Category Archives: immunity

Bowen v. Massachusetts

487 U. S. 879

June 29, 1988

This case involved a dispute between the Department of Health and Human Services (HHS) and Massachusetts about the HHS disallowing a reimbursement for Massachusetts health expenditures. Massachusetts wanted the claim heard in District Court, as ostensibly allowed by the Administrative Procedure Act (APA). HHS contended that the APA did not allow suits against it in District Court for “money damages,” and that, in any case, Massachusetts had an adequate remedy through suing in Claims Court under the Tucker Act.

The Court ruled 6-3 that a District Court could have jurisdiction. Stevens said that the phrase “money damages” was a legal term of art referring to monetary compensation for other harm done. By contrast, seeking merely to gain an amount of money legally due was known as asking for “monetary compensation.” Stevens said that legislative history, as well as a lower court opinion by no less of an authority than Robert Bork, proved this distinction. Thus, Massachusetts could still ask for a money judgment against HHS in District Court. Stevens also found that the Claims Court would not offer an adequate remedy. Those courts did not provide equitable relief, such as the declaratory and injunctive relief Massachusetts was also seeking. Furthermore, there was reason to believe that the Medicaid administration questions involved in the case were really beyond the scope of the Claims Court’s wheelhouse.

White concurred in judgment. He cryptically noted that he agreed with all of the majority’s ultimate conclusions, except for its statement that Massachusetts could request monetary compensation in District Court. He said that they would have to settle for mere declaratory and injunctive relief. Scalia, joined by Rehnquist and Kennedy, dissented vigorously. He thought the majority’s distinction between “money damages” and “monetary relief” was total crap, and utterly unsupported by legal history. Almost any suit, he argued, to obtain money is a suit for “money damages.” Thus, the APA barred District Court jurisdiction. He also claimed that the majority’s reasons for holding that the Claims Court could not provide an adequate remedy were completely specious. The Claims Court was more than capable of taking the case and providing an adequate solution for Massachusetts.

Scalia made particular note that both of the case’s major holdings would effectively deprive the Claims Court of most of its docket, and cause a ream of other policy problems. He even predicted that lower courts would probably confine the ruling to its immediate facts, because trying to apply it would cause total chaos in the Claims Court. He closed with these words which I could not more heartily agree with: “Nothing is more wasteful than litigation about where to litigate, particularly when the options are all courts within the same legal system that will apply the same law. Today’s decision is a potential cornucopia of waste.”

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Boyle v. United Technologies Corp.

487 U. S. 500

June 27, 1988

A helicopter manufactured by a military contractor crashed, and the pilot died due to design flaws. The pilot’s family wanted to bring a tort action against the manufacturer under Virginia law. The manufacturer contended that the Virginia law was preempted, and that it had immunity from any tort suit because of its status as a government contractor. This government contractor defense had never been explicitly established by the Supreme Court before, and it was now their job to figure out if it existed or not.

The Court ruled 5-4 that the manufacturer was protected by government contractor immunity. Scalia began by explaining that in a few legal areas of “uniquely federal interests” the courts had the ability to fashion federal common law that could preempt state law. Scalia said that the efficient operation of federal contracts was of sufficient importance to render it subject to the courts common lawmaking power. State laws could be preempted if their was a significant conflict between them and the government’s ability to cheaply contract.

A precise formulation of the immunity and range of preemption was needed. The Federal Tort Claims Act exempted from liability all discretionary functions of government employees. Therefore, Scalia reasoned that government contractors were immune from state laws if they manufactured products that reflected the specifications given to them by the government. The pilots family said that the lower court had not used this precise formulation, but Scalia responded that a jury would probably not rule differently if the lower court had.

Brennan, joined by Marshall and Blackmun, was outraged. The majority violated Erie by fashioning common law that was not necessary at all. The burdens suffered by the government when its contractors got sued were minimal, and the losses to those victimized by defective product designs was great. Brennan said that precedents never intimated that contractors ought to have immunity, and instead suggested that they were perfectly liable to state law claims. He argued that the FTCA had no real relevance to the issue at hand. Simply put, the majority was creating immunity without any green light from Congress, and without any compelling policy reasons to do so. Stevens, in a short dissent of his own, also argued that any contractor immunity should be imposed by Congress and not the courts.

