In recent years, mass-tort plaintiffs have sued domestic and foreign governmental entities for damages caused by governmental employees, terrorists, and nature, as well as damages caused by private actors and entities acting under the direction of governmental officials. To succeed, plaintiffs must carefully craft their theories to avoid these defendants’ multiple jurisdictional and immunity defenses.
The Foreign-Sovereign-Immunity Defense
Foreign governmental entities enjoy a limited sovereign-immunity defense to tort actions. The Foreign Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C. §§ 1602–11, authorized federal courts to proceed with lawsuits against foreign states or foreign governmental entities to the extent that a foreign state has waived sovereign immunity (section 1605(a)(1)), under an agreement by the foreign state or governmental entity to submit a dispute to arbitration (section 1605(a)(6)), when the subject matter of the lawsuit arises from commercial rather than governmental-type activities (section 1605(a)(2)), and when a tort has been committed in the United States (sections 1605(a)(5)(A)–(B)). Federal district courts have original jurisdiction without regard to the amount in controversy when a foreign state or governmental entity is unprotected by sovereign immunity pursuant to FSIA sections 1605–1607 or international agreement. 28 U.S.C. § 1330.
A 1996 amendment to the FSIA, 28 U.S.C. § 1605A, abrogated foreign sovereign immunity in lawsuits brought by citizens of the United States victimized by terrorism outside the United States when the defendant foreign state or governmental entity has sponsored terroristic acts. A 2008 amendment further abrogated the sovereign-immunity defense for suits filed by foreign nationals who were killed or injured by terrorism outside the United States while acting within the scope of their employment by the U.S. government. See Pub. L. No. 110-181, 122 Stat. 3, 338 (2008).
Relying on the limitations to the sovereign-immunity defense in the FSIA, the court awarded the plaintiff in Estate of Doe v. Islamic Republic of Iran, 2013 WL 1908987 (D.D.C. May 9, 2013), over $8.4 billion in compensatory and punitive damages for the deaths and injuries resulting from the April 18, 1983, terrorist bombing of the U.S. Embassy in Beirut, Lebanon, and the September 20, 1984, bombing of that embassy’s annex, because Iran and its Ministry of Information had directed and facilitated the attacks. The court had earlier determined that it had jurisdiction over Iran and other foreign defendants. See Estate of Doe v. Islamic Republic of Iran, 808 F. Supp. 2d 1, 23–24 (D.D.C. 2011).
Federal Claims Based on Acts of Terrorism
The Anti-Terrorism Act of 1992 (ATA) created a federal cause of action for U.S. nationals who suffer injuries from “an act of international terrorism.” 18 U.S.C. § 2333(a). The ATA, however, excepts injuries caused by acts of war. 18 U.S.C. § 2336(a).
An act of war is defined as “any act occurring in the course of—(A) declared war; (B) armed conflict, whether or not war has been declared, between two or more nations; or (C) armed conflict between military forces of any origin.” 18 U.S.C. § 2331(4). In contrast, the ATA’s definition of international terrorism focuses on “violent acts or acts dangerous to human life that are a violation of [U.S. criminal law]” that “appear to be intended—(i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.” 18 U.S.C. § 2331(1), (5).
Federal courts generally will award damages for injuries caused by al Qaeda, Hamas, the Palestinian Islamic Jihad, and the Palestinian Authority on the ground that the acts of these international terrorist groups are not the acts of military forces or nations, but rather are the acts of groups that systematically use violence and destructive acts in attempting to unlawfully force governments to accede to their demands. See, e.g., Weiss v. Arab Bank, PLC,2007 WL 4565060, at *4–5 (E.D.N.Y. Dec. 21, 2007); Morris v. Khadr, 415 F. Supp. 2d 1323, 1334 (D. Utah 2006); Estate of Klieman v. Palestinian Auth., 424 F. Supp. 2d 153, 166 (D.D.C. 2006).
Sometimes, however, a court will hold that the acts of international terrorists constitute acts of war. For example, the court in Cedar & Washington Associates, LLC v. Port Authority of New York and New Jersey, 2013 WL 1137320 (S.D.N.Y. Mar. 20, 2013), found that an act of terror that provokes a nation to “go to war” is an act of war rather than an “act of terrorism.” The court made the “act of war” determination even though Congress never declared war.
