Today, of course, the federal government is one very big business. At around two million civilian employees and growing, the federal government is one of the nation’s largest industries, twice the size of our automotive industry, for example.5
The government business is prosperous as well as huge: a quarter of its employees pull down over $100,000 a year, more than twice the national family median income, even before their considerable job benefits are added in.6 In fact, of the nation’s five highest-income counties, four are suburbs of Washington, D.C., (Silicon Valley isn’t even close: California’s Marin and Santa Clara Counties have median household incomes about 20 percent below these D.C. suburbs).7
The national government is also by far our largest landowner. Even leaving out Indian reservations, the feds hold 604 million acres, about 28 percent of the surface of the nation, and 47 percent of the land area of eleven coterminous western states.8
What would be the public, and Congressional, reaction if a corporation of this size, power, and prosperity were to demand legal immunity from lawsuits because having to compensate people injured by its negligence would cost it billions? The first reaction would probably be to question the sanity of the speaker, and the second would be outrage. If this imaginary corporation inflicts harm at that level, it certainly should be required to pay. Someone must pay for medical care, or suffer lost wages: better this negligent corporation pays than an innocent member of the public. Besides, if this corporation inflicts this much harm on us today, how much more will it inflict if given immunity from any responsibility?
Phillip Garrido was twice convicted in federal court of kidnapping and rape; he admitted that using drugs gave him uncontrollable violent sexual impulses. When paroled, he quickly committed seventy drug-related parole violations, while his parole officers did nothing. He then kidnapped an eleven-year-old girl, held her captive in a shed and raped her for eighteen years, during which she was forced to deliver two children without medical assistance. The Ninth Circuit Court of Appeals ruled that the parole officers had no legal duty to protect her from such a monster: “While our hearts are with Ms. Dugard, the law is not.”9
THE FEDERAL TORT CLAIMS ACT ACTUALLY ENCOURAGES AGENCIES TO ENDANGER US
But the Federal Tort Claims Act and its discretionary function exception go beyond immunizing government negligence. They actually create a perverse incentive for bureaucrats to make operations more dangerous. The best way for a government agency to reduce its legal risk is by doing absolutely nothing about safety. As an illustration, let’s take a real case, Myslakowski v. United States.10
The U.S. Postal Service (USPS) had long engaged in auctioning off its used delivery vehicles (at the time, a modified, enclosed one-man Jeep, with the driver’s seat on the right) to the public. In 1971, the USPS commissioned a safety study of the vehicles, which found that they had a propensity to roll over and that tendency increased with the weight of the load they carried. USPS deliveries were made carrying only the driver and some mail, so the risk was acceptable. But if used to carry multiple passengers, they would become dangerously unstable.
The public was never warned that vehicles the USPS was selling were not safe for carrying passengers. When a former USPS vehicle flipped carrying four passengers, one was killed and another seriously injured. A lawsuit was filed.
The trial court ruled against the government: the decision to sell the vehicles was protected by the discretionary function exception, since it was a policy decision as to how best turn government assets into money, but the failure to give a warning was not; there was no good policy reason to put the government’s customers at risk. The Sixth Circuit Court of Appeals, however, reversed the decision and ruled for the government on all counts: every aspect of the sale, including failure to warn, was discretionary. (How was not warning customers a policy decision? The court reasoned that the government might choose to get a better price by not telling people it was selling a dangerous product!) Whether the USPS employee selling the Jeeps gave a safety warning or not, the USPS could not be sued so long as the USPS did not give the employee an order to warn people.
Now, let’s change that scenario a little. Suppose that someone in the USPS hierarchy read the 1971 safety study, understood that the agency was selling vehicles that would become dangerous if used as passenger vehicles to people who were likely to use them as passenger vehicles, and ordered that buyers be warned. That would certainly be a wise and moral decision, but what are its legal effects?
