wrong because of

agency action, or adversely affected or agency action, or adversely affected or aggrieved by agency action w/in the meaning of aggrieved by agency action w/in the meaning of a relevant statute, is entitled to judicial review a relevant statute, is entitled to judicial review thereof.” thereof.”

““[No] action in a court of the U.S. . . . shall be [No] action in a court of the U.S. . . . shall be dismissed . . . on the grounds that it is against dismissed . . . on the grounds that it is against the U.S.the U.S.

However, this provision is restricted to those However, this provision is restricted to those “seeking relief other than money damages . . .”“seeking relief other than money damages . . .”

This provision has been interpreted to ban only This provision has been interpreted to ban only generalized compensatory or punitive generalized compensatory or punitive damages, not reimbursements or other claims damages, not reimbursements or other claims based on specific provisions of the law.based on specific provisions of the law.

 

Allen v U.S. (1987)Allen v U.S. (1987) Holds discretion immunizes officials even if Holds discretion immunizes officials even if

there is negligence associated with exercise of there is negligence associated with exercise of that discretionary decision-makingthat discretionary decision-making

U.S. v Gaubert (1991)U.S. v Gaubert (1991) Defines discretionary functions to include all Defines discretionary functions to include all

the day-to-day decisions involved in the day-to-day decisions involved in business operationsbusiness operations

Raises question as to whether the distinction Raises question as to whether the distinction between policy planning and ministerial between policy planning and ministerial execution remains viable in actual practiceexecution remains viable in actual practice

Tort Suits Against Gov’t. Agents & Doctrine Tort Suits Against Gov’t. Agents & Doctrine of Official Immunityof Official Immunity

Official immunity: “officials” enjoy Official immunity: “officials” enjoy absolute absolute immunityimmunity [freedom from being sued] from tort [freedom from being sued] from tort actions arising out of the performance of actions arising out of the performance of discretionary functionsdiscretionary functions in their in their official capacityofficial capacity Judges (including ALJs)Judges (including ALJs) ProsecutorsProsecutors Law enforcement officers* (eventually restricted to Law enforcement officers* (eventually restricted to

execution of search/arrest warrants, giving testimony execution of search/arrest warrants, giving testimony in court)in court)

Witnesses & jurorsWitnesses & jurors LegislatorsLegislators Executive branch officersExecutive branch officers

Qualified immunity doctrine [not freedom from being Qualified immunity doctrine [not freedom from being sued, only freedom from liability] when performing sued, only freedom from liability] when performing discretionary functionsdiscretionary functions in good faith in their in good faith in their official official capacitycapacity]] § 1983 suits against § 1983 suits against state gov’t.state gov’t. agentsagents or or units of local units of local

governmentgovernment for “due process” violations for “due process” violations• Punitive damages may be collected from individualsPunitive damages may be collected from individuals• Only compensatory damages may be assessed gov’tOnly compensatory damages may be assessed gov’t

““Bivens suits” against Bivens suits” against federal agents federal agents forfor 4 4thth Am. Am. violations [violations [Bivens v Six Unknown Named Agents of the Bivens v Six Unknown Named Agents of the Federal Bureau of NarcoticsFederal Bureau of Narcotics, 1971]; subsequent cases , 1971]; subsequent cases expanded the rights for which remedies existexpanded the rights for which remedies exist

Personal liabilityPersonal liability attaches in either case if plaintiff attaches in either case if plaintiff can prove that agents/officials knew or should have can prove that agents/officials knew or should have known that action violated a constitutional right known that action violated a constitutional right oror acted acted with malicewith malice