Suing the Federal Government
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Transcript of Suing the Federal Government
Suing the Federal Government
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 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
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_exceptions.htm
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?
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 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.
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) - 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?
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?
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?
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
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
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 Berkovitz happened in this climate - 1979
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?
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?
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?
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 Did the case depend on the serviceman being a
government employee? What if he had been a civilian?
Contrast Leleux with Sheridan
If the recruiter were not a government employee, would plaintiff have case against the government?
How does this differ from Sheridan?