Circuit Splits

Federal Tort Claims Act: For Whom the Equity Tolls

The doctrine of equitable tolling is a “drastic remedy” whereby a court may, under extraordinary circumstances, overlook a plaintiff’s failure to file their complaint within the statutorily allotted period of time. To sue the United States under the Federal Tort Claims Act, a plaintiff must, among other things, file their claim “within six months after the date of mailing . . . of final denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b).

In its opinion last week in Goldblatt v. Nat’l Credit Union Administration, a Second Circuit panel noted that, “[i]n this Circuit, it is an open question whether equitable tolling is available for tort claims brought pursuant to the FTCA.” No. 11-4307-cv (2d Cir. Nov. 9, 2012) (unpublished). The court further noted that “[o]ther circuits are split on this issue. Compare Santos ex rel. Beato v. United States, 559 F.3d 189, 194-97 (3d Cir. 2009), with Adams v. United States, 658 F.3d 928, 933 (9th Cir. 2011), and In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 646 F.3d 185, 189 (5th Cir. 2011).”

[*Image courtesy of scrigno on Flickr.]

Circuit Split Roundup

For the latest coverage of noteworthy issues dividing the federal courts, check out the following links:

• Michelle Olsen, Circuit Split Watch: When Sanctioned Attorneys Can't Pay, Appellate Daily (Aug. 30, 2012).

• Tom Zuber & Jeff Zuber, Louis Vuitton Malletier S.A., v. Ly USA: Second Circuit Splits, Allows Attorney’s Fees Under § 1117(c) Trademark Infringement, LawUpdates.com (Sept. 5, 2012).

• Michelle Brauer Abidoye, United States: Fourth Circuit Joins Other Circuits And Takes A Narrow View Of The CFAA In Employee Data Theft Case, mondaq.com (Sept. 4, 2012).

• A. Benjamin Spencer, Fort Lee soldier’s custody case gets SCOTUS hearing, Split Circuits Blog (Sept. 9, 2012).

Circuits Split Over Discretionary Function Exception's Burden of Proof

Today's circuit split involves the Federal Tort Claims Act (FTCA), which generally permits civil actions against the United States “for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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. § 1346(b)(1). 

The FTCA’s discretionary function exception, however, “immunizes conduct of government employees that arises from legislative and administrative decisions grounded in social, economic, and political policy, protecting against liability that would seriously handicap efficient government operations.” Carroll v. U.S., 661 F.3d 87, 99 (1st Cir. 2011).

Last Tueday a federal court in Puerto Rico identified a circuit split over the two-tiered framework used by courts to determine the applicability of the FTCA's discretionary function exception:

The applicability of the discretionary framework [sic] exception is determined according to a well-established two-tiered framework. Said exception applies if the conduct underlying the FTCA claim (1) "involves an element of judgment or choice, and (2) was susceptible to policy-related analysis." Sanchez ex rel. D.R.-S. v. U.S.,671 F.3d 86, 93 (1st Cir. 2012) (citing Limone v. United States, 579 F.3d 79, 101 (1st Cir. 2009) (quoting Berkovitz v. United States, 486 U.S. 531, 536, 108 S. Ct. 1954, 100 L. Ed. 2d 531, (1988)) (internal citations and quotation marks omitted). "Conduct does not involve an element of judgment or choice if a "'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,' because 'the employee has no rightful option but to adhere to the directive.'" Sanchez ex rel. D.R.-S., 671 F.3d at 93 (citing United States v. Gaubert, 499 U.S. 315, 322, 111 S. Ct. 1267, 113 L. Ed. 2d 335 (1991)). Furthermore, conduct is susceptible to policy analysis if some plausible policy justification could have undergirded the challenged conduct; it is not relevant whether the conduct was the end product of a policy-driven analysis. Sanchez ex rel. D.R.-S., 671 F.3d at 93 (citing Shansky v. United States, 164 F.3d 688, 692 (1st Cir. 1999)). Thus, a court must first identify the conduct alleged to have caused the harm and then determine whether the conduct can be fairly described as discretionary, and if so, decide whether the exercise or non-exercise of the granted discretion is actually or potentially influenced by policy considerations. Carroll, 661 F.3d at 100 (citing Fothergill v. United States, 566 F.3d 248, 252 (1st Cir. 2009)).

