The Volokh Conspiracy

I don't know anything about the merits of this case, but in general I've never understood the rationale for government employee immunity. The theory is that nobody will be a police officer, prosecutor, judge, etc. if they have to worry about personal liability. Well, I haven't noticed any private sector company having trouble finding employees for that reason. Do General Motors or IBM seriously argue that no one will work for them without a guarantee of immunity?

More to the point, there are an awful lot of people who have been terribly wronged and injured by the mis- and mal-feasance of government employees who know full well that they can hurt people with impunity. Under the current system their victims are just out of luck. Even when Congress passes a statute like 42 USC 1983, with broad, sweeping language about "any" person who under color of law violates someone's rights being liable, those conservative activist courts promptly whittle the plain language down to where it's damn near impossible for most plaintiffs to prevail. (The statute says nothing about well-established rights; that is pure judicial activism.)

So which really would be more unfair -- subjecting government employees to the same set of standards as every other prospective defendant, or the current system where government employees have no incentive to not hurt people?

Dave, I could live with having the government indemnify you for negligence (presumably if you hurt the budget often enough eventually you'd get fired); what I think is intolerable is neither the government nor you being called to account for negligent behavior.

Also, if you were working for GM and in your capacity as a GM employee you commited an intentional tort -- which government employees do with alarming regularity -- you'd certainly be held liable. Why should government employees enjoy special rights?

Dear NI:

You need to do some more research before posting. 42 USC 1983 is an action against state -- not federal - employees who deprive persons of constitutionally protected rights. It has no application to the suit against Yoo.

Further, Dave identified himself as a federal employee. He's governed by the Federal Tort Claims Act, 28 USC 1346(b) and 2671 to 2680. Under the FTCA, the US is liable when an "employee of the government" (defined by federal law) acting "within scope of employment" (defined by the applicable state doctrine of respondeat superior) proximately causes damages by negligent or wrongful act or omission (applying the applicable state law governing private persons). If the government employee meets the tests for "employee of the government" acting "within scope", then the FTCA's remedy is "exclusive" and he/she has personal immunity. See 28 USC 2679. To the same extent that a private employer is held liable under respondeat superior for the intentional torts of its employees, the US is routinely held liable for the intentional torts of its employees.

You conflate two issues when concluding that because a federal employee is personally immune for tort damages there are no consequences. There are a host of administrative sanctions that the federal employee is subject to, up to and including firing. Any "special rights" federal employees enjoy are not due to the FTCA. Rather, they are due to labor laws. While it can be a major pain in the butt to fire a federal civilian employee for intentional misconduct (whether or not there is tort liability), that's an effect of trying to eliminate the effects of using government employment for political patronage. It is also a major pain in the butt trying to fire an employee covered by a union contract for intentional misconduct (whether or not there is tort liability).

What the plaintiffs in Yoo are attempting is to side-step Congress' limited waiver of sovereign immunity in the FTCA (since under the allegations made, there would be no liability for a large number of reasons) by bringing a Bivens suit. This is frequently tried. Usually the availability of the FTCA, even if it will not provide plaintiff recovery, is held sufficient grounds to dismiss the Bivens suit due to 28 USC 2679.

However, even if the FTCA does not provide recovery, plaintiffs always have the option of seeking a private bill for relief through Congress. Admittedly, that's highly unlikely in this case.

The instant suit should be regarded for what it really is -- a publicity stunt (just like Ms. Plame's suit last year) without legal merit.

You don't have to like what Yoo did to understand the broad-ranging bad consequences of confronting every federal employee with having to consider, as part of every decision, "if someone disagrees with my decision - and somewhere, someone will, however unreasonable that disagreement may be -- I face personal suit, and potential liability for defense costs, and personal liability." Do you really want decisions that affect you made based on the consideration of threats made behind closed doors to a government employee by some lobbyist, disgruntled citizen (who may or may not be especially reasonable or even rational), or politician?

