Duty III: Government

p. Government is a major force in everyday life. So it's hardly surprising that people are frequently injured by the actions, or inactions, of governments. When should the tort system provide a remedy for these injuries? In what sense is a government like other tort defendants? In what ways is it different? p. The freedom of the government from being sued – a doctrine known as sovereign immunity –“has been enjoyed as a matter of absolute right for centuries. . . . The doctrine, as it developed at common law, had its origins in the feudal system. Describing those origins, Pollock and Maitland [two leading legal historians] noted that no lord could be sued by a vassal in his own court, but each petty lord was subject to suit in the courts of a higher lord. Since the King was at the apex of the feudal pyramid, there was no higher court in which he could be sued. The King's immunity rested primarily on the structure of the feudal system and secondarily on a fiction that the King could do no wrong.” Nevada v. Hall, 440 U.S. 410, 414-15 (1979). As William Blackstone phrased it in his Commentaries on the Laws of England (an extraordinarily influential eighteenth-century treatise), “The king, moreover, is not only incapable of _doing_ wrong, but even _thinking_ wrong; he can never mean to do an improper thing.” p. In the United States, both the federal government and every state government has waived its sovereign immunity in some circumstances. (Moreover, because of the structure of our federal system, Congress has abrogated states’ sovereign immunity with respect to some claims arising under or closely related to constitutional protections. If you’re interested in this area, it’s covered extensively in Constitutional Law, Federal Courts, and in Constitutional Litigation.) p. In this course, we’ll consider some issues connected to one primary federal waiver of sovereign immunity, The Federal Tort Claims Act. p. In pertinent part, 28 U.S.C. § 1346(b)(1) – known as the Federal Tort Claims Act – confers on federal district courts: bq. “exclusive jurisdiction of civil actions on claims against the United States, for money damages … 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.” p. Another provision, 28 U.S.C. § 2680, provides a list of exceptions to the FTCA – that is, refusals by the Government to waive its immunity. Here are some of the most significant exceptions: bq. “(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. bq. (b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter. . . . bq. (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising . . . out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law. bq. (i) Any claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system. bq. (j) Any claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war. bq. (k) Any claim arising in a foreign country. . . .” p. Virtually every state also has a variety of waivers of its sovereign immunity as well.