National Immigration Project/ Immigration Damages Litigation

1. National Immigration Project/ Immigration Damages Litigation Accountability Litigation 101 Law Office of Javier N. Maldonado, PC 110 Broadway St., Ste 510 San Antonio, Texas 78205 Tel. (210) 277-1603 Fax (210) 587-4001 jmaldonado.law@gmail.com Ghita Schwarz Center for Constitutional Rights 666 Broadway, 7th Floor Tel. (212) 614-6445 Fax (212) 614-6422 gschwarz@ccrjustice.org

2. Why Damages Suits? Individual & Legal Benefits • Financial relief for Plaintiffs • Possible leverage to negotiate collateral immigration benefits or relief, such as prosecutorial discretion • In cases seeking injunctive relief, ability to keep case alive if standing for injunctive relief is challenged

3. Why Damages Suits? Community and Impact Benefits • Deterrent effect for agency as a whole and for individual officers • Public attention to abuses • Cumulative power of damages awards • Ability to use discovery to gather information for organizing campaigns

4. Primary Mechanisms • Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 • Bivens Suits against individual officers • 42 U.S.C. § 1983 against local and state persons • Other available statues (ATCA, TVPA, FSIA, state law)

5. Federal Tort Claims Act Overview • Absent a waiver of sovereign immunity, the United States is immune from suit. The FTCA, 28 U.S.C. §§ 1346(b), 2671-2680, waives the United States’sovereign immunity to allow suits for money damages arising out of the negligent acts of federal employees. • The United States is the only defendant subject to suit and liability under FTCA.

6. Federal Tort Claims Act Overview • The US is liable “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.” 28 U.S.C. §1346(b)(1). • Elements of tort & amount governed by law of place where tort occurred. 28 U.S.C. § 2674.

7. Federal Tort Claims Act Overview • Substantive Preconditions to Suit • Except for intentional torts committed by law enforcement officers, US is only liable for negligent acts of its employees • US in not liable for negligent acts of contractors. Logue v. US, 412 U.S. 521 (1973). • Negligent acts must be within the scope of the official’s duties or employment. 28 U.S.C. § 1346(b)(1).

8. Federal Tort Claims Act Overview • Exceptions to Waiver of Sovereign Immunity • Discretionary Function (no suit if based on exercise of “due care” in the execution of a statute or regulation or upon the exercise or failure to exercise a discretionary function or duty) • Intentional Torts except if committed by law enforcement agents and only for specified torts. • Extraterritorial acts

9. Federal Tort Claims Act Practice & Procedure • Jurisdictional Preconditions to Suit • Must present administrative claim to the offending agency within 2 years of the accrual of the action • Claim may be filed on Form SF-95 or any other document • Amount demanded in litigation may not exceed amount demanded on Form SF-95

10. Federal Tort Claims Act Practice & Procedure Suit can be filed after denial of administrative claim or 6 months after claim has been pending: • No heightened pleading requirement • No jury trial • Venue lies where plaintiff resides or where tortious act occurred • Damages are measured by law of the place where tort occurred, and no punitive damages • US has 60 days to answer

11. Bivens SuitsOverview • Bivens actions are money damages suits against federal agents, in their individual capacity, for violations of constitutional rights. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).

12. Bivens SuitsOverview Claims recognized only for violations of • 4th Amendment: Bivens (1971) • 5th Amendment Equal Protection Clause: Davis v. Passman, 442 U.S. 228 (1979) • 8th Amendment: Carlson v. Green, 446 U.S. 14 (1980) Supreme Court reluctant to recognize “new” constitutional causes of action. Corr. Services Corp. v. Malesko, 534 U.S. 61 (2001)

13. Bivens SuitsOverview Basic elements of a Bivens lawsuit: • Plaintiff has a constitutionally protected right. • A federal official violated such right. • Plaintiff lacks a statutory cause of action, or an available statutory cause of action does not provide a meaningful remedy. • An appropriate remedy, namely damages, can be imposed.

14. Bivens SuitsOverview • Jurisdiction in federal court exists under 28 U.S.C. § 1331. • Suit must be brought within the state limitations period for personal injury actions where claim arose. • Jury trial is available. • Compensatory and punitive damages are available. • Attorneys’ fees are not recoverable under Equal Access to Justice Act or 42 U.S.C.§ 1988.

15. Bivens SuitsDefendants • Defendants are federal officials sued in individual capacity • Federal agencies are not subject to Bivens actions. FDIC v. Meyer, 510 U.S. 471 (1994). • Private correctional facilities under contract with a federal agency are not subject to Bivens actions. Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001). • 42 U.S.C. §233(a) precludes Bivens actions against individual U.S. Public Health Service officers or employees for constitutional violations committed while acting within the scope of their office or employment. Hui v. Castaneda, 130 S.Ct. 1845 (2010).

