Last Week!
These are the last assignments for the course. The exam is on Friday, the 21st. I will post additional study materials and the final forum assignment later in the week. In general, use the PowerPoint slides as a guide to the key issues when studying.
Suing Agencies for Tort (Money) Damages to Contest Governmental Policy
The vast majority of tort cases against the federal government and its employees result from ordinary personal injuries and property torts. These include automobile accidents, medical malpractice cases at government hospitals, and the rest of the routine torts that arise from the day-to-day actions of well over a million government employees. For an excellent guide to these torts, see: CRS – The Federal Tort Claims Act (FTCA): A Legal Overview (2019 November) These are important for compensating individuals who are injured by government employees, but these do not raise administrative law policy questions.
We are going to review the basics of suing government officials and then focus on the cases that question government policy through mass tort litigation. These raise difficult policy questions – can the government intentionally injure people while carrying out government policy and escape tort liability? Does the government have a duty to protect people from risk, either human or natural?
These questions have been most clearly raised through flood law. What is the government’s duty to protect against flooding? While climate change is exacerbating the risk of flooding, Louisiana has always been subject to catastrophic flooding from hurricanes and tropical depression-driven rain storms. For those of you who grew up in Louisiana, Hurricane Katrina was likely a major event in your lives. More recently, the Baton Rouge Flood of 2016, Hurricane Ide, and the hurricanes that pummeled Lake Charles have had a major impact on the people of Louisiana. Louisiana is not alone – Hurricane Harvey flooded Houston and Florida has been hard hit by recent hurricanes.
We are going to take a deep dive into the law of suing the federal government for flood damage. We are also going to look at the factual basis of these claims. The mythology is that the Corps of Engineers failed to protect New Orleans, but that the government won on a technicality. In this view, now that the levees are fixed, New Orleans is safe. Based on the property values in New Orleans, this is certainly what the real estate market believes. Is this view correct or is New Orleans a 200-year-old land use planning disaster that has been periodically flooded throughout its history and is just waiting for the next flood? We will look at the Hurricane Katrina Levee Breach cases and think about how they were litigated and whether the courts reached the proper result.
Part 1 – The Federal Tort Claims Act (FTCA)
Introduction to Suing the Government for Tort Damages
Federal Tort Claims Act (FTCA) Statute (PDF)
Scan the statute.
Tort Claims Against the Federal Government – The FTCA and Bivens
This is an explanation of the FTCA and Bivens that I have prepared for use in class
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) – edited
Read this edited version of Bivens. DOJ is arguing that the plaintiff should be restricted to state law claims against the officers, but that those claims would be removed to federal court. They would then be dismissed because the version of the FTCA then in effect did not have the provision that allows certain intentional torts against law enforcement officers. That was added after this to reduce the volume of Bivens litigation.
Video – Suing the Federal Government: Sovereign Immunity, FTCA History, and Bivens
PowerPoint – Suing the Federal Government: Sovereign Immunity, FTCA History, and Bivens
How to File an FTCA Claim
Form 95 – CLAIM FOR DAMAGE, INJURY, OR DEATH
This is the form for filing an FTCA claim. Review it so you understand the required information.
Video – Filing an FTCA Claim
Narrated PowerPoint – Filing an FTCA Claim
The Discretionary Function Exception (DFE)
The DFE makes proving a case under the FTCA fundamentally different from a private tort case. The DFE is intended to protect government decision-making from collateral attacks through tort litigation. It is the second malpractice trap for lawyers in the FTCA. As you will see, it goes against conventional torts jurisprudence, sheltering the government from liability for actions that would result in judgments and even punitive damages against private parties.
Video – Texas Department of Public Safety film of the aftermath of the Texas City Disaster
WWW sites – The Texas City Disaster. April 16, 1947 – Galveston News
These are both background for the Dalehite case in the reader. It is important to have a sense of the stakes in these cases.
Federal Tort Claims Act Reader
These are edited versions of the key cases setting out the judicial construction of the discretionary function exception in the FTCA.
Video – Federal Tort Claims Act – DFE
Narrated Powerpoints – Federal Tort Claims Act – DFE
Resources for the FTCA
CRS – The Federal Tort Claims Act (FTCA): A Legal Overview (2019 November)
A more detailed discussion of the FTCA for reference.
