3 Specific Statutory Waivers Of Sovereign Immunity

Transcription

1 3 Specific Statutory Waivers Of Sovereign Immunity 3.01 CATEGORIZATION OF STATUTORY WAIVERS OF SOVEREIGN IMMUNITY: SPECIFIC AND GENERAL As introduced by the preceding chapter of this treatise, the concept of sovereign immunity underlies every aspect of litigation with the federal government. For any suit against the government, the plaintiff must find a particular statute that waives the government s sovereign immunity for that type of claim and then must follow the rules set down in that statute. Even when waived by congressional enactment, the power of sovereign immunity persists in the rule of strict construction that the courts apply when interpreting such statutes. 1 To impose some structure for a methodical examination of the long and ever-growing list of statutes that authorize suits against the federal government, its officers, or its agencies, this treatise places statutory waivers of sovereign immunity into two broad collections: specific waivers (Chapter 3) and general waivers (Chapter 4). Although this division is somewhat artificial, it is not without a principled basis and serves to organize the multitude of pertinent statutes into understandable categories (at least for the author of this treatise). By Specific Statutory Waivers of Sovereign Immunity, your author means those statutes that waive the government s immunity for particular types of substantive claims, such as the Federal Tort Claims Act for tort claims, 2 the Suits in Admiralty Act for admiralty claims, 3 Title VII of the 1 See supra See infra 3.02 to See infra 3.09 to

2 102 Litigation With The Federal Government 3.02 Civil Rights Act of 1964 and related statutes for employment discrimination claims, 4 etc. In other words, specific statutory waivers are those that are defined by the legal cause of action permitted under the particular statute. General Statutory Waivers of Sovereign Immunity are those enactments that waive governmental immunity for claims seeking a particular type of relief, namely the Tucker Act for non-tort money claims 5 and the Administrative Procedure Act for specific relief claims. 6 In other words, these statutes waive immunity based primarily upon the relief allowed rather than the substantive nature of the claim or the cause of action. (Of course, there is no true general waiver, that is, no statute that completely eliminates sovereign immunity, even for a particular type of claim or relief.) As the discussion in Chapters 3 and 4 will reveal, Congress has enacted statutory waivers of sovereign immunity that cover most substantive areas of law and apply to most situations in which a plaintiff would seek relief. (Indeed, the basic subjects that students typically study in the first-year of law school torts, contracts, property figure prominently in the discussion.) But the reader should never lose sight of the fact that, because of the doctrine of sovereign immunity, the government always retains advantages and immunities not available to private parties. Moreover, while the statutory waivers of sovereign immunity do create something of a broad network or tapestry of authorized judicial actions against the government, they do not cover everything and each individual waiver is subject to significant exceptions. Moreover, as we ll see in Chapter 4, some statutes overlap at the edges, which causes interpretive problems, particularly when one of those statutes directs claims to a specialized forum with exclusive jurisdiction. 7 PART A: THE FEDERAL TORT CLAIMS ACT 3.02 INTRODUCTION TO THE FEDERAL TORT CLAIMS ACT The horrors that follow when a large airplane strikes the tallest building in a major city became all too familiar to modern-day Americans with the terrorist attack on the World Trade Center on September 11, However, this was not the first time that New York City had experienced a collision 4 See infra 3.12 to See infra 4.02 to See infra See infra 4.11 to 4.13.

