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As you read in your textbook, liability of government agencies and their employees depends on a number of factors.
In your textbook, Hall concludes Chapter 11 by saying, “You are left to decide whether the many structural, organizational, political, and legal limits on agency authority that you have learned about in this book keep agencies adequately accountable to the people” (1).
For the discussion, share your decision (or your current position) on whether or not there are enough checks to adequately hold agencies accountable. Support your answer with rationale and specific examples.
Administrative Law Bureaucracy in a
Democracy
Seventh Edition
Chapter 11
Accountability Through
Liability
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Accountability Through Liability:
Introduction (1 of 2)
• Government provides a multitude of public services
without a profit incentive
• Revenues are derived from the people
• Government liability could jeopardize the ability to deliver
services
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Accountability Through Liability:
Introduction (2 of 2)
• Government liability provides:
– Control of discretion
– Prevention of abuse
– Compensation for injured citizens
• Government liability is more limited than personal liability
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Sovereign Immunity (1 of 3)
• Holds the government to be immune from liability
• Historically a concept begun in old England and adopted
after the revolution
• The concept is questioned and criticized but still in effect
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Sovereign Immunity (2 of 3)
• The government must consent to be sued
– Applies to state and federal governments
– In some states, sovereign immunity has been
abolished or limited by statute and/or judicial decision
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Sovereign Immunity (3 of 3)
• Public officials may be sued in their official capacity or an
individual capacity
– If sued in their individual capacity, it is similar to suing
them personally
– If sued in their official capacity, it is the same as suing
the government
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Federal Tort Claims Act and Its
Exceptions
• In the Federal Torts Claims Act (F T C A) of 1946, the
United States waived immunity regarding a number of
torts
– Three exceptions to liability are named:
▪ Executive functions
▪ Intentional torts
▪ Discretionary functions
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Executive Functions
• Specific administrative functions
• Claims arising in foreign nations
– Based on separation of powers theories
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Intentional Torts (1 of 2)
• Claims arising out of:
– Assault
– Battery
– False imprisonment
– False arrest
– Malicious prosecution
– Abuse of process
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Intentional Torts (2 of 2)
• Claims arising out of:
– Libel
– Slander
– Misrepresentation
– Deceit
– Interference with contract
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Discretionary Function Doctrine
(1 of 2)
• Discretionary acts of government employees, officers, and
officials
– Acts involving:
▪ Planning
▪ Policy
▪ Judgment
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Discretionary Function Doctrine
(2 of 2)
• Ministerial acts are not included in immunity
• Many acts include both discretionary and ministerial
characteristics
– Line between acts is not well defined so each
jurisdiction may vary in interpretation
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Scope of Employment
• Government is not liable for acts committed outside of an
employee, officer, or official outside of their employment
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Public Duty Doctrine
• Generally, duties are owed to the public but not to
individuals
• Founded on separation of powers theory
– Inadequate officials can be removed by voters
• Duties to individuals may apply if a special duty or
relationship exists
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Damages Limitations
• Liability does not include prior interest or punitive
damages
• There is no dollar limit on judgments against the United
States
• Many states have passed statutes limiting state liability
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Section 1983 Actions
• The Civil Rights Act of 1871 was passed to enforce the
Fourteenth Amendment
• Today the Act used to enforce any constitutionally
protected violation
– The Act was codified as 42 U.S.C. § 1983
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Plaintiffs and Defendants
• The statute provides that citizens and other persons may
maintain a lawsuit
• Certain limitations apply regarding who may sue
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Deprivations and Color of Law (1 of 2)
• Plaintiff in a § 1983 case must prove:
– Defendant acted under color of law
▪ Deprivation occurs under authority of state
– Caused
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Deprivations and Color of Law (2 of 2)
• Plaintiff in a § 1983 case must prove:
– Plaintiff to be deprived of a constitutionally protected
right, including:
▪ Fourteenth Amendment due process/equal
protection
▪ Fourth Amendment search and seizure
▪ Fourth Amendment reasonableness regarding
excessive force
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Remedies, Fees, and Costs (1 of 4)
• Available damages:
– Nominal
▪ Minimal amount where a violation occurred but no
damages
– Actual/compensatory
▪ Special
– Medical costs, loss of income, damage to
property, etc.