Pfander, James E. and Reinert, Alexander A. and Schwartz, Joanna C., The Myth of Personal Liability: Who Pays When Bivens Claims Succeed (February 27, 2019). 72 Stanford Law Review 561 (2020)
Court of Federal Claims WWW site
History of the United States Court of Federal Claims
For cops who kill, special Supreme Court protection
A good analysis of how the qualified immunity defense has evolved to an almost insurmountable barrier to prosecution and tort claims in police abuse cases.
Justice Thomas’s dissent in Iqbal
Part 2
The Louisiana Tort Claims Act
We are going to return to Louisiana administrative law for a look at the Louisiana Tort Claims Act. This is another area where Louisiana is unique – it abolished sovereign immunity in the 1974 Constitution.
Gregor v. Argenot Great Central Insurance Co., 851 So.2d 959 (La. 2003)
CDC – Vibrio and Oysters
FTCC DFE compared to LATC DFE
This is the lead LA case on the LA-TCA. Points to cover are how the LA-TCA is interpreted compared to the FTCA, how the court resolved the discretionary act question, and whether this case really reinterprets the Fowler case it discusses. Be sure to read the concurrences and dissents. Note that Louisiana abolished sovereign immunity in the 1974 constitution. This makes it much easier to sue, but also note the LA appropriations clause language is going to make it impossible to collect a judgment from a state court proceeding such as a tort claims lawsuit. If you win against the state, you can only collect through a private bill in the Louisiana Legislature. For example, plaintiffs won a substantial verdict against the state because of flooding in 1983 that was caused by the alleged negligent design of Highway I-12, allowing it to act as a dam. (This would have failed against the feds because of the DFE, but this was a proprietary action in Louisiana.) It took 39 years for the legislation to fund part of the jury award: 39 years later, lawmakers endorse $95 million settlement for Tangipahoa Parish flood victims
Video – The Louisiana Tort Claims Act: Basics
Narrated Powerpoints – The Louisiana Tort Claims Act: Basics
Video – The Louisiana Tort Claims Act in Action
Narrated PowerPoints – LA Tort Claims Act in Action
Part 3 – Suing the Government for Flood Damage
The Flood Control Act of 1928 and the FTCA
Almost all old US cities are built on a river or on the coast, usually at the mouth of a river on the coast. Colonial America depended on water for the transportation of most goods domestically and on coastal ports for trade with Europe. Even today, with the interstate highways, railroads, and air freight, the bulk of international cargo still travels by ship, and barges still carry cargo on the Mississippi River and tributaries.
East and Gulf Coast cities are subject to hurricane risk and all river cities are subject to flood risk. In other areas, such as Houston, poor land-use planning has put a significant part of the population at flood risk. Most of the major flood control projects have been built by the Army Corps of Engineers, a federal agency. Whenever there is a major flood, lawyers want to sue the Corps because the existing flood control project did not protect everyone or because the Corps had not yet built a local flood control project.
The Flood Control Act of 1928 (FCA) was passed after the Great Flood of 1927, which catastrophically flooded much of the Mississippi Delta, It expanded the efforts of the Army Corps of Engineers to control flooding on the Mississippi, which had begun after the Civil War. Flood control poses difficult policy problems. It is never perfect so people who think they are protected will want to sue the government when they flood. The FCA includes a broad immunity provision, Section 702, blocking all lawsuits based on flooding.
Flooding is a major policy problem today and it is rapidly worsening with climate change. The Hurricane Katrina Levee Breach litigation is likely the largest tort case filed against the United States. We are going to take a hard look at flood litigation against the federal government. For those from Louisiana, 15 years later Hurricane Katrina is still affecting Louisiana and western Louisiana has been devastated by storms much more recently. It is only a matter of time before New Orleans is again flooded. Houston has had three 500-year floods in a few years, with Hurricane Harvey putting a large part of the city underwater.
We are going to start with the National Mfg. case. Once the FTCA was passed, the courts had to decide whether the FTCA overrode FCA immunity. National Mfg. is the key precedent case and has a good history of flood control issues.