3 3.02 Specific Sovereign Immunity Waivers 103 between an aircraft and the city s highest landmark, although the previous episode did not destroy the building involved nor take nearly as many lives. As described by historian Stanley Weintraub: What war might have been like to Americans had enemy technology [in World War II] a little more time to develop came home to New Yorkers when, at 9:49 A.M. on a misty Saturday morning [July 28, 1945], the equivalent of an unguided missile struck the Empire State Building, tallest in the world, 915 feet above street level. A B-25 Mitchell bomber, the type of twin-engine plane used for the Doolittle raid on Tokyo in April 1942, lost in blinding fog as it flew west from Squantum Army Air Force Base in Massachusetts, crashed into the seventy-ninth floor and engulfed two stricken floors in fire from its fuel tanks. 8 Fortunately, very few people were in the building as it was not a work-day; nonetheless, ten people on the ground, in addition to the flight crew of the American military aircraft, lost their lives, others were injured, and substantial property damage resulted. Lester S. Jayson (recently deceased) and Robert C. Longstreth, the authors of a comprehensive treatise on the Federal Tort Claims Act, note that despite the obvious culpability of the military for the 1945 incident [t]he victims of this frightful accident must have been shocked to learn later from their attorneys that there was no judicial remedy available to them through which they could recover damages from the United States Government. The doctrine of sovereign immunity from suit provided an insurmountable barrier. 9 Before 1946, the only means of recovery from the government for injury in tort was a private bill enacted by Congress through the ordinary legislative process. As a matter both of equity to citizens and to relieve itself of the burden of considering a multitude of private bills, Congress finally passed the Federal Tort Claims Act (FTCA) in As the Supreme Court later explained: [The FTCA] was the offspring of a feeling that the Government should assume the obligation to pay damages for the misfea- 8 STANLEY WEINTRAUB, THE LAST GREAT VICTORY: THE END OF WORLD WAR II, JULY/AUGUST 1945, at 294 (Truman Talley Books, Dutton, 1995). 9 1 LESTER S. JAYSON & ROBERT C. LONGSTRETH,HANDLING FEDERAL TORT CLAIMS, 2.01, at 2-3 to 2-4 (Matthew Bender & Co., 2005). 10 Federal Tort Claims Act of 1946, chap. 753, 60 Stat. 843.

4 104 Litigation With The Federal Government 3.02 sance of employees in carrying out its work. And the private bill device was notoriously clumsy. Some simplified recovery procedure for the mass of claims was imperative.this Act was Congress solution, affording instead easy and simple access to the federal courts for torts within its scope. 11 Interestingly, although the Empire State Building episode was not the actual impetus for the enactment of the FTCA (which had been pending in Congress for more than two decades), the statute was made retroactive to 1945, thus allowing the victims of that crash to seek recovery, and indeed they were among the first to file suit under the new statute. 12 The FTCA now is one of about 40 statutes waiving the government s immunity for torts, although the other statutes tend to be narrow and involve specific programs, such as a provision for claims involving the Nuclear Regulatory Commission and a statute allowing property damage claims by government employees. 13 Many of these other provisions are small claims statutes that permit administrative settlement of awards on claims arising from certain specific activities of a particular agency, usually to a stated maximum, and may permit payment without a showing of a wrongful act or negligence by the government. 14 The FTCA is the most comprehensive of these statutes, leading to billions of dollars in claims made against the United States each year, although the actual recoveries are much smaller. As a basic proposition, the United States is liable under the FTCA on the same basis and to the same extent as recovery would be allowed for a tort committed under like circumstances by a private person in that state. 15 However, while the FTCA does waive the sovereign immunity of the United States for tort claims generally, it does not completely abrogate immunity.as further explored in the following sections of this treatise, the government is treated differently than private persons in several respects: the manner for presentation of claims 16 and commencement of litigation, 17 the standards for 11 Dalehite v. United States, 346 U.S. 15, (1953); see also 1 JAYSON & LONGSTRETH, supra note 9, See State Ins. Fund v. United States, 72 F. Supp. 549 (S.D.N.Y. 1947) JAYSON & LONGSTRETH, supra note 9, 1.01 to For an extensive list of these claims statutes, see id to U.S.C. 1346(b)(1), See infra 3.05(a), (c). 16 See infra See infra 3.04.

