Chapter 13Chapter 13Administrative ResponsibilityAdministrative Responsibility

Torts & AgenciesTorts & Agencies

►What is a Tort?What is a Tort?►Generally, under the concept of Generally, under the concept of

“Sovereign Immunity” it is impossible “Sovereign Immunity” it is impossible to sue the government for torts or one to sue the government for torts or one has a limited right. Why?has a limited right. Why?

► In 1946 the Federal Tort Claims Act In 1946 the Federal Tort Claims Act (FTCA) allowed the suing of the federal (FTCA) allowed the suing of the federal government and federal agencies in government and federal agencies in tort. However, not against the tort. However, not against the individual agency employees.individual agency employees.

Exceptions to the FTCAExceptions to the FTCA

►The most important exception to the The most important exception to the FTCA is that one cannot sue “FTCA is that one cannot sue “based based upon the exercise or performance or upon the exercise or performance or the failure to exercise or perform a the failure to exercise or perform a discretionary function or duty on the discretionary function or duty on the part of a federal agency or an part of a federal agency or an employee of the government, whether employee of the government, whether or not the discretion involved be or not the discretion involved be abusedabused.” .”

FTCAFTCA► Original Purpose Original Purpose To compensate persons injured by ordinary To compensate persons injured by ordinary

negligence who would otherwise be barred from suing by sovereign negligence who would otherwise be barred from suing by sovereign immunityimmunity

► Basic jurisdictional requirement Basic jurisdictional requirement A negligent injury by a A negligent injury by a government employee acting within course and scope of government employee acting within course and scope of employment Must file a claim for compensation with the government employment Must file a claim for compensation with the government and wait for a stated period before filing a lawsuit. The statute of and wait for a stated period before filing a lawsuit. The statute of limitations for the claim is often short.limitations for the claim is often short.

► Who do you sue? Who do you sue? The individual and the governmental employer is The individual and the governmental employer is substitutedsubstituted

► What can you get? What can you get? Money damages, subject to damage caps. Money damages, subject to damage caps. Often $500,000.Often $500,000.

► Limitations Limitations Usually does not include intentional torts or Usually does not include intentional torts or strict/products liabilitystrict/products liability

► Defenses Defenses Discretionary authority: if the action was done pursuant to Discretionary authority: if the action was done pursuant to an agency policy or represents a policy choice. Cannot violate an agency policy or represents a policy choice. Cannot violate constitution, statute, or agency regulations. Official policy is a constitution, statute, or agency regulations. Official policy is a defense to a tort claims act case, unless it violates some other law.defense to a tort claims act case, unless it violates some other law.

JUDGE JUDY READY TO JUDGE JUDY READY TO RULE----RULE----

Case: GRIFFIN V. UNITED STATES. Plaintiff was given a faulty lot of Polio vaccine and she sued under the FTCA against the Division of Biological Standards (DBS) which negligently inspected and distributed the vaccine to the Public. The DBS contends that this is a discretionary act and thus immune underThe FTCA. The plaintiff claims that this is not a discretionary function as Contemplated by the FTCA.

Conduct was performingScientific evaluation &

Not formulation of policyAnd thus if the DBS

Negligently performed itsFunction of evaluation, thenThe FTCA does not prevent

The lawsuit as this is Not Discretionary

Action

JUDGE JUDY READY TO JUDGE JUDY READY TO RULE----RULE----

Case: ALLEN V. U.S.. Atomic Energy Commission (AEC) selectedAn area in Nevada as a testing site for a series of nuclear fallout tests. ThisCaused injury to thousands over the years. When class action lawsuits wereFiled, the AEC defended with the fact that they were acting under discretionaryAction and thus immune under the FTCA.

The AEC was acting underA discretionary function

And thus immuneUnder the FTCA

Public Purpose of the FTCAPublic Purpose of the FTCA

►Cases litigated under the FTCA against Cases litigated under the FTCA against the federal government strike a the federal government strike a balance between the value of balance between the value of sovereign immunity and the value that sovereign immunity and the value that innocent individuals should not bear innocent individuals should not bear the cots of harm that others, including the cots of harm that others, including the government, do to them.the government, do to them.

What about State Agency What about State Agency Liability?Liability?

►42 USC 1983 reads42 USC 1983 reads: “: “Every person who, Every person who, under color of any statue, ordinance, under color of any statue, ordinance, regulation, custom, or usage of any State regulation, custom, or usage of any State or Territory, subjects or causes to be or Territory, subjects or causes to be subjected, any citizen of the U.S or other subjected, any citizen of the U.S or other person within the jurisdiction of thereof to person within the jurisdiction of thereof to the deprivation of any rights, privileges or the deprivation of any rights, privileges or immunities secured by the Constitution immunities secured by the Constitution and laws, shall be liable to the party and laws, shall be liable to the party injuredinjured…”…”

JUDGE JUDY READY TO JUDGE JUDY READY TO RULE----RULE----

Case: COUNTY OF SACRAMENTO V. LEWIS. Estate of motorcyclist who Died while being chased by the police sued the county under 42 USC 1983 as a Violation of Due Process in the 14th Amendment (deprivation of life, liberty..). County defends saying the police officer’s conduct it does not rise to the level necessary under 42 USC 1983

This is not arbitrary Conduct shocking to the

Conscience and it is Not deliberate or

Reckless indifferenceTo life and thus notActionable under

42 USC 1983

1111thth Amendment Amendment

► ““The judicial power of the US shall not be The judicial power of the US shall not be construed to extend to any suit in law or construed to extend to any suit in law or equity, commenced or prosecuted against equity, commenced or prosecuted against one of the United States by Citizens of one of the United States by Citizens of another stateanother state…”…”

► Recently interpreted by US Supreme Court Recently interpreted by US Supreme Court to prevent people from suing states against to prevent people from suing states against the state’s will when a state violates legal the state’s will when a state violates legal rights created by congressional legislation rights created by congressional legislation (but not Constitutional rights violations)(but not Constitutional rights violations)

► Another defensive shield by STATE agencies.Another defensive shield by STATE agencies.

Law and EthicsLaw and Ethics

Many times law andethics are in conflict.

Law Ethics

Let’sDiscussLet’s

Discuss