If the challenged conduct is both discretionary and policy-based, there is no subject-matter jurisdiction for the claim. Carroll, 661 F.3d at 100 (citing Montijo–Reyes, 436 F.3d at 24). First Circuit precedent places the burden on the plaintiff to show that discretionary conduct was not policy-driven and, thus falls outside the exception. Carroll, 661 F.3d at 100 n. 15 (citing Bolduc, 402 F.3d at 60, 62). However, the First Circuit has noted that there exists a circuit split as to whether the plaintiff or the government bears the burden of proof regarding the discretionary function exception. Carroll, 661 F.3d at 100 (citing Hart v. United States, 630 F.3d 1085, 1089 n.3 (8th Cir. 2011)).

Timmerman v. United States, CIVIL NO. 11-1816(JAG) (Dist P.R. June 5, 2012). 

In St. Tammany Parish ex rel. Davis v. FEMA, the Fifth Circuit offered a more comprehensive overview of this split in authority:

While the plaintiff bears the burden of showing an unequivocal waiver of sovereign immunity, it is less clear whether the plaintiff or the government bears the burden of proof to show whether a discretionary function exception to a waiver of sovereign immunity applies. Our sister courts of appeals are split. Some place the burden on the plaintiff to show that the government's conduct does not fall within the discretionary function exception. SeeAragon v. United States, 146 F.3d 819, 823 (10th Cir.1998). Others place the burden on the government to show that the exception applies. See Merando v. United States, 517 F.3d 160, 164 (3d Cir.2008); Terbush v. United States, 516 F.3d 1125, 1128 (9th Cir.2008) (citing Prescott v. United States, 973 F.2d 696, 702 n. 4 (9th Cir.1992)); Stewart v. United States, 199 F.2d 517, 520 (7th Cir. 1952). Other courts of appeals have declined to decide the issue, being uncertain whether the Supreme Court in Gaubert intended to place the burden of proving the non-applicability of the exception on the plaintiff as a consequence of its holding that "[f]or a complaint to survive a motion to dismiss, it must allege facts which would support a finding that the challenged actions are not the kind of conduct that can be said to be grounded in the policy of the regulatory regime," 499 U.S. at 324-25, 111 S.Ct. 1267. See Sharp v. United States, 401 F.3d 440, 443 n. 1 (6th Cir.2005) (declining to decide whetherGaubert altered its earlier view that the government bears the burden); Ochran v. United States, 117 F.3d 495, 504 n. 4 (11th Cir. 1997) (refusing to decide which party bears the burden, but placing the "burden of production of the policy considerations that might influence the challenged conduct ... on the Government" after the plaintiff alleged facts facially placing the claims outside of the exception); Autery v. United States, 992 F.2d 1523, 1526 n. 6 (11th Cir.1993) (refusing to decide which party bears the burden); Kiehn v. United States, 984 F.2d 1100, 1105 n. 7 (10th Cir.1993) (refusing to decide which party bears the burden). But see Prescott, 973 F.2d at 702 n. 4 (holding that the government bears the burden because Gaubert decided that "plaintiff must advance a claim that is facially outside the discretionary function exception in order to survive a motion to dismiss" but "did not deal with the burden of proof question").

In the context of a motion to dismiss, however, the courts have widely held that the plaintiff must invoke jurisdiction by pleading facts that facially allege matters outside of the discretionary function exception. SeePrescott, 973 F.2d at 702 n. 4; Blakey v. U.S.S. Iowa, 991 F.2d 148, 154 (4th Cir.1993); Autery, 992 F.2d at 1526 n. 6; Kiehn, 984 F.2d at 1105; Carlyle v. U.S., Dep't of the Army, 674 F.2d 554, 556 (6th Cir.1982). Relying onGaubert and without addressing which party bears the ultimate burden of proving the applicability of the exception, this court agreed that a plaintiff must "allege a claim sufficient to survive a motion to dismiss based on the `discretionary function' exception." ALX El Dorado, Inc. v. Sw. Sav. & Loan Ass'n/FSLIC, 36 F.3d 409, 411 n. 13 (5th Cir. 1994). On this motion to dismiss, therefore, the Parish must advance a claim that is facially outside the discretionary function exception in order to survive the motion to dismiss, regardless of which party bears the ultimate burden of proof.

556 F. 3d 307 n.3 (5th Cir. 2009).

[Image courtesy of kevin dean at www.betaart.com.]

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 2 of 2]

Yesterday I reviewed Professor Sarah Ricks and Professor Evelyn Tenenbaum's new casebook entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). In case you missed it yesterday, you can find my review of the professors' new casebook here.

Today I wanted to encourage readers to check out the following two sample chapters, which you can download for free on SSRN:

• Chapter Five - 42 U.S.C. § 1983 Action Under Color of Law. To give you a better idea of the layout of each chapter, here is a screenshot of chapter five's table of contents:

• Chapter Fourteen - Protecting Freedom of Religion in Prison: The Free Exercise Clause and RLUIPA. And here is a screenshot of what you can expect to find in this chapter:

Is the Langdellian case method finally showing signs of aging? Should law professors abandon the casebook/Socratic method of teaching law in favor of the "context-and-practice method"? I invite readers to share their thoughts by leaving a comment below!