The claim in Cedar & Washington was brought under the Air Transportation Safety and System Stabilization Act of 2001 (ATSSSA), 49 U.S.C. § 40101 (2006). ATSSSA established in section 408(b)(1) an exclusive federal claim for all injuries arising out of the terrorist-related crashes of September 11 at the World Trade Center, and placed under section 408(b)(3) exclusive jurisdiction for such claims in the federal district court for the Southern District of New York. Plaintiff Cedar & Washington pled that the building that it leased across from the World Trade Center site had been contaminated with toxic World Trade Center dust created as a result of those crashes. Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9607(a), owner/operators of the facilities (the planes and buildings) from which the World Trade Center dust was generated were, according to the plaintiff, strictly liable to pay for the environmental cleanup.
CERCLA, however, has an “act of war” statutory defense, 42 U.S.C. § 9607(b), for environmental contamination solely caused by an act of war. Although the court implicitly acknowledged that the plaintiff had stated an ATSSSA claim, and therefore had suffered injuries caused by the terrorist-related aircraft crashes of September 11, the court nevertheless dismissed the plaintiff’s action on the supposition that the plaintiff’s injuries were solely caused, not by acts of terror, but by acts of war because of the manner in which the United States later responded to these acts. The court warned, however, that the ATSSSA non-CERCLA property-damage claims of other building owners and lessees in and near the World Trade Center caused by the same terrorist-related aircraft crashes should not be considered to be solely caused by acts of war.
The Eleventh Amendment Defense
The plaintiffs suing state governmental entities in federal court are further limited by the Eleventh Amendment to the U.S. Constitution. States, state agencies and departments, and state agents and instrumentalities are all protected, absent waiver of sovereign immunity, against suit in federal courts by the Eleventh Amendment whenever an action might ultimately result in the recovery of money from the state treasury. Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 218, 326 (5th Cir. 2002). Moreover, the state’s waiver of its sovereign immunity against liability for a tort does not by itself waive the right of the state to be sued solely in its own courts. The state must also have specifically and clearly declared that it is subject to federal court jurisdiction, or have voluntarily invoked the jurisdiction of the federal court for the particular subject matter of the plaintiff’s lawsuit. Lawsuits against states in federal courts, in the absence of the foregoing, are proscribed by the Eleventh Amendment with the exception of lawsuits authorized by Congress to enforce rights established by the Fourteenth Amendment. Pennhurst, 465 U.S. at 100.
The Federal Tort Claims Act
The Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)), waives the sovereign immunity of the United States and authorizes individuals to sue the United States and its agencies in federal court for some acts and omissions by persons acting on behalf of the United States. Although the FTCA provides that the United States is liable for the tortious conduct of its agents in the same manner and to the same extent as a private individual under like circumstances would be liable under the law of the state where the tort occurs, this is not literally true. Pursuant to 28 U.S.C. §§ 1346(b) and 2674, the FTCA immunizes the federal government against claims based on a federal actor’s performance, or failure to perform, a “discretionary function or duty.”
Whether a defendant has been performing a discretionary function is determined by a two-part analysis. First, a court must inquire whether the act at issue involved an element of judgment or choice. A federal actor makes a judgment or choice, as a matter of law, when a statute, regulation, or policy empowers a federal employee or agent to determine when and how to take action. If a federal employee has no rightful option but to execute a specific federal directive, then his or her actions are not discretionary and immunity will not apply. Berkovitz v. United States, 486 U.S. 531, 536 (1988). Second, a court must inquire whether the decision at issue was susceptible to policy analysis (not whether the decision maker actually engaged in a policy analysis to arrive at his or her decision). In other words, the government actor must be entitled to make a choice among competing policies (not merely a choice as to how to execute a mandatory policy). United States v. Gaubert, 499 U.S. 315, 325 (1991). When these two elements are met, the FTCA’s discretionary-function exception applies and the federal government remains immune from liability.
Applying this analysis, the Fifth Circuit in In re FEMA Trailer Formaldehyde Products Liability Litigation, 2013 WL 1437711 (5th Cir. Apr. 9, 2013), recently dismissed negligence claims against the federal government based on FEMA’s selection of portable trailers for use as emergency housing in the aftermath of the disasters generated by Hurricanes Katrina and Rita. The plaintiff alleged that the portable trailers emitted dangerous levels of formaldehyde. Because the federal government was under no contractual or legal obligation to provide emergency housing to disaster victims, and because the decision as to what type of housing to provide was susceptible to a policy analysis given limited resources and the state of emergency, the plaintiffs’ negligence claims were deemed barred by the discretionary-function exception to the federal government’s waiver of immunity under the FTCA.