5 3.03(a)(1) Specific Sovereign Immunity Waivers 105 liability, 18 the exceptions to liability, 19 the damages available, 20 and the exclusion of certain categories of people from eligibility to seek a damages remedy under the FTCA. 21 When Congress enacted the FTCA, it primarily contemplated compensation to those injured by the government under ordinary common-law torts. 22 The most often-repeated example for appropriate governmental liability in the legislative history was that of negligence in the operation of vehicles. 23 While car accident cases remain a common basis for resort to this statutory waiver of sovereign immunity, controversies arising under the FTCA frequently involve governmental conduct rather different than mundane operation of a motor vehicle and invoke theories of tort liability that have substantially evolved and expanded since PREREQUISITES TO SUIT UNDER THE FTCA 3.03(a) The Administrative Claim Requirement 3.03(a)(1) Nature, Purpose, And Timing Of The Administrative Claim Under Sections 2401(b) and 2675 of Title 28 of the United States Code, 24 as a prerequisite to later institution of court action, a potential FTCA plaintiff must: (1) present an administrative claim in writing, that is, provide written notice of the claim, (2) to the appropriate agency, that is, the agency out of whose actions the claim arose, (3) stating a sum certain request for damages, (4) within two years of accrual of the claim See infra See infra See infra See infra Dalehite v. United States, 346 U.S. 15, 28 (1953). 23 H.R. Rep. No. 2428, 76th Cong., 1st Sess., p. 5; Hearings on H.R and H.R. 6463, 77th Cong., 2d Sess., p. 66; Hearings on H.R. 7236, 76th Cong., 3d Sess., pp. 7, 16, 17; Hearings on S. 2690, 76th Cong., 3d Sess., p Cong. Rec. 2192, 2193, 3118; 86 Cong. Rec ; see also Dalehite, 346 U.S. at 28 (citing the legislative reports and noting that car accident cases were the kind of ordinary tort uppermost in the collective mind of Congress ) U.S.C. 2401(b), On the two-year statute of limitations, see infra 3.03(b).

6 106 Litigation With The Federal Government 3.03(a)(1) When Congress amended the FTCA to establish the administrative claim procedure in 1966, 26 the accompanying legislative report explained that the requirement was designed to allow the agency to consider possible settlement without the need for filing suit and possible expensive and timeconsuming litigation. 27 Jeffrey Axelrad, the former director of the Federal Tort Claims Act Staff of the Civil Division at the Department of Justice, explains that the administrative claim process has been a highly-successful alternative dispute resolution tool. 28 He reports that the vast majority of FTCA claims are resolved efficiently, through informal interaction between the claimant and the government, without the added time and delay of involving third-party neutrals, such as mediators or arbitrators, much less involving judicial actors and process through litigation. Section 2675 states that a legal action shall not be instituted unless the claimant shall have first presented the claim to the appropriate Federal agency. Based upon the plain language of the statute, and because every court filing imposes some burden on the judicial system and on the Department of Justice which must assume the defense of such actions, the Supreme Court held in McNeil v. United States 29 that the prior filing of an administrative claim is an absolute prerequisite to any judicial proceeding. Full exhaustion of the administrative remedy is necessary before a lawsuit can be instituted. The Court further concluded that a prematurely-filed lawsuit is of no effect, that is, the action cannot be treated as lingering on the court docket until the administrative claim is denied. Nor can the administrative claim requirement be satisfied by the prior pendency of a prematurely-filed lawsuit. In Brady v. United States, 30 the United States Court of Appeals for the Ninth Circuit rejected the argument that the government was placed on notice of the plaintiff s claim by having been served with an earlier FTCA lawsuit that had been dismissed for failure to exhaust administrative remedies. The court held that although [the plaintiff s] first complaint may have given the agency notice in one sense of the word, it did not give the agency the timely notice of a live controversy that would have allowed the agency to investigate administratively and possibly settle the case before it resurfaced in district court. 26 Public Law , 80 Stat. 306 (1966) (amending 28 U.S.C. 2401, 2675). 27 S. Rep. No. 1327, 89th Cong., 2d Sess. 3 (1966). 28 Jeffrey Axelrad, Federal Tort Claims Act Administrative Claims: Better Than Third-Party ADR for Resolving Federal Tort Claims, 52 ADMIN.L.REV (2000) U.S. 106, (1993) F.3d 499, 503 (9th Cir. 2000).