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Remedies, Fees, and Costs (2 of 4)
• Available damages:
– Actual/compensatory
▪ General
– Pain and suffering, emotional distress, etc.
– Punitive
▪ Punishment
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Remedies, Fees, and Costs (3 of 4)
• Other remedies:
– Declaratory judgment
▪ Court pronouncement of the rights, obligations, and
legal relationship between parties
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Remedies, Fees, and Costs (4 of 4)
• Other remedies:
– Injunction
▪ Requirement that an action either be taken or not
taken (may be temporary, preliminary, or
permanent)
• Attorney fees and costs may be awarded to winning party
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Procedure (1 of 4)
• Federal courts have jurisdiction in § 1983 cases
• § 1983 cases may also be filed in state courts with the
responsibility to adjudicate federal claims
• Pendent jurisdiction may apply allowing a federal court to
hear a state action when the underlying issue is a federal
claim
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Procedure (2 of 4)
• The doctrine of exhaustion of remedies does not apply to
§ 1983 cases
• § 1983 does not contain a specified statute of limitations
– Personal injury statutes of limitations are generally
applied limiting the filing to two or three years
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Procedure (3 of 4)
• § 1983 litigation is often resolved in pretrial motions
– Summary judgments and dismissals are common
• Both sides have a right to a jury determination of damages
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Procedure (4 of 4)
• A jury is not available for injunctive relief
• Jury are available in declaratory relief cases for issues of
law but not for equitable issues
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Immunities
• To be immune means to be free of liability
• § 1983 did not abolish immunities existing prior to its
enactment
• Absolute immunity provides immunity from suit
• Qualified immunity provides immunity from liability
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Constitutional Claims (1 of 2)
• Cases claiming constitutional violations, brought directly
under the constitution rather than statute, are called
“Bivens actions”
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Constitutional Claims (2 of 2)
• Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) held
that the Fourth Amendment guarantees to citizens the
absolute right to be free of unreasonable search and
seizure carried out under federal authority
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Common Law Torts and Official
Immunity (1 of 2)
• Common law torts include (but are not limited to):
– Intentional infliction of emotional distress
– Defamation
– Invasion of privacy
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Tucker Act
• Provides the United States Claims Court jurisdiction over
any claim for damages against the United States based
on the Constitution, statutes, or regulations of the United
States
• The “Little Tucker Act” gives the district court concurrent
jurisdiction in matters below $10,000
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Common Law Torts and Official
Immunity (2 of 2)
• Federal governmental officials enjoy “official immunity”
– Official immunity is absolute immunity from common
law torts
▪ Applies to any discretionary acts taken in an official
capacity
– Decision making
– Policy making
▪ Does not apply to ministerial acts
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Private Parties as Government
Actors (1 of 5)
• Generally privatization occurs in two forms:
– Abandoning of a service by the government
▪ Continuation of service and cost is left to the private
market
▪ Core government functions may not be completely
abandoned
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Private Parties as Government
Actors (2 of 5)
• Generally privatization occurs in two forms:
– Delegation of a program or project to a private entity
▪ Today, more than the occasional need is being
delegated
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Private Parties as Government
Actors (3 of 5)
• Involves situations where government services are
administered by private businesses or organizations
• Questions related to liability, control, and rights enjoyed
are unsettled and ongoing
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Private Parties as Government
Actors (4 of 5)
• Liability regarding § 1983
– Generally a contract working on a project is not acting
under color of the law
– Courts have found the agency and private actor to be
so connected that the private actor can be
characterized as a state actor
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Private Parties as Government
Actors (5 of 5)
• Liability regarding § 1983
– A private party found liable under § 1983 is not entitled
to immunities that protect governmental employees
under § 1983
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Other Constitutional Issues: Eminent
Domain
• Eminent Domain
– The authority to take private party for public use
– Governments must provide just compensation
– Based on the Fifth Amendment and Fourteenth
Amendment
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Other Constitutional Issues: Free
Speech
• Speech protected by the First Amendment
• Agencies confront free speech rights in many contexts
• Garcetti v. Ceballos (2006): Court held that speech that is
part of the employee’s duties isn’t protected by the First
Amendment
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