Tuesday, May. 21, 2002

Lately, the media have focused closely on the government's failure to capitalize on pre-September 11 information concerning al Qaeda activities in American flight schools. Especially significant, and a potential "smoking gun," is a Phoenix memo that sets forth one FBI agent's all too prescient suspicions, yet was largely ignored at the time.

The government's failure to capitalize on this and other information has set off a debate in Washington -- one that has broken down along predictable partisan lines. Meanwhile, President Bush and his advisors have adopted a defensive posture reminiscent of the behavior of many corporations after a massive accident.

A corporation whose activities have caused massive loss usually gets sued, and the corporation gets a chance to defend itself in court (if it does not settle first). For instance, when the captain of the Exxon Valdez fell asleep on the job in the Prince Williams Sound, Exxon had to go to court to explain what had happened, and to try to argue why it should not have to pay punitive damages. Exxon, of course, lost, and was ordered to pay billions of dollars as a result.

Sovereign Immunity: A Historical Impediment Against the Government

Historically, in England it was impossible to hold the king responsible in tort unless he agreed to be sued. This doctrine, called "sovereign immunity," was adopted by the new American Republic in 1776. As a result of this doctrine, the government can't be sued unless it agrees to be sued.

In 1946, the federal government finally did agree to be sued, but only under certain limited circumstances, when Congress passed the Federal Torts Claim Act (FTCA). Congress stipulated, however, that these suits would not involve juries or punitive damages awards -- meaning they would be very different from, for example, the Exxon Valdez suit described above.

The FTCA also limits suits in other ways. For suit to be brought, the government actor who caused the tort must have been acting within the scope of her government employment, and must have been performing a "nondiscretionary" function.

These limitations are very significant. Many intentional torts (except those committed by soldiers or federal agents) are held to fall far outside the scope of government employment. And few government functions are truly nondiscretionary.

A decision that implicates a policy goal, for instance, is a "discretionary" decision, which therefore cannot form the basis for an FTCA suit. Examples might include: a decision to issue a permit; a decision whether to carry out a safety inspection; a decision whether to parole a prisoner; a decision to have mail carriers drive a certain kind of dangerous truck; and -- certainly -- a decision made at the highest level of government concerning how many resources to devote to a problem, or whether to even address the problem in the first place.

In short, no matter how negligent or reckless a policy decision might seem in retrospect, the federal government is immune from suit from private citizens, no matter who gets hurt or how much property is lost. Congress has decided, very generally, not to allow policy judgments or their consequences to be litigated -- perhaps to avoid partisan lawsuits that attempt to attack policies that could not be defeated politically.

When, then, can the government be sued, pursuant to the FTCA? Basically, the answer is this: when, through its actors, it implements a policy in a careless fashion.

Although the choice of what truck government employees will drive cannot lead to a suit, a particular employee's reckless driving could. When federal actors get into car accidents while on the job, the federal government can be sued under the theory of "respondeat superior" (under which an employer can be responsible for its employee's torts), just as Fed Ex or UPS could.

So what about the FBI's apparent decision not to pursue leads that it had obtained in Phoenix concerning suspicious al Qaeda activities in flight schools? Whether the federal government could be sued depends, again, on whether the decision was a discretionary or non-discretionary act.

I should stress that I express no judgment on the ultimate merits of such a suit --for example, on whether the FBI's treatment of the information was reasonable -- and it would be foolish to do so, while facts are still being developed. The only question I am considering is, instead, whether such a suit would be stopped even before it began, due to the FTCA rule that it cannot be based on a discretionary act.

To resolve this question, the Sixth Circuit's 1975 decision in Downs v. U.S. is helpful. There, the Sixth Circuit held that the FTCA did not bar a negligence suit against the FBI for a botched assault on a hijacker, involving storming a small hijacked plane in Nashville, that had resulted in three deaths.

Was the decision to storm the plane discretionary? The court said no; it was no more discretionary, for instance, than a mail carrier's decision to drive through a red light. Both acts may have been willful; neither had anything to do with making policy.

The court reasoned that the FBI's general policy about whether to storm planes, made in Washington, represented a discretionary decision. But the agent's specific decision of whether to storm that particular plane in Nashville that day, and when, and how, was not a matter of policy. Instead, it was a matter of competence, and a jury had decided that the agent had executed the decision carelessly.

The Downs case, thus, could be interpreted broadly to stand for the principle that, in the context of hijackings, field agents' actions may be viewed by the courts as non-discretionary, and therefore that suits based on such actions can be brought.