While the current law isn't perfect, the consequences of what you propose would be much worse. There is recovery in damages for the vast majority of meritorious cases under the FTCA. There are other laws providing recovery for meritorious cases when the FTCA does not provide recovery. And, consistent with the last clause of the First Amendment, every citizen has a right to petition Congress. Thus, there are mechanisms to correct for injustices. And, while there are malicious and incompetent federal employees -- who are people, so some of them are malicious or incompetent -- there are laws for dealing with them, and, in appropriate circumstances, firing them.

wfjag, I will work on my research if you will work on your reading comprehension. I did not say Section 1983 provides a remedy against federal employees; I merely used it as an example of judicial stripping away of people's access to the courts. And Dave did not say he was a federal employee -- he said he was a prosecutor, which could be either state or federal. Perhaps you know from previous threads that he's federal; I didn't.

Administrative sanctions do not remedy the person who was the victim of the tort. They may provide psychological relief but they don't put money back into bank accounts, return wrongly taken property, or return years wrongly spent in jail.

L.S.,

Now that we're on the subject, why not start with a bigger question still: why is there such a thing as sovereign immunity? I can see why the courts would not want to get involved in political questions, but why should the state be immune from suits?

Because it's the public's money, not "the state's."

If a county board member does something egregious and gets sued for millions, should the county cut the school's music program to pay the lawsuit?

Daniel Chapman, how is "it's the public's money" different in theory than "it's the shareholders' money"? Why should the shareholders suffer because some executive at IBM does a bad thing? So why not just eliminate all tort actions unless you can figure out how to indemnify everybody?

I don't like the idea of cutting the school music program any better than you do, but I like leaving people who've been injured with no remedy even less. The taxpayer/voters at least chose to put that county board member into office; the poor guy who was injured often had no choice in the matter at all.

NI:

I don't know anything about the merits of this case, but in general I've never understood the rationale for government employee immunity.

The government has the guns and the courts and isn't about to make life less pleasant for itself. What's not to understand?

Dear NI:

Since I was mistaken about Dave's employment status, I apologize any confusion about citing 42 USC 1983's applicability to him. I "assume[d]" he was federal based on this and other posts he's made.

Yoo, however, is a federal employee, so 1983 does not apply to the suit that is the subject of the blog.

Still, since Dave is a prosecutor, I don't see any valid reason why he should have to look over his shoulder and consider personal liability when exercising his discretion as a prosecutor. (I acknowledge that this isn't your contention, but, you make thoughtful arguments, so if you agree with it, your thoughts would be appreciated.)

Dear ftca - ha:

I concede that Congress included a number of limitations on the FTCA's waiver of sovereign immunity in 28 USC 2680. The courts have created a few, too, such as the Feres doctrine. However, to specifically respond to your comment, 2680(a) is far from as broad as you imply.

First, DOJ strictly limits assertion of 2680(a). Approval by a Deputy Attorney General is required before an US Attorney may raise the discretionary function issue. DOJ has issued detailed guidance on when it will consider allowing assertion of 2680(a).

Second, the courts have imposed fairly strict standards on the scope of 2680(a).

The Supreme Court has established a two-step test to determine whether a governmental act or omission falls within the ambit of the discretionary function exception. United States v. Gaubert, 499 U.S. 315 (1991). These two prongs track the language of 2680(a). The first asks whether a "'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. . . .'" Gaubert, 499 U.S. at 322 (quoting Berkovitz v. United States, 486 U.S. 531, 536, (1988)). If such a binding directive exists, then "the employee has no rightful option but to adhere to the directive." Berkovitz, 486 U.S. at 536. Failure to abide by such directives opens the United States to suit under the FTCA.

In the absence of such specific directives and where the "challenged conduct involves an element of judgment," id., the second step determines whether the challenged discretionary act or omission is "of the nature and quality that Congress intended to shield from tort liability." United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 813 (1984). The Supreme Court has explained that "because the purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort, . . . the exception protects only governmental actions and decisions based on considerations of public policy." Gaubert, 499 U.S. at 323. What matters is not what the decisionmaker was thinking, but rather the type of decision being challenged.

If the US can prove it meets this two-prong test, then it can rely on the lack of jurisdiction due to the suit being beyond the FTCA's limited waiver of sovereign immunity. If not, then it defends on the same type of negligence issues that a private individual can assert.