Other federal laws contain analogous immunity provisions. For example, the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 93-288, as amended, 42 U.S.C. § 5121 et seq., contains an immunity provision protecting government officials and their agents from liability under certain circumstances when engaged in disaster-related emergency activities. Section 305 of the Stafford Act, 42 U.S.C. § 5148, provides that the “Federal Government shall not be liable for any claim based upon the exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a Federal agency or employee of the Federal Government in carrying out the provisions of this chapter.” These statutory immunity provisions protect the “right of federal agencies to make discretionary decisions . . . without fear of judicial second-guessing.” As such, when applicable, these provisions provide immunity from suit, not merely immunity from liability. In re World Trade Ctr. Disaster Litig., 521 F.3d 169, 181 (2d Cir. 2008).
Federal Derivative Common-Law Immunity
When a federal governmental official “controls” the actions of a private actor, such as a contractor hired by the government, the private actor may be entitled to derivative federal-governmental immunity. “If a federal agency orders a private contractor or City agency to implement decisions made by the federal agency, in its discretion, . . . ‘the interests of the United States will be directly affected’ if the contractor or City agency does not follow those orders for fear of liability.” Boyle v. United Techs. Corp., 487 U.S. 500, 507 (1988). However, “if the government merely accepted, without substantive review or enforcement authority, decisions made by an entity, that entity would not be entitled to derivative discretionary functional immunity.” Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir. 1989). Moreover,
derivative immunity will not preclude recovery for injuries occasioned by violation of state statutes [or common law] if the entity could have abided by those statutes while implementing the agency’s specifications. Derivative immunity flows only when there is a “significant conflict” between the state law and a federal policy interest, . . . and where the “policy of the ‘discretionary function’ would be frustrated.”
Boyle, 487 U.S. at 509, 512.
Suits Against State Actors and Their Agents in State Court
Many of the foregoing federal jurisdictional and immunity limitations on liability do not apply to state-law claims brought in state court against state actors and their agents. State statutory and common law, however, impose their own limitations on liability.
The public-interest privilege, while not overtly a limitation on liability, often will have the same effect when necessary evidence is protected from disclosure. This privilege shields confidential communications among state officers and between the public and state officers that occur during the state officer’s performance of his or her governmental duties. Communications are protected against disclosure where the public interest might be harmed if the shield of confidentiality were breached. For example, plaintiffs injured during the 1993 terrorist bombing at the World Trade Center sought documents in the possession of defendant Port Authority related to security and antiterrorism measures in In re World Trade Center Bombing Litigation, 93 N.Y.2d 1, 709 N.E.2d 452, 686 N.Y.S.2d 743 (1999). The court held that disclosure by the Port Authority was limited by the public-interest privilege when disclosure would be more harmful to the interests of the government than nondisclosure would be to the plaintiff: “[A] court must calibrate the need of a litigant for information with the government’s duty to try to prevent similar occurrences and to maintain the public peace and welfare.”
Common-Law Governmental Immunity
A second state-law limitation on the liability of state actors is the common-law doctrine of governmental immunity. As is the case under the FTCA and other federal legislation, even when a state has waived its sovereign immunity against a tort claim, a plaintiff may not be successful in his or her quest to recover damages from that state when the government’s tortious conduct occurred during the performance of a governmental function. In re World Trade Ctr. Bombing Litig., 17 N.Y.3d 428, 442, 957 N.E.2d 733, 740, 933 N.Y.S.2d 164, 173 (2001).
To determine whether the government or governmental agency is acting in a governmental capacity, a court will examine “the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred.” Miller v. New York, 62 N.Y.2d 506, 513, 467 N.E.2d 493, 478 N.Y.S.2d 829 (1984) (emphasis added). When the specific act or omission at issue relates to both governmental and nongovernmental activities (as is the case when, for example, a governmental agency owns, operates, and polices an office building occupied both by governmental agencies and commercial businesses), the governmental defendant will still be protected by governmental immunity. See In re WTC, 17 N.Y.3d at 447, 957 N.E.2d at 745, 933 N.Y.S.2d at 176.
