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 • Looks to the law of the state where the tort occurred for the standards for the tort • 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) - 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?
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? • LA follows Berkovitz
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 for her tort case and for the FTCA defense? • Does LA Law impose a duty on employers to prevent the spread of STIs? • How is this different from vicarious liability? • Why is vicarious liability a problem for STIs?
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 about failure to restrain? • Is this like Allen or Berkovitz?