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MISSION & HISTORY OF J.A.I.L.
FEDERAL JUDICIAL ACCOUNTABILITY INTEGRITY LEGISLATION
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FEDERAL TORT CLAIMS ACT - The
FTCA provides a limited waiver of the federal government's sovereign immunity
when its employees are negligent within the scope of their employment. Under the
FTCA, the government can only be sued '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.' 28 U.S.C. S 1346(b).
Thus, the FTCA does not apply to conduct that is uniquely governmental, that is,
incapable of performance by a private individual.
28 U.S.C. S 2680(h) provides that the government is not liable when any of its
agents commits the torts of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights. However, it also provides an
exception. The government is liable if a law enforcement officer commits
assault, battery, false imprisonment, false arrest, abuse of process, or
malicious prosecution. The government is not liable if the claim against law
enforcement officers is for libel, slander, misrepresentation, deceit, or
interference with contract. Congress has not waived the government's sovereign
immunity against all law enforcement acts or omissions.
Furthermore, the FTCA is limited by a number of exceptions pursuant to which the
government is not subject to suit, even if a private employer could be liable
under the same circumstances. These exceptions include the discretionary
function exception, which bars a claim '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.' 28 U.S.C. S 2680(a).
In order to determine whether conduct falls within the discretionary function
exception, the courts must apply a two-part test established in Berkovitz v.
U.S., 486 U.S. 531, 536 ('88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d
1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct
involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322
('91) (quotation omitted). This requirement is not satisfied if a 'federal
statute, regulation, or policy specifically prescribes a course of action for an
employee to follow.' Berkovitz, 486 U.S. at 536. Once the element of judgment is
established, the next inquiry must be 'whether that judgment is of the kind that
the discretionary function exception was designed to shield' in that it involves
considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at
322-23.
Absent specific statutes or regulations, where the particular conduct is
discretionary, the failure of the government properly to train its employees who
engage in that conduct is also discretionary. See, e.g., Flynn v. U.S., 902 F.2d
1524 (10th Cir.'90) (failure of National Park Service to train its employees as
to proper use of emergency equipment was discretionary).
The FTCA specifies that the liability of the U.S. is to be determined 'in
accordance with the law of the place where the [allegedly tortious] act or
omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court
must apply the law the state courts would apply in the analogous tort action,
including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84); see also
Richards v. U.S., 369 U.S. 1, 11-13 ('62).
Under California law, a California court would apply federal law to determine
whether an arrest by a federal officer was legally justified and hence
privileged. See Trenouth v. U.S., 764 F.2d 1305, 1307 (9th Cir.'85) (applying
federal law in an FTCA action for false imprisonment to determine legality of
arrest by Department of Defense officers in California); cf. Gasho v. U.S., 39
F.3d 1420, 1427-32 (9th Cir.'94) (applying federal law in FTCA false
imprisonment action against federal customs officials to determine if probable
cause justified arrest in Arizona).
A plaintiff cannot bring an FTCA claim against the United States based solely on
conduct that violates the Constitution because such conduct may violate only
federal, and not state, law. See FDIC v. Meyer, 114 S.Ct. 996, 1001 ('94).
The substitution provision of the Federal Employees Liability Reform and Tort
Compensation Act (FELRTCA) provides that '[u]pon certification by the Attorney
General that the defendant employee was acting within the scope of his office or
employment at the time of the incident out of which the claim arose . . . the
United States shall be substituted as the party defendant.' 28 U.S.C. S
2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to
'remove the potential personal liability of Federal employees for common law
torts committed within the scope of their employment, and . . . instead provide
that the exclusive remedy for such torts is through an action against the United
States under the FTCA.' H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988)
Under the FTCA, the U.S. is subject to liability for the negligence of an
independent contractor only if it can be shown that the government had authority
to control the detailed physical performance of the contractor and exercised
substantial supervision over its day-to-day activities. See U.S. v. Orleans, 425
U.S. 807, 814-15 ('76); Letnes v. U.S., 820 F.2d 1517, 1519 (9th Cir.'87).
http://www.lectlaw.com/def/f071.htm
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