National Mfg. Co. v. United States. Great Western Paint Mfg. Corp., 210 F.2d 263 (8th Cir. 1954) – edited
The next important event is Hurricane Betsy which hit New Orleans in 1965. It flooded the city as completely as Katrina but killed relatively few people. This was partially because the city was better prepared and many people evacuated and partially because the levees built after Betsy gave people a false sense of security and development was extended in low-lying high-risk areas. Betsy spawned the Graci case, which we will read, and helped push Congress into passing the National Flood Insurance Program, which we look at in Climate Change Law.
Remembering Betsy: WVUE-TV 09/1990
This is a 25 year retrospective (1990) on Hurricane Betsy by a New Orleans news station. – pay special attention to the levee comments at about 12:30 and the ending comments at 27. (My recommendation is to watch this at 1.5 speed – it is slow-paced and you will not miss anything.)
Flood Control Act of 1928 – Reader
The next question after the courts found that the Flood Control Act of 1928 immunity survived the passage of the Federal Tort Claims Act was to determine if there any cases where the plaintiffs would be able to avoid FCA immunity and make FTCA claims. One of the cases in the reader was filed after Hurricane Betsy flooded New Orleans in 1965. It alleges that the MRGO increased the flooding in New Orleans. The case in the reader – Graci II – explains the 5th Circuit’s approach to the FCA, which ties it to flood control structures. In the last case, Central Green, the United States Supreme Court finally sorts out the meaning of FCA immunity. When we look at the Katrina materials, we will see whether the 5th Circuit follows the Central Green ruling.
Video – Flood Law: The Flood Control Act of 1928
Narrated PowerPoints – Flood Law: The Flood Control Act of 1928
After the 5th Circuit upheld the ruling that the FCA did not apply to the MRGO litigation, it remanded Graci back to the district court to try the FTCA claim:
Graci v. United States, 435 F. Supp. 189 (1977) (Graci III) – edited
This is the district court ruling after the Hurricane Betsy case was remanded back by the 5th Circuit in Graci II. Notice that the court does not discuss the DFE – it did not find any evidence of negligence in its application of Louisiana law so there was no need to consider the DFE. When you read the Katrina case, notice that the plaintiffs’ lawyers argued the case as if were against a private party. They effectively proved the government’s case for it by inadvertently putting on a prima facie case for a DFE defense. Could they have been misled by Gracie III which looks like an ordinary private tort case?
Video – Suing the Government after Hurricane Betsy
Narrated PowerPoints – Suing the Government after Hurricane Betsy
In re Katrina Canal Breaches Consolidated Litigation, 647 F.Supp.2d 644 (E.D.La. Nov 18, 2009) (appendix)
This is a long and complicated case. I did not edit it because I want you to scan it to get a feel for the factfinding in the case. Use this guide to focus your reading on the key parts so you do not get lost in the weeds: Reading Guide – Katrina Levee Breach – District Court
Video – The Hurricane Katrina Levee Breach Litigation
(Correction! – The narrative says the intro picture of a destroyed highway is I-10, but it is actually Highway 90, looking from Biloxi to Waveland, MS. The I-10 bridge was torn up going from New Orleans east to Slidell.)
Narrated PowerPoints – The Hurricane Katrina Levee Breach Litigation
The Takings Claims
Having lost on the tort claims. the lawyers for the Katrina Levee Breach plaintiffs filed a parallel action on the same facts, but this time alleging that the failure to protect New Orleans amounted to a temporary taking of the plaintiffs’ property. This is an increasingly common end run on sovereign immunity – if the plaintiffs can convince the court that the damages are from a taking, the FTCA does not apply because the Constitution waived sovereign immunity for takings in the 5th Amendment. By taking the case outside of the FTCA, the plaintiffs escape the DFE and Section 702. More generally, if the Court accepts the transformation of tort claims into takings claims, it creates a mechanism for plaintiffs to challenge agency policy decisions outside of the limits of the APA and the FTCA. This may make the government less willing to embark on major flood control projects for fear of taking on liability when they fail.
St. Bernard Par. Gov’t v. United States, 887 F.3d 1354 (Fed. Cir. 2018)
We are going to read this case closely, rather than going through the cases leading up to it. I have highlighted the key points in the opinion.
Video – The Katrina Levee Breach Takings Claims
PowerPoint – The Katrina Levee Breach Takings Claims (not narrated)
Resource Documents
The Hurricane Katrina Litigation Against the Corps of Engineers: Is Denial of Geology and Climate Change the Way to Save New Orleans?
My law review analyzing the cases. This is not required reading.