Issues in Constitutional Litigation: A Context and Practice Casebook [Book Review - Part 1 of 2]

Each year new crops of wide-eyed 1Ls listen to law professors opine that they must learn how to "think like a lawyer.” Yet, as the New York Time’s David Segal pointed out in a recent article entitled “What They Don’t Teach Law Students: Lawyering,” the law-school curriculum has, for more than a century now, “emphasized the theoretical over the useful.” But to quote the great Bob Dylan, “The times they are a-changin.’”

According to an article in the Wall Street Journal (here), many of the nation’s top law schools “are throwing out decades of tradition by replacing textbook courses” with courses like Indiana Law’s “course of so-called emotional intelligence,” Harvard Law’s new “problem-solving class for first-year students,” and Stanford’s “full-time clinical course” in which students must complete “several 40-hour plus weeks of actual case work” to graduate.

Professor Sarah Ricks of the Rutgers School of Law was nice enough to send me a courtesy copy of her new casebook, which she coauthored with Professor Evelyn Tenenbaum of Albany Law School, entitled Current Issues in Constitutional Litigation: A Context and Practice Casebook (Carolina Academic Press 2011). As the title suggests, this casebook is designed to help students think about the law from the perspective of a practicing lawyer. Like many of the great casebooks on the subject that have come before it, Issues in Constitutional Litigation covers the landmark Supreme Court cases with intelligent commentary and thoughtful organization. Unlike many of the great casebooks on the subject that have come before it, the book also focuses on federal circuit decisions, with a particular emphasis on both established and emerging circuit splits. Each chapter also strives to capture the human element of practicing law--something that legal opinions frequently fail to convey. Students will read letters from inmates, review historical documents like the 1867 cover of Harper's Weekly depicting black men casting their "first vote," receive practice pointers from seasoned veterans, and receive exposure to a host of other "real-world" issues that help bring the cases to life.

To be clear, Issues in Constitutional Litigations does not trash the traditional casebook model. The important cases are all still there. Instead, the book improves upon the old casebook model in two important ways. First, it places each case in a broader context that helps explain the doctrinal developments that might otherwise feel counterintuitive or arbitrary to students who limit their study of the subject to the four corners of the opinions.

Second, the book emphasizes the advocate's role in shaping the development of constitutional law. This is a critical component of thinking like a lawyer; and one that the casebook/Socratic method tends to neglect. The biggest criticism I have heard from seasoned attorneys about their freshly minted colleagues--which I largely attribute to the casebook/Soctratic method of teaching--is that law students graduate with the impression that they are supposed to analyze and apply the law in a disinterested, neutral manner as they might in the classroom when called on by their professor to recite the previous night's reading assignment. Issues in Constitutional Litigation does an excellent job illustrating the relationship that attorneys have with the court and their client, as well as the active role attorneys play in shaping the law through zealous advocacy for their client's interests. In other words, the book focuses the reader's attention on the process through which constitutional law is made, not solely on the finished product of that process.

The book, Professor Ricks explains, accomplishes this by "plac[ing] students in roles as practitioners handling simulated law practice problems" and provides a more engaging learning experience through the use of "exercises, visual aids, and questions to guide student reading." The book also "includes materials that help students reflect on their professional roles.” You can purchase Current Issues in Constitutional Litigation online here. Tomorrow’s post will feature an excerpt from the book that you won’t want to miss. 

New Article: Presumed Damages for Constitutional Torts

Ruth Sarah Lee (Harvard Law School) recently posted an article on SSRN entitled Unwarranted Presumptions: Common Law, Injury, and Presumed Damages for Constitutional Torts. It discusses the circuit split about presumed damages in constitutional tort cases.  Here is the SSRN abstract:      

This article explores the question of whether presumed damages are a good way to achieve the compensation function of constitutional torts. After the Supreme Court decided Memphis Community School District v. Stachura, circuit courts have split about whether presumed damages may be allowed, or are categorically barred.

The circuit split, along with the academic ongoing discussion about whether constitutional tort plaintiffs are being adequately compensated, warrants a second look at presumed damages. 

This article first delineates the two conflicting interpretations of presumed damages — compensatory presumed damages, which approximate actual injury that has not been proven in court, and non-compensatory presumed damages, which approximate the value of the constitutional right that was violated. A way of harmonizing these concepts, and still compensating the plaintiff, is proposed: by formulating the constitutional violations themselves as injuries to the plaintiffs, as courts have done in historic right-to-vote cases.