And, under the FTCA the Good Samaritan doctrine applies. Even assuming that the decision to undertake or not undertake some action is covered by 2680(a), the undertaking cannot be done negligently.

However, unlike a Bivens suit -- created and defined by the courts on the basis of constitutional intrepretation -- if you don't like 2680(a) or any other aspect of the FTCA, you have to option of contacting your Congressman and having it amended. Members of Congress have to stand for re-election, federal judges are appointed for life, making members of Congress more responsive to citizens' concerns.

I've never understood the rationale for government employee immunity. The theory is that nobody will be a police officer, prosecutor, judge, etc. if they have to worry about personal liability. Well, I haven't noticed any private sector company having trouble finding employees for that reason.
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Police, prosecutors, and even judges have an enormous amount of power to hurt people. Maybe making you look over your shoulder before you exercise it wouldn't always be such a bad thing.

The second quote answers, in part, the first. Government officers do a lot of things that few business agents have to do: point guns at people, tackle them, put them on trial, and lock them in a building for years. That provides a lot more opportunity for liability -- even when done correctly -- than selling someone a computer or fixing their plumbing. Also, the actions of the government are heavily ruled by constitutional constraints, which is not true of businesses (with very few exceptions).

wfjag, yes, thank you for citing the test that anyone familiar with the doctrine would already know. Courts have not imposed fairly strict standards on the doctrine, and since you like to cut and paste so much, you can surely find the numerous court quotes that state that waivers of sovereign immunity should be strictly construed. (I.e., the df exception should be broadly construed.) You can also surely find the numerous court quotes questioning whether it's ever possible to get around the discretionary function exception. It's basically an exception that swallows the rule. If you think the DOJ is careful about asserting it, I have some beach-front property in Arizona I'd love to sell you.

NI: If the corporation ran some sort of grievance system where a shareholder could sue the corporation at the expense of the other shareholders, and if the shareholders could not sell their shares and divest themselves from the corporation, then your analogy would be accurate.

In reality, though, it's a huge difference when a citizen sues the government.

Daniel, there are probably few tortfeasors against whom judgments don't harm innocent third parties. If a husband commits a tort and loses a million dollar lawsuit, you think his innocent wife isn't going to suffer a decline in her own standard of living (even though her only mistake was to marry a tortfeasor)? My point is that if the standard is that we don't allow lawsuits unless we can show they won't even potentially harm innocent third parties, then probably most tort victims will be left without a remedy.

Since responding earlier today I have thought some more about the hypo about the school losing its music program because a county commissioner commits a tort. Let me suggest that such a result might actually be salutary. Most people pay no attention to what government does in their name. If people saw their property taxes doubling to pay off a judgment, they would start to pay more attention in a hurry, with the result that fewer government torts would be committed.

If there's no accountability, then there's really no motivation for the government not to hurt people.

You asked why we have the system we have. I told you. If you don't like it, try to change it, but arguing in an internet forum doesn't seem like the best method.

To the contrary, I think discussing it is a good way to start the ball rolling for change.

"Why should the shareholders suffer because some executive at IBM does a bad thing? So why not just eliminate all tort actions unless you can figure out how to indemnify everybody?"

Isn't that the central talking-point for the hacks advocating immunity for AT&T and Verizon?

So you're saying the higher the stakes, the less the need for accountability? Sorry, that makes absolutely no sense to me.

No, I'm saying that there are some functions that just wouldn't be economical to carry out without some limits on liability. The operative principle is the same as the one that explains why there are often few OB/GYNs, or none, in jurisdictions with easy liability rules and high damages. And I have the feeling that being a police officer is a lot "riskier," in this sense, than delivering babies. Think about it this way: if police officers were as subject to tort liability for what they did as anyone else would be, is there any insurer in the world who would write them a policy? Would taxpayers be willing to pay that much?

Granted, I don't think immunity is the only possible way around this problem. Severely capped damages might also work. Or, establishing a schedule for damages may be better, since it would likely reduce litigation expenses.