CA1: Killers, dropped calls, the FTCA

McCloskey v. Mueller, No. 05-2690. A guy decided the he wanted to turn himself in. So, he did the honorable thing and called the FBI. The FBI hung up on him for some reason not explained in the record, but it probably had something to do with their cellphone service. Anyway, the honorable person who wanted to turn himself in did what many in his situation might do: embark on a killing spree. Strangely, the employee of the FBI that disconnected the call, first denied, and then later admitted that the call was disconnected in the killer’s death penalty trial. A victim’s estates sues the FBI, its director, and the guy that dropped the call under Bivens, and the FTCA. Looking for an analogy between Massachusetts tort law (which might create a duty of care), and the FBI’s behavior, the District Court found none. The 1983 claims (I have no idea why this was plead) and Bivens claims because Bivens actions are against individual actors, but somehow the plaintiffs consented to dismiss the Bivens claims against the FBI’s hanger-upper.

Anyway, two things I noticed.

• The facts of this case are very tragic, and the plaintiff is definitely without blame. Judge Selya seems to be aware of this, and refrains from using big words that drip with condescension.
• Selya seems to think that the discretionary-function exception to the FTCA is jurisdictional. This is not at all clear. He cites 28 U.S.C. § 2680(a). But that doesn’t say that the courts lack jurisdiction, and the Supreme Court in Arbaugh v. Y & H Corp., 546 U.S. ___ (2006), held that "when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character. "    Looking though the statute, there seems to be an argument that this section could be jurisdictional, since 28 U.S.C. § 2680 refers to § 1346, which provides the District Courts with jurisdiction, but the court doesn’t provide any actual interpretation of the interplay between those two statutes.

Comments

[Happy Fun Lawyer]

But this isn't a typical limitation on a statutory cause of action. Exceptions to the FTCA are considered jurisdictional because they are conditions on the government's waiver of sovereign immunity.

[S. COTUS]

I don’t understand this dichotomy. As I see it, a waiver of sovereign immunity is different than a waiver of restriction upon the jurisdiction of the court. Waivers of sovereign immunity relate to the ability of an individual to seek the aid of the court in drawing from the treasury. Jurisdiction of the court relates to the ability of an individual to invoke the power of the court to inquire adjudicate an issue. In this case, since the District Court has the power to adjudicate FTCA issues, its jurisdiction was properly invoked. Substantively, however, the FTCA with its relation to state law does not provide for government liability, but by simply saying “FTCA” (which is all a plaintiff has to do, since there is no heightened pleading requirement) the jurisdiction of the court is properly invoked. Of course, at summary judgment, the plaintiff won’t be able to show that he could prevail, because the facts he puts forward wouldn’t create liability under state law.

The Supreme Court actually addressed your position in Kontrick v. Ryan, 540 U.S. 443 (2004) and wrote that "Clarity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority." In this case, the statute that I cited does place the FTCA within the District Court’s adjudicatory authority, and it is for the District Court to then figure out what Massachusetts law is (perhaps certifying it if necessary), and, in this case, to figure out that someone would lose under Massachusetts law.

So whether it is “typical” or not isn’t the issue. What is the issue is whether it circumscribes the court’s “adjudicatory authority.”

(Moreover, since the Supremes have said that the FTCA isn’t to be construed narrowly, unlike other waivers of sovereign immunity, there may be some other differences.)

[---]

I have to agree with HFL. The key idea is that the federal courts do not, as an original matter, have subject matter jurisdiction over claims against the federal government, because of sovereign immunity. See, e.g., F.D.I.C. v. Meyer 510 U.S. 471, 475 (1994) ("Sovereign immunity is jurisdictional in nature. Indeed, the terms of the United States' consent to be sued in any court define that court's jurisdiction to entertain the suit." ). That basic principle still holds today; it was not changed by Arbaugh or Kontrick (which have nothing to do with the nature of sovereign immunity).

The rest flows from there. The federal government has consented to suit in the federal courts via a variety of statutes, including the FTCA, for certain classes of claims. In other words, the government has granted the federal courts jurisdiction to hear suits against it. However, that grant of jurisdiction was circumscribed in certain ways. Those limitations on the grant of jurisdiction are, of course, jurisdictional in nature. The Court has emphasized the jurisdictional nature of the FTCA waiver of sovereign immunity only this year. See Dolan v. U.S. Postal Serv., 126 S.Ct. 1252, 1256 (U.S. 2006).

[S. COTUS]

Meyer involves a constitutional claim that someone attempted to bring under the FTCA. The FTCA, in 28 U.S.C.A. § 1346. by its own terms provides the District Courts with jurisdiction over claims in which the US would be liable if it was a private person. Since someone the plaintiff asserted that the government was liable under a constitutional theory, and the court only had jurisdiction under 1346, the Supreme court held that it lacked jurisdiction over the claim. Now, of course, has the plaintiff in Meyer alleged that the FDIC had violated some right of hers arising under state law, this would be different. But, whatever the case, Meyer involved a straight-forward interpretation of the FTCA’s jurisdictional grant.

Dolan, involves a question of how exactly to construe a textual exception to the FTCA’s jurisdictional grant found in 2680(b). Here the Supremes were interpreting the scope of a textual exception to the FTCA. The Supremes engaged some actual analysis in Dolan, by pointing out that 2680 is really an exception to 1346, which, I think is the proper way to analyze these issues.

Instead, the most recent case dealing with how to construe whether something is a jurisdictional grant, or a matter of substance (in a claim against the government) is probably Scarborough v. Principi, 541 U.S. 401 (2004). In this case, the government had argued that every element of 28 USC § 2412(d)(1) is simultaneously a matter of 1) substance -- upon what basis the court should find facts; 2) sovereign immunity (whether or not the treasury may be drawn upon); and 3) jurisdiction (whether or not the power of the court can be involved). The government seems to have argued too much, because they lost on all counts. The court held that “Once Congress waives sovereign immunity, we observed, judicial application of a time prescription to suits against the Government, in the same way the prescription is applicable to private suits, “amounts to little, if any, broadening of the congressional waiver.” Now, in this case, they appear to have randomly selected one section of the statute, declared it to be the waiver, and then, simply applied the rest of the statute, like any other statute, and declared that the courts had the power to assert jurisdiction based on an imperfect application for attorneys fees, because the application was good enough to invoke the power of the courts under one section.

In the instant case, if, Congress had written provided a specific jurisdictional exception for duties “not explicitly defined by highest court of the state,” then the analysis would be a lot cleaner. Alas, they did not. (This analysis might not apply to AEDPA, but I will leave that for later.)