In the absence of any safety warning policy, the government was immune from lawsuit whether the employee selling the vehicles warned the buyers or did not warn them; he had discretion there and the government was immune. But now, that employee has been ordered to give warnings. If he negligently fails to do so, he has violated an order he had no discretion to ignore, and so the government is liable. The government is only vulnerable to lawsuit if its managers and lower-level employees try to do the right thing! So long as they completely neglect safety and give no safety-related orders, the discretionary function exception protects everything. As one court noted, in dismissing a suit over a Forest Service swimming area, the injured person could have won “if there had been a lifeguard on duty who acted negligently,” but since the Forest Service provided no lifeguard at all, the government won.11
It was common knowledge in the U.S. Postal Service that mailman Leslie Tucker was a child molester. As the Seventh Circuit Court of Appeals noted, “Tucker came to be called ‘Lester the Molester’ by his co-workers because of his notorious sexual abuse of the children who lived along his routes.” USPS responded by giving him a desk job, then returning him to delivery duty, where he molested a seven-year-old girl. The Seventh Circuit ruled that the USPS could not be sued. In addition to its exception for “discretionary functions,” the Federal Tort Claims Act also has an exception for assault and battery cases. The Seventh Circuit ruled that Congress thus had not consented to be sued for assault and battery; child molestation involved assault and battery, and thus the USPS had complete legal immunity to knowingly set child molesters loose on the public.12
Of course, some government employees do the right thing anyway, but the incentive is never to include safety in planning. Ignore safety, and the agency usually wins any lawsuit: it has been estimated that the discretionary function argument has a 76 percent success rate in court.13 Ostensibly, the discretionary function exception has a limitation: it only protects decisions that relate to government “policy.” But the courts have made this limit almost meaningless. After all, the Supreme Court has ruled that the government must only show that the decision was “susceptible to policy analysis,”14 not that the decision really did involve policy decisions. That is, lawsuits are not allowable if the government attorneys can think up any way in which the agency could have based its negligence on policy grounds, on balancing one consideration against another, even if the agency actually never thought of the safety issue. Any reasonably inventive government attorney can make any government action or inaction into a potential policy decision; if nothing else, making things safe would have required spending some money, and that is a policy decision. Some real-world examples:
• Alleged negligence in rescuing an accident victim (delay and failure to provide a backboard for a spinal injury case) was ruled to be a policy decision since “Limited staff and financial resources requires an assessment of each situation as it arises, balancing the potential need for assistance with the resources available.”15
• The decision to leave open hiking trails that were known to be dangerous in winter without posting a warning sign was held to be a policy decision since the Park Service could have been “unable to maintain all the trails in the park, cognizant that posting warning signs would inadvertently attract visitors to unmaintained trails, and unable to post signs throughout the park …”16 (The government attorneys got very inventive here, arguing that the Park Service could have feared that posting warning signs would attract people to the
dangerous trails.)
• An alleged negligent decision to design a government electrical system without a ground fault circuit interrupter (which reduces the risk of electrocutions) was a policy decision because it was a “discretionary decision at a planning level, similar in character to formulation of safety specifications.”17 (Imagine what it would be like if all builders could ignore building codes. The paradox here is that the government has staked out a libertarian paradise—for itself only.)
• The decision to build a government water canal without concrete lining was a policy decision because the “decision not to line fully the canal was rooted in economic policy judgments.”18
• The decision to release water from a dam without warning a marina downstream (and indeed, after refusing to discuss the timing of the release with the marina’s owner) was immune from lawsuit; the decision to not warn the owner “goes to the manner of exercise of a discretionary function.”19 (The discretionary function exception is so broad that there have been suggestions to rename the Federal Tort Claims Act the “Federal Negligent Operation of Motor Vehicles Act,” on the basis that bad driving is the one human function clearly outside the exception.20)
Thus, virtually any decision of a government employee, with the exception of steering an automobile, will be considered “discretionary” and protected from lawsuits for negligence, provided that no one gives anyone orders about maintaining safety. The federal government—our largest employer and biggest landowner—is free to harm the taxpayers who finance it and to walk away. The structure of the Federal Tort Claims Act goes beyond allowing unsafe agency behavior. It encourages it.
REFORMING THE FEDERAL TORT CLAIMS ACT
A fundamental change in the statutory system is long overdue; one could even say that Americans are literally dying for change. What follows here will be an outline for a set of amendments that will convert the Federal Tort Claims Act into something that does not encourage dangerous negligence and affords reasonable compensation to those harmed by the federal leviathan.
One thing should be understood at the outset. The federal government is not some small and helpless entity that must be protected against those who would take advantage of it. The federal government has massive advantages in any civil case. For any government agency, its Justice Department attorneys are, essentially, free, as is their support staff, and there is an essentially unlimited budget for interviews, overhead, research, and travel. The government lawyers know they will be paid biweekly whether they win or lose.
The plaintiff, the person or persons suing the government, is often quite poor: compare the people devastated by the Texas City explosion to the Defense Department, the Utah ranchers to the nuclear program, or the U.S. Department of Veterans Affairs to its patients. If the plaintiff is lucky, his attorney will work on a contingent fee basis and get paid a percentage of the win, if and when they win. If not, the attorney requires a hefty up-front retainer fee, and in either case the client or the attorney must pay experts out of their own pocket. To top that off, the Federal Tort Claims Act limits any contingency fee to 25 percent, well below attorneys’ traditional 33 percent level.
In short, no sane attorney will take a case against the federal government unless he is almost certain of winning and the damages are in the hundreds of thousands of dollars. To a large extent, the legal system itself is self-regulating against frivolous lawsuits against the government.
The mineral fiber asbestos was once used for insulation—until it was discovered that its dust caused asbestosis, a serious and often fatal lung condition. When the federal government was sued for having sold large quantities of asbestos, the Third Circuit held that the discretionary function exception barred the suit: the harm resulted from “the implementation of the mandate to minimize costs to the government in the sale …”21 In other words, the government decided it would get a better price if people didn’t know the stuff was dangerous.