I know I must sound like a broken record by now, but I’ll say it yet again: I hate extensive tort liability, but I hate governmental immunity even more. This decision is very frustrating. All term long, there were less than ten occasions when the solid bloc of 5 conservatives beat the solid bloc of 4 liberals. Why did this stupid ruling have to be one of the rare wins, instead of Mills or Liljeberg?

Schweiker v. Chilicky

487 U. S. 412

June 24, 1988

For a few years in the early 1980s, the Social Security administration was denying meritorious disability claims left and right. Congress finally stepped in to correct this by passing two different laws in consecutive years. Chilicky and others who temporarily lost their benefits during this era were not satisfied with the remedies provided by Congress. They sought a Bivens remedy – a judicially created cause of action that allowed for citizens to get monetary judgments against government agents who violated Constitutional rights. The question was whether a Bivens remedy should be created to address the alleged Due Process violations of the Social Security administration.

The Court ruled 6-3 that such a remedy would be inappropriate. O’Connor stressed that the Court should treat cautiously when creating new Bivens rights. They should not be created when Congress is capable of addressing the harm, and has decided against allowing redress. O’Connor said that Congress had considered the problem of erroneously denied disability claims several times in the 1980s, and never once hinted that claims against government agents themselves were the solution. Furthermore, allowing claims to proceed would bog down a Social Security administration that was already deeply bogged down in its duties. In a footnote, O’Connor dismissed as moot the question of whether one statute explicitly barred the creation of a Bivens remedy for Social Security violations.

In a concurring opinion, Stevens said that the statue referred to in the footnote did not explicitly bar a Bivens remedy. Brennan, joined by Marshall and Blackmun, was aghast at the majority’s contention that mere backpay of erroneously denied benefits was sufficient compensation for the harms suffered by Chilicky. They deserved extra remedies for the horrendous pain and suffering they endured before getting their disability payments back. Brennan could find no policy reasons for not creating a Bivens remedy. Congress had not, by its silence, communicated an intent to bar a Bivens remedy. Nor was Social Security a domain in which the expertise of Congress ought to be deferred to. He was also unsympathetic to the argument that Bivens suits would bog down the agency.

In the other Bivens case I’ve reviewed so far, I felt the majority was wrong to not allow for the claim. This one, I’m not so sure about. You do feel sorry for what Chilicky endured, but I’m not certain Bivens should be extended to cases where the right violated is partially government created. There is no unadorned Constitutional right to disability payments – it’s very much also a statutory one. I think that’s the place I’d draw the line.

Sheridan v. United States

487 U. S. 392

June 24, 1988

Some soldiers failed to keep control of another soldier who was drunk and had a gun. He drunkenly shot some people in a car. The injured people in the car sued. The Federal Tort Claim Act (FTCA) barred torts against government agents where the claim arose out of assault and battery. The government claimed that the drunken soldier’s assault and battery was the fount of the claim, so it had to fail, even if the other soldiers had acted negligently. The injured people claimed that the assailant was not acting within the scope of his employment, so the only true government action did in fact arise from negligence.

The Court ruled 6-3 that the FTCA did not bar the tort claim. Stevens argued that a negligence claim against the government would not “arise” from assault and battery if the assailant had not been connected with the government at all. Because the assailant was not acting within the scope of his employment, there seemed no reason to distinguish the two cases merely due to the accident that the assailant happened to be on the government payroll. Thus, if negligence was the only alleged government action, a FTCA claim could go forward even if it incidentally involved assault and battery that was not government action.

In a concurrence, White confessed that he had once joined an opinion which suggested the opposite of what the majority ruled. Nonetheless, White gamely admitted that he had changed his mind. Kennedy, concurring in judgment, worried that the majority was on the road to obliterating the assault and battery exception from the FTCA entirely, but felt that the facts of the current case warranted allowing the claim to proceed. He also faulted the dissent for its contention that all claims involving assault in their fact patterns would have to be barred.

O’Connor, joined by Rehnquist and Scalia, dissented. She contended that when assault and battery were the direct cause of the injuries complained of, the FTCA flatly banned any claims. She charged the majority with both ignoring and twisting precedents to support its conclusion, and also argued that legislative history supported her own point of view.

I’ve stated my views on these kinds of cases a few times already, but I will do so again. I really hate torts and broad tort liability. But, even so, I hate government immunity even more. Thus, I can only cheer on the majority, and even congratulate Justice White for owning up to a change of heart.

