WHAT’S LEFT OF THE FTCA?
BRIEF REFLECTIONS ON GOVERNMENTAL IMMUNITY IN THE 21ST CENTURY
Presented by, Michael C. Palmintier
- “Sovereign Immunity” – a legal concept commonly expressed by the Latin term “rex non potest peccare”, meaning, “the king can do no wrong.” Herbert Broom, A Collection of Legal Maxims, 1845.
- The Federal Tort Claims Act provides that the United States, on and after January 1, 1945, shall be liable for injury to, or loss of, property or for personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government, acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable.
- Hypocrisy – a feigning to be what one is not or to believe what one does not; especially: the false assumption of an appearance of virtue; Merriam Webster Dictionary
- Incredulity – a feeling that you do not or cannot believe or accept that something is true or real; Merriam Webster Dictionary
The Federal Government has “sovereign immunity” and may not be sued. The exception to this is that the United States may waive its immunity – it can consent to being sued. Our government has done just that under the Federal Tort Claims Act (FTCA), which waives its immunity if a federal employee tortiously causes damage. The U.S. Supreme Court stated in Price v. United States1: “It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it.”
For plaintiffs injured by the tortious conduct of representatives of the federal government, the language of the FTCA may seem like words of comfort. After all, especially in modern times, our government’s activities permeate all aspects of our lives in this country. From basic postal
1174 U.S. 373, 375-76 (SCt, 1899)
transport, to the construction and maintenance of dams and flood control projects, from the regulation of food and drugs, to the oversight of banking and securities, from the administration of aviation in our nation’s airports, to the provision of our military defense, hardly an aspect of our daily lives exists in which the federal government does not involve itself. As a result, the opportunity for injury-causing, negligent conduct of government employees and representatives abounds here in the 21st century.
Unfortunately, plaintiffs’ likelihood of recovery against the U.S. in tort cases brought under the FTCA has become more and more remote, as jurisprudential limitations and the expansion of the exceptions contained in the act have grown to the point at which one must strain to imagine a circumstance under which the government is not immune. In this short presentation, we will consider the origins of the FTCA, springing from a time in which no recovery could be gained for injuries caused by the government. We will consider the post-enactment history of the act, including reference to some key developments in the Supreme Court. Finally, we will consider some recent cases out of the Louisiana District Courts and the U.S.Fifth Circuit.
The recent jurisprudence which we will consider leaves very little doubt as to the answer to the question posed in the title to this presentation. What’s left of the FTCA? – not much.
Before 1946, when a citizen was injured by an employee or representative of the federal government, the injured person had no remedy by which to recover for his damages within the court system. The doctrine of sovereign immunity barred any such recovery in court. As a result, what developed was the arduous and unpredictable system by which parties injured by the government were relegated to petitioning Congress for recovery. These bills became so numerous that the management of them began to impose a substantial burden on the Congress. Nearly 2,000 such bills were introduced between the Sixty-eighth and the Seventy-eighth Congress, with about 20 per cent of them being enacted.
The Federal Tort Claims Act was adopted by Congress in 1946. Ostensibly, the Act was passed to protect meritorious claims against the United States which were previously barred by sovereign immunity. Further, it had the benefit of eliminating Congress’ considerable burden of investigating such claims and handling the private bills designed to provide relief in individual cases2. The Act recognizes the general principle that the United States waives its defense of sovereign immunity and accepts liability for the negligent conduct of government employees acting within the scope of their official duties or the tortious activities of federal entities or other agencies performing governmental functions.
An important principle of the Act is that liability is imposed only in situations in which a private person would be liable to the plaintiff under the same circumstances and only to the same extent. This clause has the appearance of fairness, in which parity would exist between the injured citizen and his government. Just as a private citizen would be liable, the government – no longer
2 The Act also contained a provision prohibiting the introduction of private bills for relief for claims thereafter cognizable under the Act.
assuming a monarchial posture – would pay fair damages it caused to the injured party. In reality, no such parity existed, even at the time of passage of the act. For example, the following restrictions have applied:
- Plaintiffs must proceed through a pre-suit administrative procedure;
- All cases must be brought in Federal Court;
- Plaintiffs have no right to jury trial;
- Attorney’s fees are controlled by the statute and the court;
- A two year statute of limitations was imposed;
- The act contained somewhat vague exceptions, which would, in time, become the method by which immunity would be re-imposed.
