February 28, 2017 Practice Points

When the Government is a Party in Litigation: Anticipating Roadblocks

By Florence M. Johnson

Consider the following scenario:

A new client wants to sue the Transportation Security Authority (TSA) for what she believes was an improper pat-down that occurred at an airport. Your client has multifaceted disabilities that preclude her from speaking clearly or understanding verbal instructions. She is also visually impaired. With these combined factors in play, she grew disoriented during the TSA screening process. Confused and afraid, she became combative to TSA agents. In turn, these agents aggressively restrained her and proceeded with a full-body pat-down. She is humiliated, and believes that not only was her privacy violated, but federal disability laws were broken.

To properly litigate this case, you will have to sue the federal government, specifically the TSA. What should you consider when approaching a government entity as a party to litigation? 

Government as Defendant
As counsel for a plaintiff, you must first consider whether your claim can be brought successfully, and if so, what remedies can be recovered. Remember sovereign immunity: the king can do no wrong? While many states, and some federal courts, have waived their right to sovereign immunity as a defense, it is still a legitimate tactic in other cases. It behooves you to determine whether the government entity at hand is able to play that card.

The federal government has occasionally exempted itself from suit entirely, as is the case with the Americans with Disabilities Act. This Act was the subject matter in Agee v. United States, 72 Fed. Cl. 284, 289 (2006) (“Congress has not waived the Federal Government’s sovereign immunity with regard to ADA claims.”); Gray v. United States, 69 Fed. Cl. 95, 102 (2005) (“[T]he United States has not waived its sovereign immunity to be sued under the ADA . . . [and the Court of Federal Claims] has no alternative but to dismiss plaintiff's ADA claim.”); see also Agee, 72 Fed. Cl. at 289 (“[U]nder Title III [of the ADA], the Federal Government is not a private entity operating a public accommodation or service.”) (citing 42 U.S.C.§ 12181); Cellular Phone Taskforce v. FCC, 217 F.3d 72,73 (2d Cir. 2000) (“Title II of the ADA is not applicable to the federal government.”).

Ensuring that you have an actionable claim against a government entity is key to surviving the inevitable motion to dismiss coming your way when you file an action against a municipal actor.

Government as Plaintiff
As counsel for a defendant against a government entity, carefully weigh the manner in which you can attack the litigation filed against your client. Your first areas of inquiry should concern whether the action was timely filed, the party was correctly named, and the action served in the proper manner. If there are any jurisdictional concerns surrounding the action itself, they should be approached at this juncture. Consider filing a motion to dismiss under Federal Rule Civil Procedure 12(b)1 or 12(b)6, or challenging the complaint on its face on its factual allegations. See Fed. R. Civ. P. 12(b)(1); United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994).

Punitive Damages 
Your client is adamant that the actions of the TSA were wholly out of bounds and that she suffered tremendous emotional distress. She is pushing for big damages, but are you allowed to seek punitive damages in a case like this? Perhaps, perhaps not. State courts’ punitive damages are not allowed against federal or municipal entities. Additionally, some courts have interpreted federal rules as prohibiting seeking punitive damages against a municipality. See, Barnes v. Gorman, 536 U.S. 181, 189 (2002) (“Additionally, in a private cause of action under either the ADA or the Rehabilitation Act, punitive damages may not be awarded”).

Ultimately, litigators need to keep these issues in mind when considering whether to include a government actor in litigation. Employing these best practices can hopefully spare you some headaches down the road.

Florence M. Johnson is the principal attorney at Johnson and Johnson, PLLC, in Memphis, Tennessee, and the chair of the Practice Points Subcommittee for the Section of Litigation's Minority Trial Lawyer Committee.


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