Suing the Federal Government

1
Suing the Federal Government
2
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?

3
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

4
Federal Tort Claims Act

• Went into effect in 1945
• All private bills before then
• Allowed tort claims
• Significant exceptions
• http//biotech.law.lsu.edu/cases/immunity/ftca_exc
  eptions.htm

5
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?
• Why were they producing it during the war?
• Where is it going?
• Why might a ship also be carrying explosives?

6
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.

7
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.

8
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.

9
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?

10
The United States Supreme Court Ruling

• What did the United States Supreme Court rule
  about the government's actions in this case?

11
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?

12
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 FDAs defense?

13
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?

14
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

15
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

16
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

17
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

18
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?

19
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)

20
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?

21
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?

22
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?