Not surprisingly, early case law is characterized by a back and forth tug of war between the idea that government should be responsible in parity with the average citizen and the notion that government must be free to exercise its governmental functions without the restraint imposed by potential liability. As the Supreme Court stated in Indian Towing Co. v. United States, 350 U.S. 61,
76 S. Ct. 122, 100 L. Ed. 48 (1955) the Acts provisions are diverse:
The relevant provisions of the FederalTort Claims Act are 28 U.S.C. ss 1346(b), 2674, and
2680(a), 28 U.S.C.A. ss 1346(b), 2674, 2680(a):s 1346(b). ‘* * * the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’
s 2674. ‘The United States shall be liable * * * in the same manner and 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.’
s 2680. ‘The provisions of this chapter and section 1346(b) of this title shall not apply to—
‘(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.’ (emphasis ours)
It should be noted that the FTCA did not create a substantive cause of action against the United States. Instead, it conferred a procedural remedy by which substantive state law could be applied against federal government employees and agencies. For this reason, a significant question in each FTCA case is whether the substantive law of the state where the alleged wrong occurred contemplates recovery under the facts of the case.
In Indian Towing, the 5th Circuit had affirmed the dismissal of the claim of a towing company and its insurer for damage to a chemical cargo which had been submerged when a barge went aground off the coast of Louisiana. The plaintiffs alleged that the grounding occurred as a result of the negligence of the U.S. Coast Guard in its failure to properly manage a light house provided by the government for protection of vessels in navigation in those waters. Therefore, they argued, under the provisions of the FTCA, liability should be imposed. The trial court and court of appeal disagreed. Among other reasons for holding against the plaintiffs, the lower courts cited Dalehite v. U.S., 346 U.S. 15, 42, 73 S.Ct. 956, 971, which had applied the discretionary function exception quoted above. In reversing, the Court stated:
“While the area of liability is circumscribed by certain provisions of the Federal Tort Claims Act, see 28 U.S.C. s 2680, 28 U.S.C.A. s 2680, all Government activity is inescapably ‘uniquely governmental’ in that it is performed by the Government… On the other hand, it is hard to think of any governmental activity on the ‘operational level,’ our present concern, which is ‘uniquely governmental,’ in the sense that its kind has not at one time or another been, or could not conceivably be, privately performed.” …
“The broad and just purpose which the statute was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws. Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.”
In Rayonier Inc. v. United States, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d 354 (1957), consolidated actions were brought in the United States District Court in the State of Washington, seeking to recover damages under the FTCA for losses which they alleged were caused by the negligence of employees of the United States in allowing a forest fire to be started on Government land and in failing to act with due care to put this fire out. Trial court and court of appeal dismissed and affirmed, respectively. In reversing and remanding, the Court stated:
“As we recently held in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct.
122, the test established by the Tort Claims Act for determining the United States’ liability is whether a private person would be responsible for similar negligence under the laws of the State where the acts occurred. We expressly decided in Indian Towing that the United States’ liability is not restricted to the liability of a municipal corporation or other public body and that an injured party cannot be deprived of his rights under the Act by resort to an alleged distinction, imported from the law of municipal corporations, between the Government’s negligence when it acts in a ‘proprietary’ capacity and its negligence when it acts in a
‘uniquely governmental’ capacity. To the extent that there was anything to the contrary in the Dalehite case it was necessarily rejected by Indian Towing.”
Such was the language of a kinder and gentler time. Since those early days of more liberal
interpretation and especially in the recent pronouncements of influential courts, the soothing language of Justices Frankfurter and Black seems to have been lost in the noise of ideology. Three recent Louisiana cases illustrate this point.
Gibson v. U.S., 44 F. Supp.3d 652 (M.D. La. 2014) 2014 WL 4384756