1. Chapter 13 Administrative Responsibility

2. Torts & Agencies • What is a Tort? • Generally, under the concept of “Sovereign Immunity” it is impossible to sue the government for torts or one has a limited right. Why? • In 1946 the Federal Tort Claims Act (FTCA) allowed the suing of the federal government and federal agencies in tort. However, not against the individual agency employees.

3. Exceptions to the FTCA • The most important exception to the FTCA is that one cannot sue “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.”

4. FTCA • Original Purpose To compensate persons injured by ordinary negligence who would otherwise be barred from suing by sovereign immunity • Basic jurisdictional requirement A negligent injury by a government employee acting within course and scope of employment Must file a claim for compensation with the government and wait for a stated period before filing a lawsuit. The statute of limitations for the claim is often short. • Who do you sue? The individual and the governmental employer is substituted • What can you get? Money damages, subject to damage caps. Often $500,000. • Limitations Usually does not include intentional torts or strict/products liability • Defenses Discretionary authority: if the action was done pursuant to an agency policy or represents a policy choice. Cannot violate constitution, statute, or agency regulations. Official policy is a defense to a tort claims act case, unless it violates some other law.

5. Conduct was performing Scientific evaluation & Not formulation of policy And thus if the DBS Negligently performed its Function of evaluation, then The FTCA does not prevent The lawsuit as this is Not Discretionary Action JUDGE JUDY READY TO RULE---- Case: GRIFFIN V. UNITED STATES. Plaintiff was given a faulty lot of Polio vaccine and she sued under the FTCA against the Division of Biological Standards (DBS) which negligently inspected and distributed the vaccine to the Public. The DBS contends that this is a discretionary act and thus immune under The FTCA. The plaintiff claims that this is not a discretionary function as Contemplated by the FTCA.

6. The AEC was acting under A discretionary function And thus immune Under the FTCA JUDGE JUDY READY TO RULE---- Case: ALLEN V. U.S.. Atomic Energy Commission (AEC) selected An area in Nevada as a testing site for a series of nuclear fallout tests. This Caused injury to thousands over the years. When class action lawsuits were Filed, the AEC defended with the fact that they were acting under discretionary Action and thus immune under the FTCA.

7. Public Purpose of the FTCA • Cases litigated under the FTCA against the federal government strike a balance between the value of sovereign immunity and the value that innocent individuals should not bear the cots of harm that others, including the government, do to them.

8. What about State Agency Liability? • 42 USC 1983 reads: “Every person who, under color of any statue, ordinance, regulation, custom, or usage of any State or Territory, subjects or causes to be subjected, any citizen of the U.S or other person within the jurisdiction of thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured…”

9. This is not arbitrary Conduct shocking to the Conscience and it is Not deliberate or Reckless indifference To life and thus not Actionable under 42 USC 1983 JUDGE JUDY READY TO RULE---- Case: COUNTY OF SACRAMENTO V. LEWIS. Estate of motorcyclist who Died while being chased by the police sued the county under 42 USC 1983 as a Violation of Due Process in the 14th Amendment (deprivation of life, liberty..). County defends saying the police officer’s conduct it does not rise to the level necessary under 42 USC 1983

10. 11th Amendment • “The judicial power of the US shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state…” • Recently interpreted by US Supreme Court to prevent people from suing states against the state’s will when a state violates legal rights created by congressional legislation (but not Constitutional rights violations) • Another defensive shield by STATE agencies.

11. Let’s Discuss Law and Ethics Many times law and ethics are in conflict. Law Ethics