Showing posts with label FTCA. Show all posts
Showing posts with label FTCA. Show all posts

Monday, September 7, 2020

Immunity shields tweeting legislators from libel suits, Elizabeth Warren from high school plaintiffs

High schoolers from Kentucky will not get their day in court against Elizabeth Warren.

The students' lawsuit, high profile in the political sphere, was resolved in the Sixth Circuit yesterday on mundane grounds that offer a reminder to torts students of a simple immunity rule.

Remember the fuss in January 2019 over that video of Catholic high school students on a field trip said to be taunting a Native American elder demonstrating at the Lincoln Memorial?

Remember when people used to stand really close together like that?

There were two dramatically different sides to the story about what was really happening there, and they were as far apart as young people joining in celebration of Native American heritage, on the one side, and "MAGA" has inspired privileged youth to racism, on the other side.  For a breakdown that gets closer to the truth, see, e.g., Vox, Jan. 24, 2019; Reason, Jan. 21, 2020.

Senator Elizabeth Warren (D-MA) and Representative Deb Haaland (D-NM) tweeted about the affair from the perspective that cast the students in the wrong.  Haaland wrote, "The students’ display of blatant hate, disrespect, and intolerance is a signal of how common decency has decayed under this administration. Heartbreaking."  And Warren: "Omaha elder and Vietnam War veteran Nathan Phillips endured hateful taunts with dignity and strength, then urged us all to do better."

The students sued the legislators for defamation, asserting that the darker interpretation of events was false.  On Thursday last week, the Sixth Circuit affirmed dismissal of the lawsuit—which is not to opine one way or the other on the students' claim of falsity.

As the court observed, the Speech and Debate Clause has no application on Twitter.  But a much simpler analysis pertained.  Whilst tweeting, Haaland and Warren were acting within the scope of their employment with the U.S. Government.  And the Federal Tort Claims Act (para. (h)) does not waive federal sovereign immunity for defamation committed by its employees—even the elected kind.

The case is Does 1 through 10 v. Haaland, No. 2:19-cv-00117 (6th Cir. Sept. 3, 2020).  Circuit Judge Eric Clay authored the opinion for a panel that also comprised Judges White and Readler.

Monday, November 25, 2019

Area man signposts 'sovereign immunity site'

Attorney Dan Greenberg, friend of the blog and a federal policy adviser in Washington, D.C., contributes this photo from his home neighborhood of Alexandria, Va.

The sign reads:


City of Alexandria
Sovereign Immunity Site
 Did you know ...
     The City of Alexandria claims "sovereign immunity" from liability for damage its trash collection truck did to this fence.

     That's right.  On May 22, 2019 a city truck hit and broke this fence.  It's on video!  But none of that matters.  They're immune from liability.
What is sovereign immunity?
     Simply put, the term sovereign immunity is derived from British common law doctrine based on the idea that the King could do no wrong.
     So be careful around City of Alexandria vehicles.  They can do no wrong.

The underlying dispute was reported by Fox 5 D.C. in October.  A trash truck caused $5,000 in damage to Denis Goris's 30-year-old iron fence.



Sovereign immunity turns up often in a society in which government is pervasive in our lives and surroundings, and that's bound to cause frustration.  The sign-bearer is right that the essence of immunity is inequitable, as between the plaintiff who suffers an injury and the defendant sovereign who caused it.  The Federal Tort Claims Act waives federal sovereign immunity in a narrow class of cases, and states can be less generous with their tort claims acts.  The broader aim that keeps immunity going in a democracy is the protection of public assets, which belong to all of us.

It looks like Alexandria does use city staff for trash collection.  Contractors throw a wrinkle into the mix (federal, state).  I am not a Virginia lawyer; what I know of the state's tort claims act, it treats counties and cities much more generously than state-level actors.  The localities enjoy near absolute sovereign immunity for governmental functions, and, almost 50 years ago, the Virginia Supreme Court held that municipal trash collection is a governmental function entitled to immunity.  Alexandria does have an administrative claim process, and there's some room to argue.