Does that mean, then, that agents' decision not to act on the Phoenix memo may form the basis for a suit by September 11 victims' families? The answer is still: Not necessarily.

One reason for this is that the decision not to act was not made by field agents --like the one who wrote the Phoenix memo and properly sent it on to his superiors, or the one who made the erroneous decision to storm the plane in Downs -- but rather by higher-ups. And the higher-up the decisionmaker, the more likely the decision will be deemed by a court to be a "discretionary" policy decision that, under the FTCA, cannot form the basis of a tort suit.

One might see it as rather strange that under the FTCA, the government itself bears less responsibility, under tort law, for high-level than for low-level decisions. But that is the law. Moreover, the legal oddities does not stop there: another, even stranger feature of tort law that applies when the government is a defendant also poses yet another obstacle to the success of a suit by the September 11 victims' families against the federal government.

Another reason that a September 11 victims' suit against the government might not succeed is because it appears that the government erred not by acting on the information, but rather by deciding not to act, or not to do enough -- and an omission to act is treated differently, in tort law, than an action.

By comparison, in the Downs case the FBI was sued for what its agents did (they shot people). But a lawsuit based on the Phoenix memo would be based on what some of the FBI's agents didn't do (they didn't warn anyone or, at any rate, not specifically enough, it seems).

In a lawsuit based on an omission to act, the plaintiff must prove that the defendant (here, the government) owed the plaintiff a duty to act, rather than refrain from acting. And, as strange as this might sound, many courts would probably conclude that the FAA, FBI and other agencies had no duty to warn the public -- or even the airlines -- of what they had learned about Zacarias Moussaoui and others.

Why the Korean Air Lines Decision Suggests a September 11 Suit Would Fail

The difference between acting badly, and not acting at all, can be a slippery one, but it can play a very important role in cases in which the defendant is accused of a failure to intervene or rescue. Take, for example, the 1991 decision in Wyler v. Korean Air Lines.

There, the federal government was sued based on an allegation that the FAA and the US Air Force failed to warn the pilot of KAL 007 that it had wandered into Soviet airspace. The suit was dismissed, and the dismissal upheld on appeal. The court reasoned that, regardless of whether either the FAA or US Air Force could have saved the airliner by making a phone call, neither agency had a legal duty to save the airliner.

Wyler highlights a strange but important point about governmental negligence: just because the government is everywhere doesn't mean it has a duty to everyone. The police, for example, cannot be sued for failing to prevent crimes from occurring -- even when it is clearly provable that they knew that a crime was about to occur, and could have prevented it.

Law enforcement officials can be sued, of course, if they intentionally or negligently hurt a citizen. But they cannot be sued if they fail to prevent a citizen from being hit by someone else -- unless, that is, they began to rescue the citizen or arrest the perpetrator, and then stop. In sum, any action by the police triggers potential liability, but generally, the police's doing nothing -- even if that is highly unreasonable under the circumstances -- does not.

While this may sounds very strange, it simply treats the police like other citizens in the "failure to rescue" context. Like a police officer, an average citizen has a duty to rescue only when he or she has either created the injury that requires rescue. or has led others to rely on your promise of rescue. (One might think that the police have made a standing promise to rescue, on which every citizen relies, but the law disagrees).

The plaintiffs in Wyler argued that the federal government, by having spent billions of dollars on radar stations around the globe, had essentially told the flying public that it could rely on Uncle Sam to warn them if they were at risk of their plane being shot down by the Russians. The court, however, disagreed, holding that no such promise had been made. As a result, if the FAA could have saved KAL 007 but chose not to, its wrong may have been moral, but it was not legal -- not, that is, a tort for which damages could be awarded.

What about the FBI in Phoenix? Did the federal government, through its various pronouncements over the years, lead the airlines and the public to rely on its efforts to stop specific acts of terrorism?

If you think the answer is yes, you are placing on the FBI a duty placed on almost no police department in the fifty states. And if you still think the answer is yes, even if you would apply it to police departments too, you should realize you are arguing for a sea change in the law relating to the responsibility of law enforcement - one that would likely change federal and state policing across the country. Even with this consequence, you may still say yes to placing this responsibility on the government, but it is important to realize the transformation that truly saying yes to this responsibility would effect.

Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects. Professor Sebok has written several columns on the September 11th victim compensation fund for FindLaw; they can be located in the archive of his columns on the site.

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