Loeffler v. Frank

486 U. S. 549

June 13, 1988

A Postal Service employee named Loeffler challenged his firing as discrimination under the 1964 Civil Rights Act. He was reinstated with back pay, but he wanted prejudgment interest too. Traditionally, government agencies have been immune from prejudgment interest, but Loeffler was undaunted, and argued that the postal reorganization of 1970 had waived interest immunity.

The Court ruled 5-3 that Loeffler could obtain prejudgment interest (Kennedy did not participate). Blackmun stressed that the postal reorganization had allowed the agency to “sue and be sued,” a clause that has the effect of making government agencies basically like private companies when it comes to lawsuits. The reorganization thus waived interest immunity for all time. True, in a case against the Library of Congress, the Supreme Court had ruled that the Civil Rights Act, standing alone, did not waive interest immunity, but the Library of Congress had no such “sue and be sued” provision like the Postal Service did. Blackmun said that legislative history supported all of these conclusions.

White, joined by Rehnquist and O’Connor, filed one of those annoying dissents which effectively said ‘I agree with what the lower court judges said, but will not repeat their reasoning here – so go find the lower court ruling and read that instead.’

Berkovitz v. United States

486 U. S. 531

June 13, 1988

A baby contracted polio after being given a faulty vaccine dose. His parents tried to sue the government for licensing the manufacturer, and for approving the lot with the faulty dose. The question was whether these government actions were amenable to suit under the Federal Tort Claims Act. The government argued that its actions were discretionary, and thus immune under the FTCA.

Marshall, writing for a unanimous Court, interpreted the breadth of discretionary functions narrowly. Actions were only discretionary if there was a permissible exercise of policy judgment. The Berkovitz family charged that the government had not followed the plain text of several regulations when they licensed the vaccine manufacturer. Marshall agreed that the regulations imposed affirmative duties which were in no way discretionary. Turning to approval of the lot, Marshall found no regulations which imposed affirmative duties. Nonetheless, he said that liability could still be imposed if the government agency had standard internal policies which they did not follow, as the Berkovitz family charged. A remand was necessary to determine all this for sure.

As I’ve expressed before, I usually hate rulings that expand tort liability, but I hate governmental immunity even more, so I’m quite pleased with this ruling.

Van Cauwenberghe v. Biard

486 U. S. 517

June 13, 1988

Van Cauwenberghe (we’ll call him V.C. from now on) was a Belgium citizen who was extradited to America for a criminal trial. While in America for the trial, he was served with a closely related civil lawsuit. V.C. moved to dismiss the civil suit on the grounds of forum non conveniens, and on the grounds that criminal defendants present in America on extradition were immune from civil suits. The District Court ruled against these two grounds, and V.C. tried to appeal immediately, before the civil trial. The question was whether V.C. could appeal the jurisdictional issues prior to the completion of the District Court trial.

The Court ruled unanimously that early appeal was not possible. Marshall said that Court precedents allowed early appeal only if the issue was readily separable from all other issues in the trial, and only if review would be impossible after the full trial. With respect to immunity, Marshall held that the ultimate right sought by immunity was the right to not be subject to a binding final judgment, and not the right to have no trial at all. Thus, the immunity issue could still be reviewable after the full trial. With respect to forum non conveniens, Marshall said the determination was too intertwined with various other trial issues, and not readily separable at all. Poor V.C. was just going to have to go through his civil suit.

At a minimum, I wanted to see a dissent. The jurisdictional concerns raised by V.C. are not trivial, and I do think an alleged complete lack of jurisdiction is important enough for immediate appellate review. On both grounds, Marshall’s reasoning does not entirely satisfy. Reading this opinion leaves the unfortunate aftertaste of a foreigner being railroaded, à la Amanda Knox.

Allied Tube & Conduit Corp. v. Indian Head, Inc.

486 U. S. 492

June 13, 1988

The National Fire Protective Association is a professional group dedicated to publishing expert quality electrical codes. Indeed, almost all states adopt the Association’s code into law wholesale. When polyvinyl electrical conduits were developed in 1980, the steel industry worried that polyvinyl would overtake steel as the standard conduit material. Thus, the steel industry packed the membership of the Association, for the sole purpose of determining that polyvinyl was unsafe in the 1981 electrical code. The polyvinyl industry charged that this brazen act of ballot stuffing violated antitrust law. The steel industry replied that quasi-legislative bodies were immune from antitrust liability.