The amendments I propose could be entitled the “Federal Accountability in Damages Act” (FADA) or any other similar simple title. A draft of such a statute may be found in the appendix to this book. In place of the discretionary function blanket exception in the Federal Tort Claims Act, FADA would introduce a four-level system for defining liability for governmental harms to person or property, dividing the litigation world into claims that are not allowed, those that require proof of intentional misconduct, those that require proof of reckless misconduct, and those that can be based on ordinary negligence. (In the real world, the last category would be by far the broadest.)
Level 1. No Lawsuits Allowed
The highest level of restriction, no lawsuits for damages allowed, would be reserved for events that must be spared from legal liability even if the person causing the event actually intended to inflict harm. That is, these are situations where it is imperative to preserve freedom of action unaffected by risk of suits for damages. Since lawsuits cannot be brought for these actions even if the government decision maker was out to “get” someone, the definitions should be kept strict and narrow. Logical inclusions would be:
• The enactment of legislation;
• The promulgation, or failure to promulgate, regulations and executive orders;
• Judicial decisions and processes;
• Failure to control or regulate a nongovernmental actor, other than a prisoner in confinement or person on supervised release (suit would be allowed if the government went beyond failing to control the nongovernmental actor and encouraged or aided him in his wrongdoing);
• Spending money and provision of services per se (carefully defined so as not to revive the discretionary function exception).
In short, no one can sue Congress for passing legislation, or the courts for enforcing it, or an agency for failing to regulate or restrain a member of the public. Further examples could be taken from the Federal Tort Claims Act exemptions listed in 28 U.S.C. §2680—lawsuits covered by admiralty law, military combat activities, etc.
Level 2. Lawsuits Allowed If the Government Actor Intended a Legal Wrong
For these claims, proof of negligence would not be enough; the government employee must have actually intended to commit a legal wrong. Candidates for inclusion:
• Wrongful prosecution, that is, conducting a prosecution where there was not even “probable cause” to believe a person had broken the law;
• Abuse of process, the use of legal process for improper purposes (e.g., filing a criminal prosecution in hopes of forcing a person to give up something valuable);
• Assault and Battery;
• Defamation.
The Federal Tort Claims Act now entirely prohibits lawsuits on many of these grounds, so long as the government employee was not a law enforcement agent (why should you be able to sue if an FBI agent beats you up, but not if a mailman does so? I have no idea. Ask Congress, they wrote the law). This was understandable at one point in time: if a federal employee wanted to sucker punch or slander a citizen, let the wronged person sue the employee, but not the government. The wrongdoer wasn’t working on behalf of the government when he inflicted the harm; he was acting on his own, so sue him.
Then came the 1988 Westfall Act, in which Congress provided that—in any personal injury suit against a federal employee—the United States Department of Justice (USDOJ) might certify that the employee was acting within the scope of their official duties, in which event the case would be removed to federal court, the employee would be dismissed from the case, and the United States would be substituted as the defendant.22 Since the government could not be sued for wrongful prosecution, abuse of process, or defamation, the practical effect was that neither the federal employees nor the government could be sued for those offenses. The requirement that USDOJ certify that the employee was acting within the scope of their employment was no protection. USDOJ issued such certifications for an EPA employee driving home from work while blind drunk,23 an Army major who sexually harassed a university secretary,24
and a government doctor who sexually groped his patients.25 We might wonder how any of those offenses fall within a federal employee’s scope of employment, but USDOJ was so zealous in protecting federal employees that it saw nothing wrong with so certifying.
Federal employees have the advantage over James Bond. Agent 007 was only licensed to kill. By virtue of the Westfall Act, federal employees (other than law enforcement officers) are licensed to kill, batter, maliciously prosecute, and defame. The Westfall Act needs to be overturned, and FADA does just that.
Level 3. Lawsuits Allowed If the Governmental Employee Acted Recklessly or with Gross Negligence
The law has a concept of recklessness, or gross negligence, which is something more than simple negligence: it essentially requires a person to consciously disregard the rights of other persons. The intention required is not “I intend to hurt someone”; it is more like “I don’t care whether I hurt someone.” The classic example is the drunk driver. He doesn’t intend to crash into someone, but has consciously taken actions that greatly raise the risk that he will do so, and thus disregarded others’ right to be free from collisions. FADA would require proof of government recklessness before suit could be filed over certain things. Good candidates for inclusion here would be the following:
• Failure to control a prisoner while on supervised release or to prevent his escape if confined;
• Failure to arrest a criminal offender, where it was foreseeable that the offender would harm others in the near future;
• Failure to enforce existing laws or regulations, under conditions where the failure to enforce foreseeably leads to personal injury.
Level 4. Lawsuits Allowed If Negligence Is Proven
In the law, negligence consists of failure to do what a reasonable person would have done to observe the rights of others. That standard would apply to all remaining governmental actions that inflict harm. It would thus cover the majority of government-inflicted harms.
I'm from the Government and I'm Here to Kill You Page 22