The city told Fox 5: "Under federal and state laws and court rulings, the City is generally not liable for damages caused in the course of providing core government services. While the City conducts extensive planning and training to avoid damaging property, some damage does occur given the vast scope of City operations. Exemption from these claims saves a significant amount of money every year for taxpayers as a whole."

In a story last year, NBC 4 Washington reported: "Alexandria Won't Pay $4,600 in Damages to SUV Caused by City Trash Truck."  The city is as consistent with its tort claims as it is with its driving record.

[SUPPLEMENT: "Why is this still a thing?," Planet Money asks about state sovereign immunity in the context of excellent coverage of the copyright case pending in the U.S. Supreme Court, Allen v. Cooper.]

Monday, November 11, 2019

For Veterans Day, let's push through Congress bipartisan Feres doctrine waiver for medmal claims

Veterans Day Painting.  (Details at end of story.)
The Federal Tort Claims Act (FTCA) authorizes tort actions against the U.S. federal government, waiving the government's sovereign immunity in its courts, subject to tight constraints.  The FTCA yields to the Feres doctrine, a rule of law named for the Supreme Court case that recognized it in the years following World War II.  The Feres doctrine disallows lawsuits by active-duty military for personal injury or death.  The Feres doctrine makes sense on the face of it, lest every injury in combat become a tort claim under the laws of the states. 

But the Feres doctrine's logic breaks down at the margins.  Increasingly in recent decades, healthcare has become big business and very expensive.  Military personnel have become dependent on the government for routine care.  And cases have been reported of medical malpractice at government hospitals: cases that unquestionably would yield medical malpractice claims in the comparable civilian context.  Insofar as the Feres doctrine is supported by a sort of "assumption of risk" by soldiers who go off to war, that theory feels ill fit to stateside medical mistakes in childbirth or prenatal care, or failure to diagnose terminal conditions

In spring 2019, the U.S. Supreme Court denied cert. in a challenge to this operation of the Feres doctrine (case at SCOTUSblog; details at and Stripes).  CBS Morning reported in August on the story of Sfc. Richard Stayskal, a Green Beret, now terminally ill, whose cancer was misdiagnosed, and on his emotional congressional testimony.


Bills (S.2451, H.R.2422) (not the first of their kind) that would authorize medmal tort claims for military personnel are stalled in House and Senate committees.  Fox46 Charlotte recently called out Sen. Lindsey Graham as an obstacle in the Senate for the bipartisan Sfc. Richard Stayskal Military Medical Accountability Act of 2019.  I hope Veterans Day might occasion placement of this fix on the short list of what Congress should be doing besides playing politics for the cameras this week.

(Image: Caroline Beattie, a senior at Manatee School for the Arts in Palmetto, Fla., painted a portrait of her Economics and Government teacher, for the school's Veterans Day program. Her teacher, Maj. Jennifer Pearson with the Air Force Reserve’s 920th Rescue Wing at Patrick Air Force Base, Fla., photographed the painting Nov. 6, 2019.  U.S. Air Force photo by Maj. Jennifer Pearson.)

Tuesday, September 24, 2019

Teachable torts: Court succinctly dismisses 'outing' case collateral to terrorism prosecution

Attendees dance during the Lesbian, Gay, Bisexual, and Transgender mixer
hosted by Joint Task Force Guantanamo Equal Opportunity Leaders for JTF
Troopers and Naval Station Guantanamo Bay Residents to honor LGBT
Pride Month in 2018. Photo by JTF GTMO PAO Trooper.
A short decision upon compelling facts in a civil case collateral to the criminal prosecution of Khalid Sheikh Mohammed, accused of being a September 11 architect, offers a worthwhile exercise in the study of tort law.