Thus, in the 1993 World Trade Center terrorist-bombing case, the court determined that “the ostensible acts or omissions for which plaintiffs seek to hold the Port Authority liable stem directly from its failure to allocate police resources.” Id. at 448, 957 N.E.2d at 746, 933 N.Y.S.2d at 177. “Police protection, particularly, is a quintessential example of a governmental function as it involves ‘the provision of a governmental service to protect the public generally from external hazards and particularly to control the activities of criminal wrongdoers.” Id. “[U]nlike the safety precautions required of every reasonable landowner, the Port Authority’s security operations featured policy-based decision-making involving due consideration of pertinent factors such as risk of harm, and the costs and benefits of pursuing a particular allocation of resources.” Id.
The court concluded that “[g]iven the finite nature of police resources, the mechanisms by which security and police protection is afforded cannot be dictated by the edict of a court or the retrospective conclusions of a jury.” Id. at 452, 957 N.E.2d at 749, 933 N.Y.S.2d at 180. “[P]olicy based decision-making . . . entitles a governmental agency to immunity.” Id. at 453, 957 N.E.2d at 749, 933 N.Y.S.2d at 181.
Statutory Immunity During Emergencies
The New York State Emergency Act (SDEA), N.Y. Unconsol. Law §§ 9101–9200, confers immunity on both governmental and nongovernmental actors for some emergency civil-defense-related activities. Emergency civil defense under section 9103(5) is defined as all those activities and measures designed or undertaken (1) to minimize effects on the civilian population caused by an attack, (2) to deal with immediate emergency conditions created by the attack, and (3) to effect emergency repairs to, or the emergency restoration of, vital utilities damaged or destroyed by the attack. Included among the types of activities immunized are fire-fighting; rescue; emergency medical, health, and sanitation services; essential debris removal; and immediate repair or restoration of vital facilities.
In Daly v. Port Authority of New York and New Jersey, 7 Misc. 3d 299, 306, 793 N.Y.S.2d 712, 719 (N.Y. Sup. Ct. 2005), the court held that
[d]uring the search for survivors, debris clearance at the [World Trade Center] site was done in the rush of emergency: the imperative to locate and rescue anyone alive beneath the rubble. . . . [Accordingly,] with regard to injuries incurred up to and including September 29, 2001, when the search for survivors ended, the demolition and clean-up work at Ground Zero was rescue-related and constituted “essential debris clearance” as a matter of law. All defendants are therefore immune from liability for such injuries, pursuant to State Defense Emergency Act § 113 (1).
It is important to note the phrase “immune from liability.” State statutory immunity, unless otherwise provided in the statute, grants defendants immunity from liability, not immunity from being sued. In re World Trade Ctr. Disaster Litig., 521 F.3d 169 (2d Cir. 2008).
Statutory Immunity for “Civil Defense”
Governmental entities may also be entitled to immunity under civil-defense statutes for acts and omissions occurring during preparations for civil emergencies. The New York Defense Emergency Act (DEA) section 9193(1) confers immunity for actions taken by “the state, any political subdivision, municipal or volunteer agency . . . in good faith, carrying out, complying with or attempting to comply with any . . . order duly promulgated or issued” pursuant to ‘civil defense.’” The DEA defines “civil defense” as all activities and measures designed or undertaken to minimize the effects on the civilian population caused by an attack and includes measures to be taken in preparation for anticipated attacks, including the preparation of shelters and control centers.
The court in In re September 11 Property Damage and Business Loss Litigation, 468 F. Supp. 2d 508 (S.D.N.Y. 2006), determined that New York City was immune from damages under the DEA when diesel fuel tanks supporting emergency electricity generators at its Office of Emergency Management in one of the World Trade Center office buildings allegedly contributed to the fire that destroyed the building. The court found that the City created the emergency-management office and installed the fuel tanks in anticipation of an attack as defined by the DEA. According to the court,
[a]though the design and construction of the backup generator system did not occur in the rush of an actual occurring catastrophe, the very point of having a carefully designed OEM and command center was to ensure that these emergency facilities would be in place and operating before a disaster occurred. And when that is done, the municipality is immune from liability for negligence in relation to the maintenance and operation of such facilities.
Id. at 517.
The temptation to sue deep-pocketed governmental entities for damages caused by terrorists and natural disasters is understandable. However, unless the governmental entities can be shown to have contributed to the injury while performing a nondiscretionary or nongovernmental function, the likelihood of success will be minimal.
Keywords: mass torts litigation, terrorist attack, natural disaster, World Trade Center, Eleventh Amendment, jurisdiction, immunity
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