16. Bivens SuitsDefendants If acting in official capacity, the following officials have absolute immunity: • Judges: Pierson v. Ray, 386 U.S. 547 (1967) • Legislators: Tenney v. Brandhove, 341 U.S. 367 (1951) • Prosecutors: Imbler v. Pachtman, 424 U.S. 409 (1976) These are 42 U.S. C. §1983 cases, but Bivens immunities track §1983. Butz v. Economou, 438 U.S. 478 (1978).

17. Bivens SuitsQualified Immunity • Counsel should be prepared for a motion for qualified immunity (QI) in the very early stages of the lawsuit. • The filing of a motion for QI will limit the plaintiff’s ability to conduct discovery. • QI is addressed in a two part test: (1) do the facts alleged show the violation of constitutional right? (2) was the constitutional right clearly established? Saucier v. Katz, 533 U.S. 194 (2001).

18. 42 U.S.C. § 1983Overview • “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…”

19. 42 U.S.C. § 1983Overview • Does not create substantive rights • Merely provides for a remedy • State and federal courts have concurrent jurisdiction • No administrative exhaustion requirement • Statute of limitations is determined by the personal injury statute in the forum state. Wilson v. Garcia, 471 U.S. 261 (1985).

20. 42 U.S.C. § 1983Defendants • Section 1983 suits are usually two types: • Local Governments/Official Capacity • The suit is against the local governmental entity • No qualified immunity • Must prove custom or policy • No respondeat superior liability • No punitive damages, City of Newport v. Fact Concerts, Inc., 453 U. S. 247 (1981)

21. 42 U.S.C. § 1983Defendants • Individual capacity • Suit is against the officer and s/he is personally liable for damages • Punitive damages are available • Can claim qualified immunity as in Bivens suits

22. 42 U.S.C. § 1983Defendants • Only persons are liable. • The following are not liable: • The United States & U.S. Territories • Federal agencies • Federal officials (except where they have conspired with state or local officials) • States • State officials (except for official capacity suits in which only prospective injunctive relief for an ongoing federal violation is sought or in individual capacity suits). Frew v. Hawkins, 540 U.S. 431 (2004).

23. 42 U.S.C. § 1983Municipal Defendants • Theories of Municipal Liability • Express policy causes a constitutional violation. Monell v. Dept. of Social Services, 436 U.S. 658 690 (1978). • Widespread custom or practice is so common that it has the effect of an express policy. One or two acts of wrongdoing will not be enough. Most courts require long-standing practice that is well settled.

24. 42 U.S.C. § 1983Municipal Defendants • A person with final policymaking authority causes the violation. Must look at state law to determine who are final policymakers. Pembaur v. City of Cincinnati, 475 U.S. 469 (1986). • Failure to train, supervise, or screen. City of Canton v. Harris, 489 U.S. 378, 387 (1989). Must show that municipality’s failure to train (or supervise or screen applicants) amounts to deliberate indifference to the rights of persons who come into contact with officers.

25. 42 U.S.C. § 1983Relief Monetary Damages • Compensatory damages (e.g., past/future lost wages, medical expenses, pain and suffering) • Punitive damages (individual capacity suits only) • Equitable/Injunctive Relief: granted only for prospective, immient, irreparable harm with no other adequate remedy; past exposure to illegal conduct insufficient “if unaccompanied by any continuing, present adverse effects.”O’Shea v. Littleton, 414 U.S. 488 (1974).

26. Other Accountability StatutesSuing Foreign Officials Alien Tort Claims Act, 28 U.S.C. § 1350: non-citizens may sue for torts committed in violation of international law or treaties Torture Victims Protection Act, 28 U.S.C. §1350 note §1(a): US citizen or non-citizen may sue for acts of torture and wrongful death claims based on extrajudicial killing Foreign Sovereign Immunities Act, immunity exception under 18 U.S.C. § 1605 or if waived by foreign government

27. Other Accountability StatutesState Law Person may have a claim against state or local officials under state tort law or state civil rights law

28. Attorneys’ FeesContingency Fees • FTCA: limits on recovery of contingency fees pursuant to 28 U.S.C. § 2678: • Maximum of 20% of recovery where claims resolved/settled before litigation • Maximum of 25% of recovery where claims resolved after initiation of litigation • Bivens/ §1983: state law governs percentage of recovery in contingency fee cases

29. Attorneys’ FeesRecovery from Federal Defendants Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, 5 U.S.C. § 504, provides for attorneys’ fees & costs to successful plaintiffs in civil suits, for costs and fees expended for prevailing claims. Limitations in damages cases make EAJA most useful in injunctive relief claims.

30. Attorneys’ FeesFee Agreements • Retainer should specify type of fee arrangement with client. • Fee agreement should contemplate that defendants are not barred from demanding fee waiver in exchange for settlement, Evans v. Jeff D., 475 U.S. 717 (1986).