Semmerling, a lawyer on the defense team of Guantánamo-held Mohammed, accused the head of the defense team of outing Semmerling to Mohammed as gay.  The revelation of Semmerling's sexual orientation resulted in his removal from the team, because Mohammed would not work with a gay (or Jewish) lawyer.

Typical outing cases present some interesting problems in privacy law for several reasons.  First, they emphasize the distinction between the disclosure privacy tort and the defamation tort, because the revelation in an outing case is true.  First Amendment absolutism challenges the disclosure tort for its threat of liability upon a truthful statement, though there is little doubt that the disclosure tort would survive a direct Supreme Court challenge today.

Second, a plaintiff's homosexual (or other non-heterosexual) identity is rarely an absolute secret, disclosed to no one, but more often—and healthily—a personal datum that the plaintiff has disclosed with thought and care to different persons—parents, friends, public—at different times.  But "the secrecy paradigm" that dominates American privacy law disallows tort recovery unless intimate information remains intimately safeguarded.  (This is a critical point of difference between U.S. and European privacy law.)

Third, outing cases are complicated as a matter of social policy, for fear that a liability award might validate the view that homosexual orientation should be a source of shame, so either a truth properly kept secret (privacy tort), or a falsehood injuriously uttered (defamation tort).

This case is not typical—Semmerling's sexual orientation was only a secret to Mohammed—but its unusual facts, assuming the allegations as true for sake of argument on the motion to dismiss, left Semmerling with only less prospect of a tort remedy than usual.

Invoking the common law litigation privilege, the U.S. District Court, per Judge Robert W. Gettleman, rejected claims against the defense team leader herself. The absolute privilege ensures that an attorney has unfettered discretion in communicating with a client on matters pertaining to litigation.  The court also dismissed claims of negligence and intentional infliction of emotional distress (IIED) against the United States as defense counsel's employer.

Tim Jon Semmerling is a Chicago criminal-
defense attorney. In addition to his private
practice, he has worked pro bono for the
Center for Justice in Capital Cases at DePaul
University.
The negligence and IIED claims against the United States did survive dismissal under the Federal Tort Claims Act.  The FTCA on its terms disallows libel and slander claims against the United States, and the court opined that even a defamation claim disguised as IIED (or general negligence) would not survive that disallowance.  For the very fact that Semmerling complained about a truthful disclosure, his claim cannot be equated with libel or slander, and so was not a disguised defamation claim.

On tort law merits, though, Semmerling failed to state a claim, the court ruled.  He tried to predicate negligence on the defendant's one-time assurance to him that she would allow him to work on the case without disclosing his sexual orientation to Mohammed.  That was not basis enough, the court opined, to establish a duty of the United States to Semmerling for the purpose of proving negligence. The court did not wade in more deeply, but I expect that the duty requirement was especially elevated given Semmerling's lack of physical injury.

As to IIED, Semmerling sufficiently pleaded neither intent nor outrageousness.  Semmerling found out about the dislcosure only by way of hearsay and only some time after being fired.  So, the court reasoned, evidence was lacking that the disclosure was calculated to cause him emotional distress.  Also the disclosure was at worst "offensive," the court opined, and not "utterly intolerable in a civilized community," as Illinois law requires.

I wonder whether the facts would have supported a tortious interference claim; alas, that cause is expressly disallowed by the FTCA.

The case is Semmerling v. Bormann, No. 18-CV-6640 (N.D. Ill. Sept. 11, 2019).  HT@ ABA Journal.

[NOTE, Sept. 25, 2019: A generous colleague brought to my attention that the complaint in the case also pleaded defamation.  The claim failed on the litigation privilege as against lead counsel and was precluded by the FTCA as against the United States.  I ought to have marked the point that Semmerling was unable to claim disclosure in part because he guarded no intimately held secret.  The defamation claim was grounded in the allegation that lead counsel falsely suggested to the client a particular sexual interest in him.  That's an intriguing hypothetical when one considers the consequent analyses on the merits, including "capable of defamatory meaning."]

