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power.pptxSECTION VIII: GOVERNMENT LIABILITY
Beginning point: Sovereign immunity
- based on historical notion that “the king can do no wrong”
- in practice: you cannot sue the government without its permission
PS 480, Liability, Sec VIII
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SECTION VIII: GOVERNMENT LIABILITY
Key liability issues in administrative law:
1) exceptions to sovereign immunity, usually created by statute
2) whether and how immunity applies to individuals
PS 480, Liability, Sec VIII
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SECTION VIII: GOVERNMENT LIABILITY
Most cases are “torts”
Tort: “legal wrong done to another person”
Typically people seek correction of, and compensation for, the injury
Liability in these cases is typically a matter of common law, state by state, until preempted by statutes
PS 480, Liability, Sec VIII
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GOVERNMENT LIABILITY
Intentional tort: on purpose: defamation, destruction incidental to legal searches, loss of business due to rules enforcement
- Generally government has immunity against such suits but not when they involve a battery or false imprisonment
Unintentional tort: injury incidental to other activities or decisions
- Generally negligence of some sort
PS 480, Liability, Sec VIII
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SECTION VIII: GOVERNMENT LIABILITY
Negligence: injury which could have been avoided with reasonable care
- most common unintentional tort
- often centers on notion of unfulfilled duty
PS 480, Liability, Sec VIII
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GOVERNMENT LIABILITY
Successful negligence suit requires proof of:
- failure to exercise reasonable care
- failure was proximate cause of injury
failure resulted in specific amount of injury
BUT NOTHING HAPPENS UNLESS SOVEREIGN IMMUNITY IS WAIVED ….
PS 480, Liability, Sec VIII
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SECTION VIII: GOVERNMENT LIABILITY
Federal Torts Claims Act (1946):
Allows suits against federal government under some conditions
- Some elements are determined by state torts claims acts: extent or limits of liability (ex $200,000 in Florida)
PS 480, Liability, Sec VIII
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GOVERNMENT LIABILITY
Exceptions to FTCA:
Executive Functions: specific executive functions and claims in foreign states are excepted
Intentional Torts
Discretionary Functions: When government actor makes a policy choice
Scope of Employment: state by state, basically liability occurs only when government official is acting outside of proper job requirements
Public Duty: liability only occurs where government action or inaction is not owed to specific individual. Harm to private parties that is not targeted is not liable, and failure to act responsibly only liable when specific obligation has been created for particular party
- general public cannot sue
PS 480, Liability, Sec VIII
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FTCA: Exemptions – areas where government is still immune
Intentional torts: harms that arise because of deliberate actions (as opposed to accidents)
Harms to property incident to serving warrant
Harms to reputation due to publication of arrest
Generally remain immune, but exceptions in cases of assault, battery, false imprisonment, false arrest, abuse of process, malicious prosecution
Basically there is a list of exceptions for which the government can be sued.
PS 480, Liability, Sec VIII
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GOVERNMENT LIABILITY: Discretionary Functions Immune
Dahlehite (1953): Texas City explosion
PS 480, Liability, Sec VIII
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GOVERNMENT LIABILITY: Discretionary Functions Immune
Berkovitz v. U.S. (1988): random inspections of polio vaccines not discretionary
United States v. Varig Airlines (1984): random safety inspections on planes okay - discretionary
U.S. v. Gaubert (1991): federal Home Bank Loan Board(FHLBB) took over Independent American Savings Association, a Texas Savings and Loan,
- FHLBB forced management change and following mismanagement cost Gaubert much money
Discretionary action not liable
PS 480, Liability, Sec VIII
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FTCA and Medical Malpractice
FTCA can be amended.
Initially government maintained its immunity in medical care, but individual practitioners were liable
Medical Malpractice Immunity Act allows suits against the federal government but not individual government practitioners
State torts claims acts vary, but generally parallel federal guidelines.
PS 480, Liability, Sec VIII
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Feres doctrine: military people may not sue for injuries suffered in active duty
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Clarke v. OHSU (2007) : Oregon Health Sciences case
Oregon Supreme Court declared in 2007 the existing $200,000 limit invalid since the state constitution states ". . . every man shall have remedy by due course of law for injury done him in his person, property, or reputation."
Oregon legislature raised the limits to an indexed $2-4 million, and $500,000 – $1 million for local governments
PS 480, Liability, Sec VIII
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Individual Immunity
Official immunity
- absolute verse qualified immunity: only a few have absolute immunity
- ministerial v. discretionary duties – if doing something is required, you may be liable for not doing it; if you must make decisions, less liability
good faith immunity
- Knowingly violating constitutional rights creates liability: Section 1983
- special immunity based on job: judges
PS 480, Liability, Sec VIII
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Federal Employee liability: Bivens
Bivens(1971) case involved agents for the old Federal Bureau of Narcotics invading houses and holding the wrong people under armed guard while doing destructive searches
- Court said that actions that directly violate constitutional rights may be subject to liability
PS 480, Liability, Sec VIII
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Local Government Liability under Section 1983
Owen v. City of Independence (1980):
- Firing without due process of chief for issues on evidence room
- SCOTUS: violations of constitutional rights by municipalities doe not receive sovereign immunity protection
PS 480, Liability, Sec VIII
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The Eleventh Amendment: State immunity from federal court lawsuits
Basically protects states from most lawsuits filed in federal courts, unless there is constitutional connection, such as fundamental due process
- States can use same immunity in their own courts
Does not apply to local governments
PS 480, Liability, Sec VIII
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Last details …
Before you can turn to the courts, you must first go through whatever the administrative process is for the agency or government to make a claim. “Exhaustion”
Claims about religious freedom and COVID shutdown:
in state court: asserts governor has overreached on statute giving her power for health shutdown)
federal court claim that the freedom of religion is violated absolutely.
Josephine County has no active cases of COVID and one church would normally have 900 attendees.
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