Brennan rejected claims of immunity in a 7-2 decision. Because the Association had no official government capacity, and was in no way answerable to the American public, it was not a quasi-legislative body. The steel industry, undaunted, insisted that it still had immunity because its ultimate aim in overrunning the Association was to influence the state legislatures when they passed the legal electrical codes. Brennan would have none of this. Traditional political advocacy, like direct appeals to legislatures, public interest advertising, and boycotts were still immune. Cynical attempts to take over respected, non-partisan, and expert standard setting associations were not.

White, joined by O’Connor, charged in dissent that the actual holdings of the immunity precedents had been ignored. White could not get around the fact that the steel industry’s ultimate goal was to influence state legislatures by means of the Association code. It was no less intrinsically political at heart than direct lobbying of legislators. While the steel industry’s actions within the Association were scurrilous, they were also a rare aberration, and White did not wish to see rare aberrations warping antitrust immunity doctrine.

I’m not certain, but White may be correct. The old saying ‘hard cases make bad law’ applies well to this one. The steel industry acted unethically, and I’m glad they got punished for it. At the same time, making professional organizations which publish industry standards liable to antitrust suits is a rather slippery slope.

 

Patrick v. Burget

486 U. S. 94

May 16, 1988

When a hospital doctor named Timothy Patrick decided to also work as an independent medical provider, the other doctors at the hospital started being total jerks to him. Using peer-review proceedings, the other doctors disciplined Patrick, and got ready to fire him, and all of this was done, according to Patrick, in bad faith. Patrick resigned rather than risk being fired, and sued the other doctors for antitrust violation, since they were ultimately trying to squelch his independent practice. Because the peer-review processes were mandated and controlled by state laws, the other doctors argued that they were immune from antitrust suits under the state action doctrine.

The Supreme Court unanimously found otherwise (Blackmun did not participate). Marshall explained that the state action exemption only existed when the state had active supervision over any proceedings. While the state laid down basic principles of medical peer-review, it did not actively supervise the discipline or firing decisions in any real way. Marshall was even less impressed by the argument that the peer-review decisions were subjected to legal review. Minimal judicial review did not trigger the state action doctrine either. I liked this ruling, but mostly because the other doctors really were a bunch of petty bullies who needed to be taken down several notches.

South Carolina v. Baker

485 U. S. 505

April 20, 1988

Because unregistered bonds were often used for tax evasion, Congress imposed a heavy tax on income from unregistered bonds. This made unregistered bonds so unattractive that it no longer seemed reasonable for several states to even issue them. South Carolina said this squelching of unregistered bonds violated the Tenth Amendment, as well as the historic intergovernmental tax immunity given to state-issued bonds.

Nonetheless, the Court upheld the new tax law 7-1 (Kennedy did not participate). Brennan reminded poor South Carolina that, under the Garcia case from 1985, the Tenth Amendment was all but eviscerated. Moving on to a more specific claim of commandeering – that states were being conscripted to pass new laws on bonds – he said that as long as the states passed the new laws out of indirect coercion rather than direct forcing, there was no Tenth Amendment problem. Finally, Brennan faced the bond tax immunity argument from the 1895 case Pollock v. Farmers’ Loan & Trust Co., and simply overruled Pollock. It used to be that every tax on a contract with the government was thought immune, but that doctrine had faded away decades ago, and bonds were the last surviving vestige of it.

Stevens said in a brief concurrence that even without Garcia, the Tenth Amendment argument still would have failed. Scalia joined the majority opinion except for the Tenth Amendment part. He wrote that he agreed with the conclusion, but disagreed with the majority’s almost gleeful minimizing of the Amendment. Rehnquist concurred in judgment. A Special Master had concluded that the bond tax would not be a big burden on states, and that essentially concluded the case for him.

O’Connor dissented sharply. She would not tolerate the continued evisceration of the Tenth Amendment, and also objected to overruling Pollock. The erosion of the doctrine underlying Pollock was based on the non-burdensome nature of the tax on government contracts. Contra Rehnquist, she interpreted the Special Master to conclude that the bond tax would indeed be burdensome to states. Thus, state issued bonds still deserved immunity. This is one of those odd cases where O’Connor was substantially more ‘conservative’ than Scalia and Rehnquist. Whatever else might be said about her, she truly was possibly the best federalist the Court has ever had in the post-Four Horsemen era.