Monday, July 8, 2019

U.S. Supreme Court widens tort liability exposure of New Deal-era, state-owned enterprises

On April 29, the U.S. Supreme Court held against the Government by reversing and remanding unanimously in Thacker v. Tennessee Valley Authority, No. 17-1201 (Oyez), a negligence claim arising under the Federal Tort Claims Act of 1946 (FTCA).

Per Justice Kagan, the Court held that the test for sovereign immunity in tort claims against New Deal-era "sued and be sued" entities such as the TVA is twofold.  First, the court must determine whether the conduct of the defendant was commercial or governmental.  Sovereign immunity can attach only to governmental conduct.  Second, if governmental, the court must determine whether suit is clearly inconsistent with constitutional or statutory scheme, or suit clearly would threaten interference with the governmental function (the test of FHA v Burr (U.S. 1940)).  Only in those narrow cases—much narrower than the statutory discretionary function exception to FTCA's waiver of sovereign immunity—does sovereign immunity attach.

The Court's decision hews to the plain text of the TVA Act of 1933 and represents a win for plaintiffs.  The case also throws into doubt other lines of federal case law in which the courts have borrowed and extended immunity concepts by analogy to the FTCA to shield government actors from liability in other statutory contexts.

You can hear my verbal review of the case at the Federalist Society's SCOTUScast.  Hear my pre-decision, post-argument analysis on SCOTUScast and view pre-argument analysis with engaging visuals from the Federalist Society on SCOTUSbrief.  The case is on SCOTUSblog with record links and informative analysis by Gregory Sisk.  Find the opinion and oral argument at Oyez.

Saturday, March 9, 2019

Advocates in SCOTUS case on tort and sovereign immunity stick to their guns, frustrate Court's search for middle ground

For the Federalist Society SCOTUScast podcast series, I recorded a commentary on the U.S. Supreme Court oral argument in Thacker v. Tennessee Valley Authority, which occurred in January.  You can read more about Thacker, and see an excellent video the Federalist Society produced, via my January 18 blog entry.

The Tennessee River dips into northern Alabama, where the accident in
Thacker occurred. (Map by Shannon1, CC BY-SA 4.0).
Here is background on the case from the Federalist Society:

On January 14, 2019, the Supreme Court heard argument in Thacker v. Tennessee Valley Authority, a case involving a dispute over the “discretionary-function exception” to waivers of federal sovereign immunity.

In 2013, Anthony Szozda and Gary and Venida Thacker were participating in a fishing tournament on the Tennessee River. The Tennessee Valley Authority (TVA) had a crew near the river, trying to raise a downed power line that had partially fallen into the river instead of crossing over it. The crew attempted to lift the conductor out of the water concurrent with Szozda and the Thackers passing through the river at a high rate of speed. The conductor struck both Thacker and Szozda, causing serious injury to Thacker and killing Szozda. The Thackers sued TVA for negligence. The district court dismissed the Thackers’ complaint for lack of subject-matter jurisdiction. 

On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment.  Although the act creating the TVA waives sovereign immunity from tort suits, the Court held that the waiver does not apply where the TVA was engaged in governmental functions that were discretionary in nature. 

Applying a test derived from the Federal Tort Claims Act, the Court determined that the TVA’s challenged conduct fell within this “discretionary-function exception” here, and immunity therefore applied.

The Supreme Court granted the Thackers’ subsequent petition for certiorari to address whether the Eleventh Circuit erred in using a discretionary-function test derived from the Federal Tort Claims Act rather than the test set forth in Federal Housing Authority v. Burr, when testing the immunity of governmental “sue and be sued” entities (like the Tennessee Valley Authority) from the plaintiffs’ claims.

Counsel for Thacker and counsel for TVA stuck to their guns in the oral argument.  Thacker's position was to interpret the "may sue and be sued" language that governs the TVA and other New Deal authorities to be broadly permissive of tort suits, stopping only to preclude "grave interference" with the executive branch prerogative.  The TVA meanwhile insisted that it is entitled to a broad discretionary function immunity, like that which Congress built into the later enacted Federal Tort Claims Act.

