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Posts Tagged ‘FTCA’

The Fourth Circuit decided today in Ignacio v. United States that the Federal Tort Claims Act waives the immunity of the United States for intentional torts committed by law enforcement officials, regardless of whether the official was engaged in a law enforcement activity when he committed the intentional tort. Judge Floyd wrote the opinion for the court, which was joined in by Judge Shedd and Judge Diaz. Judge Diaz also authored a separate concurrent. According to the opinions, the decision creates a circuit split with the Third and Ninth Circuits. See Orsay v. United States, 289 F.3d 1125, 1134 (9th Cir. 2002); Pooler v.  United States, 787 F.2d 868, 871-72 (3d Cir. 1986).

The case arises out of a dispute on December 2, 2009 between a Pentagon police officer (Lane) and a contract security officer (Ignacio) who were assigned together to the same security checkpoint for Pentagon employees. The two disagreed over the caliber of an M-16 round. “Initially, their disagreement led only to a bet. It escalated, however, on December 15, when they were again stationed at a security checkpoint for Pentagon employees. Lane allegedly told Ignacio that he would ‘hurt him after work’ and then pretended to punch him in the face.” This led to workplace discipline and, eventually, a lawsuit. The United States sought summary judgment on the basis of an exception from the FTCA’s waiver of sovereign immunity.

The FTCA (i) waives the sovereign immunity of the United States for certain torts committed by federal employees, (ii) excepts certain intentional torts from this waiver, and (iii) then excepts from this exception intentional torts committed by investigative or law enforcement officers. See 28 U.S.C. 2680(h). This exception from an exception from the waiver of sovereign immunity is known as the “law enforcement proviso.” Other circuits interpreting this proviso have limited its application to torts committed by investigative or law enforcement officers in the course of investigative or law enforcement efforts. Applying that interpretation, the district court (Judge O’Grady, EDVA) granted summary judgment to the United States.

In reversing and remanding, the Fourth Circuit faulted the other circuits for “relent[ing] to secondary modes of interpretation without first establishing the ambiguity of the statutory text.”  According to Judge Floyd, the text of the proviso is clear and contains no limitation of the sort read in by the other circuits.

In his separate concurrence, Judge Diaz acknowledges that the interpretation adopted by the court “leads to the anomalous situation in which the federal government could be liable for the actions of a law enforcement officer but would be immune from liability for the same conduct committed by another federal employee under the same circumstances.” This result “can be criticized as inconsistent and unreasonable,” but it is not  “so absurd as to allow us to alter the meaning–as other courts have–of an otherwise unambiguous statute.”

In light of the result and apparent circuit split, the United States may be interested in seeking additional review. Given the panel composition and outcome, the likelihood of obtaining a different ruling en banc is very low. If the Department of Justice determines that the issue is sufficiently important to seek certiorari, this case very well could end up before the Supreme Court. There are unresolved factual disputes about whether the Pentagon police officer was acting within the scope of his employment under Virginia law (a necessary predicate to liability under the FTCA), which could counsel against a grant of certiorari. Because sovereign immunity protects not simply against liability but also against having to answer in court at all, however, that consideration may carry less weight in this case.

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The Fourth Circuit issued a published opinion yesterday that appears to cap long-running litigation over how the government should pay for brain damage caused to a child by government doctors. The specific issue on appeal was whether the government could obtain a reversionary interest in the $22,823,718 trust awarded for future care costs. The Fourth Circuit said yes. Judge Motz wrote the opinion in Cibula v. United States, in which Judge Gregory and Judge Duncan joined. (Note: This is the second time that this case has been to the Fourth Circuit. For background on the litigation, see Cibula v. United States, 551 F.3d 316 (4th Cir. 2009).)

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Earlier this week, the Fourth Circuit released an unpublished per curiam opinion in Zeno v. United States that affirms the dismissal of claims under the FTCA and state law. The Fourth Circuit held that the FTCA claims were filed late and that the state claims were barred by collateral estoppel. The panel that issued the per curiam opinion consisted of Judges Duncan and Agee, and Senior Judge Keith (of the Sixth Circuit).

One part of the ruling that may have benefited from additional elaboration was the discussion of the dismissal of the FTCA claims. The district court dismissed the FTCA claims for lack of subject-matter jurisdiction upon concluding that the plaintiffs alleged only intentional torts. The Fourth Circuit did not address this basis of the district court’s opinion, but instead affirmed on the alternative ground that the claims were filed too late. The panel treated this late filing as a defect in subject-matter jurisdiction. By doing so, the panel avoided the need to address whether the federal government’s motion to dismiss for untimeliness, filed just one week before oral argument, was itself untimely.

The Fourth Circuit relied on circuit precedent, Gould v. United States, 905 F.2d 738 (4th Cir. 1990) (en banc), that treats filing outside of the FTCA statute of limitations as a jurisdictional defect. The Gould decision, however, predates a series of cases in the past several years in which the Supreme Court has reconsidered the “jurisdictionality” of various rules.

