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Suing the Government

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42 USC 1983

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42 USC § 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. ...

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Background

When were 42 USC 1981, et seq passed? Who were they intended to protect? What sort of color of state action was Congress

thinking about? Now state action may be private contractors

carrying out state policy Does not apply to political subdivisions of the

state such as cities.

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The Constitutional Violation

All 1983 actions are torts, but not all torts are 1983 actions. They must rise to constitutional status Killing, beating, cruel and unusual punishment,

and other serious, intentional actions. There is a de minimis threshold.

Ordinary negligence torts are covered by Tort Claims Acts.

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Who Can You Sue?

Individuals Personal capacity Official capacity - the employer also has to pay

No vicarious liability You have to show the action was part of official

policy or known behavior to make a 1983 claim against the governmental employer.

Were the police in the Danziger Bridge case following NO Police policy?

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11th Amendment

Can sue state officials in their personal capacity, but cannot sue them in their official capacity. Thus, in theory the state is not responsible for

judgments against state employees under 1983, but all states indemnify them if it is in their official capacity.

States may waive 11th amendment immunity in several ways, including by buying insurance.

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What Can You Get?

Money damages from local government entities and from individuals.

Injunctions to stop unconstitutional behavior by the state - no money damages because of the 11th amendment. Can be contempt of court fines for not

correcting the enjoined conditions. The main way to enforce state prison orders.

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Defenses to Personal Claims

Absolute immunity - legislators, judges, prosecutors (only for their direct prosecutorial duties).

Qualified immunity - everyone else. Next slide

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Qualified Immunity: Harlow v. Fitzgerald, 457 U.S. 800 (1982)

The Court ruled that government officials performing discretionary functions should be protected from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would be aware.

Those who are plainly incompetent or who knowingly violate the law cannot invoke qualified immunity.

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The Policy Rationale for Qualified Immunity

Why is qualified immunity necessary for governmental action?

What would be a Mathews analysis? Does litigation only cost when the defendant

loses? Why is there a strong policy for summary

judgment in 1st amendment news cases?

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Standards for Qualified Immunity

...the Fourth Circuit considered whether police officers who bound a defenseless man to a pole with flex cuffs at three in the morning in a deserted parking lot and then abandoned him, all with admittedly no legitimate law enforcement purpose, were entitled to qualified immunity. (Robles v. Prince George's County, Maryland, 302 F.3d 262 (4th Cir. 2002)) What does this tell us about the standard for qualified

immunity?

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Federal Tort Claims Act

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?

Court of Claims

1855 Contracts, tax refunds, takings - not torts 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

Federal Tort Claims Act

Went into effect in 1945 All torts were private bills before then Tied up Congress and encouraged corruption

Allowed tort claims Looks to the law of the state where the tort

occurred for the standards for the tort

FTCA Procedure

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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

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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.

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Exceptions to the FTCA - § 28 USC Sec 2680

http://biotech.law.lsu.edu/cases/immunity/ftca_exceptions.htm

(h) originally did not include the provision for law enforcement officers.

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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 Bivens is a personal action, not an official

capacity action Why weren't Bivens actions originally covered

by the FTCA? Why might you use Bivens rather than state tort

remedy?

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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? When would an ordinary tort action be

possible? A recent case allows a Bivens action against

federal medical personnel in a detention center.

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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.

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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.

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Filing a Claim is Jurisdictional This is an administrative compensation scheme, so it is subject to

exhaustion of remedies You must file a claim with the agency within 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.

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? What are other uses of ammonium nitrate?

Where is it going? Why might a ship also be carrying explosives?

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

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 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.

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

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) - This 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)

Background on Vaccine Liability

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?

Cutter Incident

During the first wave of vaccinations when the polio 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 modern vaccine litigation Real injuries, but a real benefit

Post Cutter Incident

Undermined confidence in vaccines 1965 - 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

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

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 Later work found no excess incidence of Guillian-Barre

Berkovitz incident happened in this climate - 1979

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?

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

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?

Epilog

National Childhood 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 Anti-vaccine forces have undermined the vaccine

law system

Pandemic Flu Vaccines

What are the legal issues? How can the feds deal with these? What about rolling out an experimental vaccine? What if the feds make you take the experimental

vaccine? And it harms you? What does Allen tell us?

Public Readiness and Emergency Preparedness Act Creates broad immunity for government and private

contractors

Tort Claims in Louisiana

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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

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DHS Mandated 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.

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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?

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The Oyster Industry and Warnings

Did they support the reporting regulations? What was their concern? What would you tell them as a products liability

lawyer? How did their position affect the final form of the

law? What should it really say? Is this like fugu - puffer fish - sushi?

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Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003)

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?

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The Claims

Who did the plaintiff sue? What was the comparative fault assessment? What is the plaintiff's negligence theory against

the state?

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Did the Oysters Really Make Him Sick?

The parties further stipulated that Gregor contracted vibrio vulnificus sepsis through the consumption of the raw oysters on August 5, 1996 at Pascal's Manale which contained the bacteria. However, it is noteworthy that Dr. Joel Nitzkin testified that the incubation period for vibrio vulnificus is a range of 12 to 36 hours with most persons who get sick consuming the product 18-24 hours prior to the onset of illness. Dr. Louise McFarland (Chief Epidemiologist for the Office of Public Health) agreed that with oysters consumed between 12 noon and 2:00 p.m., and the onset of symptoms at 4:30 p.m. on that same day, this case was unusual because of the very short incubation period for bacteria to multiply enough to cause a serious infection.

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Do They Even Know Where the Oysters Came From?

The parties also stipulated that the raw oysters consumed by Gregor were purchased by Pascal's Manale from Bez Oysters and Seafood, Inc., who purchased the raw oysters from Eddie's Quality Oysters, Inc. Despite this stipulation by the parties, an investigation by the Office of Public Health, Seafood Sanitation Unit confirmed that the oysters served to Gregor were harvested from private leases in California Bay, and Louisiana Bez Oysters and Seafood, Inc. purchased the oysters from Miro Mjehovic rather than Eddie's Quality Oysters, Inc.

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Trial Court

Why was DHH assessed so much fault? Should the restaurant be able to blame the

agency for not telling them they are breaking the law?

Why not hit the oyster wholesaler? The State claimed the discretionary function

defense. Is this case Berkowitz?

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Louisiana State Immunity Sovereign immunity was abolished in the Edwards'

constitution. How does this change the construction of the

immunity provision as compared to the construction of the FTCA?

The Discretionary Authority Statute: "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. "

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Court's Analysis

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

How is this case like Berkowitz? What is the role of the regulation? How is the agency arguing that the reg does not

apply?

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What was the Real Negligence of DHH?

Did it really allow inspectors to decide what point of sale meant? What does the court assume - probably correctly -

about what the inspector did? What was the negligence by the department?

Was the restaurant also liable? Bad oysters or bad warning? How did the court modify the allocation of fault?

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Public Health Risks

Does the health department have a duty to warn about risks it knows of?

What if it warns physicians, but not the public? Should it be liable for not abating a risk to the

public? What about testing the oyster beds? What did the health department find about the

origin of the oysters in this case that should worry you?

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Hepatitis in Bathhouses

Data from health studies in the mid-1970s showed a huge risk of hepatitis b in bathhouses Should the health department have warned the public? Should they have closed down the bathhouses? What about AIDS in the bathhouses?

What if the statute says the government shall protect the public? What does the public assume from government

inaction?