When a defamation principles are examined alongside constitutional tort principles, it becomes clear that the reasons that make presumed damages appropriate for defamation are absent from the constitutional tort cases. Presumed damages are appropriate in defamation cases because (1) inference of injury, and (2) difficulty of proof. But while defamation cases raise the empirical problem of the cost of surveying witnesses, constitutional tort cases raise the legal problem of what values the courts should protect. Furthermore, any conception of constitutional torts that formulates violations as injuries would not require presumed damages because injuries are proven when violations are proven (i.e. would fail the difficulty-of-proof test). Any conception of constitutional torts that does not formulate violations as injuries would not imply that the plaintiff has actually been injured, given a violation (i.e. would fail the inference-of-injury test). Presumed damages are, therefore, rendered incompatible with constitutional torts.

 

I think the author does a nice job of explaining the issues that have divided the circuits and offers a plausible solution or conclusion.  Definitely worthwhile reading.

-Dru Stevenson

Are Corporations People? The Circuit Courts Weigh In

Are corporations people?

Following the Supreme Court’s 2010 decision in Citizens United, this question has sparked endless debate among daytime pundits and has provided cannon fodder for late-night comedians. Take, for example, Stephen Colbert’s recent political “attack ad” that portrays presidential hopeful Mitt Romney as “Mitt the Ripper”; a satirical reference to his former career “carving up corporations” as CEO of Bain Capital and his recent statement that “corporation are people.” (I've embedded the video below).

While the American public may be divided over this question as it relates to campaign finance, the circuit courts are similarly divided over the issue as it relates to the Alien Tort Statute (ATS), which is sometimes referred to as the Alien Tort Claims Act or 28 U.S.C. § 1350. The ATS provides that “district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."

Earlier this week on Valentine’s Day, the U.S. District Court for the District of New Jersey identified a split among the circuits over the question of whether corporations, like their human counterparts, may be subject to liability under the ATS. See Karunamunige Chamila Krishanthi v. Rajaratnam, Civil Action No. 09-CV-5395 (DMC) (MF), 2012 U.S. Dist. LEXIS 19137 (D.N.J. Feb. 14, 2012) (unpublished). “The Eleventh Circuit,” the court noted, “grants jurisdiction from complaints of torture against corporate Defendants.” Id. (citing Romero v. Drummond Co. Inc., 552 F.3d 1303, 1315 (11th Cir. 2008)).

Back in July 2011, the Seventh Circuit offered a more comprehensive look at each circuit’s stance on this divisive issue:

The issue of corporate liability under the Alien Tort Statute seems to have been left open in an enigmatic footnote in Sosa, 542 U.S. at 732 n. 20, 124 S.Ct. 2739 (but since it's a Supreme Court footnote, the parties haggle over its meaning, albeit to no avail). All but one of the cases at our level hold or assume (mainly the latter) that corporations can be liable. Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008); Herero People's Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1193, 1195 (D.C. Cir.2004); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 91-92 (2d Cir. 2000); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 163 (5th Cir. 1999); see also Abdullahi v. Pfizer, Inc., 562 F.3d 163, 174 (2d Cir. 2009); Sarei v. Rio Tinto, PLC, 550 F.3d 822, 831 (9th Cir. 2008) (en banc). (Our court hasn't addressed the issue.) The outlier is the split decision in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), which indeed held that because corporations have never been prosecuted, whether criminally or civilly, for violating customary international law, there can't be said to be a principle of customary international law that binds a corporation.

Flomo v. Firestone Nat. Rubber Co., LLC, 643 F. 3d 1013 (7th Cir. 2011) (Posner, J.) (agreeing with the majority of circuits that corporations may be subject to liability under the ATS).

The Third Circuit, as the district judge in Rajaratnam pointed out earlier this week, is noticeably absent from this list: “In the absence of Third Circuit precedent and considering the Circuit split on the issue at the crux of TRO-USA's appeal from this Court's Opinion, it is prudent to await the Supreme Court's provision of binding precedent on this point of law.” Karunamunige Chamila Krishanthi v. Rajaratnam, Civil Action No. 09-CV-5395 (DMC) (MF).

In the spirit of Valentine's Day, Rajaratnam sounds like a love note to the Supreme Court, doesn’t it? For interesting takes on the topic, check out the video below as well as the following article: John C. Coffee, Jr., "No Soul to Damn: No Body to Kick": An Unscandalized Inquiry into the Problem of Corporate Punishment, 79 Mich. L. Rev. 386 (1981) (available here).

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