Tort Actions Against Agencies and Agency Officials

• Pages: 191-196
• Author: Richard J. Pierce, Jr.

191

Chapter 14

TORT ACTIONS AGAINST AGENCIES

AND AGENCY OFFICIALS

The APA authorizes a court to reve rse and remand an agency

action when it co ncludes that the agency action is unlawful in some

respect. The APA does not authorize a court to require an agency or

an agency employee to pay damages to an individual or a firm that

has been harmed by an unlawful action taken by the agency or

agency employee, however. From time-to-time, some legislators,

judges, and Justice s have co ncluded that making damage action s

available against agencies and agency employees that cause damage

through unlawful actions would provide desirable additional

incentives to encourage agencies and their employees to remain

within the boundaries of law. This chapter discusses each of the three

major means through which Congress and the courts have attempted

to use tort remedies to encourage agencies and their employees to

refrain from engaging in unlawful conduct that harms individuals

and firms—the Fe deral Tort Claims Act (FTCA), the doctrine

announced by the Supreme Court in Bivens v. Six Unknown Named

Agents of the Federal Bureau of Narcotics,

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and 42 U.S.C. § 1983.

A. Federal Tort Claims Act

The APA does not w aive sovereig n immunity in the co ntext of

damage claims against the government. Congress has enacted about

forty statutes in wh ich it has waived sovereign immunity in the

context of damage claims. Most of those statutes apply only in narrow

circumstances, but FTC A authorizes claims for money damages

against the Un ited States bro adly whenever negligent or other

wrongful acts or omissions that wo uld constitute a tort under state

law if the conduct at i ssue was engaged in by a private party c auses

damage to an individual or firm. The government is vicariously liable

for the tortuous conduct of an employee if the employee was acting

within the scope of his or her duties. A party who claims to have been

damaged by conduct that falls in the scope of FTCA must submit a

claim for compensation to the agency that was allegedly responsible

for the damage and allow that agency six months in which to pay or

deny the claim before the party can file an FTCA action.

FTCA has numerous exemptions, including claims by military

personnel and claims that fall in several categories of intentional

torts. From an administrative law perspective, the mo st important

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403 U.S. 388 (1971).