Questions from the Court tried to pull both counselors toward the possible middle ground of a sovereign immunity for governmental functions and not for commercial functions.  But neither counsel was willing to bite.  That led to a lively oral argument.  Thacker's case seems the stronger, but it is unclear how the Court will get to either result.

Sunday, January 27, 2019

Court dismisses prolonged suit against Government over 2009 Ft. Hood mass shooting

From the Defense Department: "Jeffrey and Sheryll Pearson look at the
portrait of their son, Army Pfc. Michael Pearson, before the Purple Heart
and Defense of Freedom award ceremony on Fort Hood, Texas, April 10,
2015. The event honored the 13 people killed and more than 30 injured in
a gunman’s 2009 shooting rampage on the base. U.S. Army photo by Daniel
Cernero."

The U.S. District Court for the District of Columbia, per the Hon. Colleen Kollar-Kotelly, dismissed service-member and family claims against the federal Government arising from the 2009 shooting at Ft. Hood, near Killeen, Texas, in which U.S. Army Major Nidal Hasan killed 13 and injured more than 30 other persons.  CourtListener has the ruling in Manning v. Esper, No. 12-CV-1802 (D.D.C. Jan. 22, 2019).

To the dismay and torment of those involved, this case has dragged on for nearly a decade.  Hasan admitted to the shootings in a 2013 court-martial and was sentenced to death.  He is presently awaiting execution, pending judicial review, at Fort Leavenworth.  The civil claims accuse the Government of negligence in the supervision of Hasan, who was permitted to work as a medical corps psychiatrist despite superior's concerns about his own mental fitness.  While Hasan's case was under way and then on appeal, the Army repeatedly asked the trial court to stay civil proceedings, provoking "anger, frustration and suspicion" on the part of the plaintiffs, in their words.

The dismissal was predicated principally on grounds of the Feres doctrine. Arising from the 1950 U.S. Supreme Court decision in Feres v. United States (Justia), the Feres doctrine bars tort claims arising from active-duty service when the claims otherwise might be authorized by the Federal Tort Claims Act (FTCA).  The Feres doctrine has made news in recent years in allowing the government to resist medical malpractice claims against healthcare providers of Veterans Affairs.  

Plaintiffs in the Ft. Hood case knew that Feres would be a problem, but hoped to work around it, as some victims were not on active duty at the time of the shooting, and some defendants were federal law enforcement officials rather than active-duty military.  The ambiguous status of some persons involved in the shooting, as well Hasan's motivations, was at issue in the intervening years in an ugly collateral dispute over victims' entitlements to military honors, which the Government for a time resisted.  In this same vein of ambiguity, the court did allow some plaintiffs' claims to proceed in administrative processes, dismissing them without prejudice for failure to exhaust remedies as the FTCA requires.

Information and privacy law aficionados might recollect the name of Judge Kollar-Kotelly.  For seven years after 9/11, she was the presiding judge of the Foreign Intelligence Surveillance Court.

Friday, January 18, 2019

SCOTUS ponders governmental immunity in boating accident suit against TVA


The Federalist Society produced a beautifully illustrated video, as part the SCOTUSbrief series, to accompany the January 14 oral argument (transcript) in the U.S. Supreme Court in Thacker v. Tennessee Valley Authority, a personal injury suit.  The case compels the Court to analyze what, if any, governmental immunity is afforded to a range of New Deal entities, such as the TVA, which Congress broadly authorized "to sue and be sued," decades before the Federal Tort Claims Act came into being.  The Federalist Society generously invited me to provide narration for this video.  At SCOTUSblog, Professor Gregory Sisk, of St. Thomas Law, has an expert analysis of Monday's oral argument.  When available, audio of the oral argument will be posted at Oyez and at C-Span.