I have not undertaken extensive independent research, but this analysis by Adam Bain (Senior Counsel, Environmental Torts Section, Torts Branch, Civil Division, United States Department of Justice) indicates that, as of November 2010, the circuits were split on the jurisdictionality of the FTCA statute of limitations. The closest on-point Supreme Court precedent appears to be John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008). In John R. Sand, the Supreme Court held that the statute of limitations for bringing claims against the United States in the United States Court of Federal Claims was jurisdictional.

It very well could be that a thorough analysis of the continuing viability of Gould in light of intervening Supreme Court jurisdictionality precedent  (or even some quick research identifying a controlling precedent containing such analysis) would reveal that the panel’s decision to treat the FTCA statute of limitations as jurisdictional was correct. But the casual invocation of Gould appears to be too quick.

It is obviously much easier, as an academic observer, to suggest that more analysis would have been helpful, than it is to decide, as a judge, how much analysis to provide. But when a court of appeals affirms on alternate grounds, and particularly when the decision on the alternate ground lets the government off the hook for a late-filed claim of untimeliness, an in-depth analysis would appear to be particularly warranted. Because those more familiar with the case could have had many reasons for concluding otherwise, I flag the jurisdictionality issue more for the purpose of bringing attention to the issue going forward than to second-guess this particular decision looking backward.

An examination of this issue by the Fourth Circuit may be warranted in an appropriate case. A quick search as I was writing this post revealed a thorough discussion of the jurisdictionality of the FTCA statute of limitations in an opinion by Magistrate Judge Auld of the Middle District of North Carolina issued this past Friday in Smith v. United States. The issue in that case is the availability of equitable tolling, not waiver or forfeiture by the government through an untimely raising of the statute of limitations, but the “jurisdictionality” characterization is important to both analyses. Guidance from the Fourth Circuit on this issue could have obviated the need for such an extensive legal analysis.


					

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The Fourth Circuit issued four published opinions yesterday.

Three of the opinions were from a single panel, consisting of Judge Niemeyer, Judge King, and Judge Shedd. This panel heard arguments in the appeals almost 11 months ago (October 26, 2010). All three appeals involve claims that arose in some way in out of activities of U.S. contractors in Iraq. Two cases involved claims by Iraqis against U.S. contractors, and one was a claim by a United States Marine against contractor Kellogg, Brown, and Root. In each case, the Fourth Circuit held that the claimants are barred from recovering. (AP story on the Iraqi citizen suits here.)

In Al Shimari v. CACI International, the court held that state law tort claims brought by four Iraqi citizens against a U.S. contractor for damages from torture and abuse at Abu Ghraib are preempted by federal law. The court ruled similarly in Al-Quraishi v. L-3 Services, Incorporated, remanding with instructions to dismiss the claims of 72 Iraqis against a U.S. contractor for damages from torture and abuse at various detention sites in the Iraq war zone. In both cases, Judge Niemeyer wrote the majority opinion, which Judge Shedd joined. Judge King dissented, arguing that the court lacked jurisdiction under the collateral order doctrine, and that, if the court did have jurisdiction, it should have ruled that the claims were not preempted. The opinions in Al Shimari focus more on the preemption arguments, while the opinions in Al-Quraishi devote more attention to the appellate jurisdiction arguments. In Al Shimari, Judge Niemeyer wrote not only an opinion for the panel majority, but also a separate solo opinion “giving additional reasons for reversing and remanding.” Judge Niemeyer argued in this opinion that the plaintiffs’ claims were not only preempted, but also barred by the political question doctrine and derivative absolute immunity.

The third decision from this panel was Taylor v. Kellogg Brown & Root Services, Incorporated. The court held that the negligence claim of a Marine against contractor KBR was barred by the political question doctrine and that the claim was also preempted. The path to these alternative holdings is an unusual one. The header for the opinion (if that’s the right term, not sure) describes the voting breakdown as follows: “Affirmed in part and vacated in part by published opinion. Judge King wrote the opinion, in which Judge Niemeyer joined. Judge Niemeyer wrote a concurring opinion. Judge Shedd wrote an opinion concurring in the judgment, in which Judge Niemeyer joined.” This description seems slightly off. Because Judge Niemeyer joined the opinions by Judge King and Judge Shedd, both of those opinions express the opinion of the court.

The fourth published opinion issued by the Fourth Circuit yesterday was United States v. Blair. The court unanimously affirmed convictions for money laundering, but by a 2-1 vote reversed a conviction for obstruction of justice. The panel consisted of Chief Judge Traxler, Judge Wilkinson, and Judge Wynn. The unanimous portions of the opinion were per curiam. Judge Wilkinson authored the portion of the opinion addressing obstruction of justice; Judge Wynn joined in that section, while Chief Judge Traxler dissented from it.

The opinions in all four of these appeals deserve more attention, which I hope to give them in later posts.

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