national immigration project/ immigration damages litigation

National Immigration Project/ National Immigration Project/ Immigration Damages LitigationImmigration Damages Litigation

Accountability Litigation 101Accountability Litigation 101

Law Office of Javier N. Maldonado, PCLaw Office of Javier N. Maldonado, PC110 Broadway St., Ste 510110 Broadway St., Ste 510San Antonio, Texas 78205San Antonio, Texas 78205

Tel. (210) 277-1603 Fax (210) 587-4001Tel. (210) 277-1603 Fax (210) [email protected]

Ghita SchwarzGhita SchwarzCenter for Constitutional RightsCenter for Constitutional Rights

666 Broadway, 7666 Broadway, 7thth Floor FloorTel. (212) 614-6445 Fax (212) 614-6422Tel. (212) 614-6445 Fax (212) 614-6422

[email protected]

Why Damages Suits?Why Damages Suits?

Individual & Legal BenefitsIndividual & Legal BenefitsFinancial relief for PlaintiffsFinancial relief for PlaintiffsPossible leverage to negotiate collateral Possible leverage to negotiate collateral immigration benefits or relief, such as immigration benefits or relief, such as prosecutorial discretionprosecutorial discretionIn cases seeking injunctive relief, ability to In cases seeking injunctive relief, ability to keep case alive if standing for injunctive keep case alive if standing for injunctive relief is challengedrelief is challenged

Why Damages Suits?Why Damages Suits?

Primary MechanismsPrimary Mechanisms

Federal Tort Claims Act, 28 U.S.C. §§ Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-26801346(b), 2671-2680

BivensBivens Suits against individual officers Suits against individual officers 42 U.S.C. § 1983 against local and state 42 U.S.C. § 1983 against local and state

personspersons Other available statues (ATCA, TVPA, Other available statues (ATCA, TVPA,

FSIA, state law)FSIA, state law)

Federal Tort Claims Act Federal Tort Claims Act OverviewOverview

Absent a waiver of sovereign immunity, Absent a waiver of sovereign immunity, the United States is immune from suit. the United States is immune from suit. The FTCA, 28 U.S.C. §§ 1346(b), 2671-The FTCA, 28 U.S.C. §§ 1346(b), 2671-2680, waives the United States2680, waives the United States’’sovereign sovereign immunity to allow suits for money immunity to allow suits for money damages arising out of the negligent acts damages arising out of the negligent acts of federal employees.of federal employees.

The United States is the only defendant The United States is the only defendant subject to suit and liability under FTCA.subject to suit and liability under FTCA.


The US is liable “to the same extent as a The US is liable “to the same extent as a private individual under like private individual under like circumstances, but shall not be liable for circumstances, but shall not be liable for interest prior to judgment or for punitive interest prior to judgment or for punitive damages.” 28 U.S.C. §1346(b)(1).damages.” 28 U.S.C. §1346(b)(1).

Elements of tort & amount governed by Elements of tort & amount governed by law of place where tort occurred. 28 law of place where tort occurred. 28 U.S.C. § 2674. U.S.C. § 2674.


Substantive Preconditions to SuitSubstantive Preconditions to Suit– Except for intentional torts committed by law Except for intentional torts committed by law

enforcement officers, US is only liable for enforcement officers, US is only liable for negligent acts of its employeesnegligent acts of its employees

– US in not liable for negligent acts of US in not liable for negligent acts of contractors. contractors. Logue v. USLogue v. US, 412 U.S. 521 , 412 U.S. 521 (1973).(1973).

– Negligent acts must be within the scope of the Negligent acts must be within the scope of the official’s duties or employment. 28 U.S.C. § official’s duties or employment. 28 U.S.C. § 1346(b)(1).1346(b)(1).


ExceptionsExceptions to Waiver of Sovereign Immunity to Waiver of Sovereign Immunity– Discretionary Function (no suit if based on Discretionary Function (no suit if based on

exercise of exercise of ““due caredue care”” in the execution of a in the execution of a statute or regulation or upon the exercise or statute or regulation or upon the exercise or failure to exercise a discretionary function or failure to exercise a discretionary function or duty)duty)

– Intentional Torts except if committed by law Intentional Torts except if committed by law enforcement agents and only for specified enforcement agents and only for specified torts.torts.

– Extraterritorial actsExtraterritorial acts

Federal Tort Claims Act Federal Tort Claims Act Practice & ProcedurePractice & Procedure

Jurisdictional Preconditions to SuitJurisdictional Preconditions to Suit– Must present administrative claim to the Must present administrative claim to the

offending agency within 2 years of the accrual offending agency within 2 years of the accrual of the actionof the action

– Claim may be filed on Form SF-95 or any Claim may be filed on Form SF-95 or any other documentother document

– Amount demanded in litigation may not Amount demanded in litigation may not exceed amount demanded on Form SF-95 exceed amount demanded on Form SF-95

Federal Tort Claims Act Federal Tort Claims Act Practice & ProcedurePractice & Procedure

Suit can be filed after denial of administrative Suit can be filed after denial of administrative claim or 6 months after claim has been pending: claim or 6 months after claim has been pending: –No heightened pleading requirementNo heightened pleading requirement–No jury trialNo jury trial–Venue lies where plaintiff resides or where Venue lies where plaintiff resides or where tortious act occurredtortious act occurred–Damages are measured by law of the place Damages are measured by law of the place where tort occurred, and no punitive damageswhere tort occurred, and no punitive damages–US has 60 days to answerUS has 60 days to answer

BivensBivens Suits SuitsOverviewOverview

BivensBivens actions are money damages actions are money damages suits against federal agents, in their suits against federal agents, in their individual capacity, for violations of individual capacity, for violations of constitutional rights. constitutional rights. Bivens v. Six Bivens v. Six Unknown Named Agents of the Unknown Named Agents of the Federal Bureau of NarcoticsFederal Bureau of Narcotics, 403 , 403 U.S. 388 (1971).U.S. 388 (1971).


Claims recognized only for violations ofClaims recognized only for violations of44thth Amendment: Amendment: Bivens Bivens (1971)(1971)55thth Amendment Equal Protection Clause: Amendment Equal Protection Clause: Davis v. Davis v. PassmanPassman, 442 U.S. 228 (1979), 442 U.S. 228 (1979)88thth Amendment: Amendment: Carlson v. GreenCarlson v. Green, 446 U.S. 14 , 446 U.S. 14 (1980) (1980)

Supreme Court reluctant to recognize “new” Supreme Court reluctant to recognize “new” constitutional causes of actionconstitutional causes of action. Corr. Services Corp. . Corr. Services Corp. v. Maleskov. Malesko, 534 U.S. 61 (2001), 534 U.S. 61 (2001)


Basic elements of a Basic elements of a BivensBivens lawsuit: lawsuit:

Plaintiff has a constitutionally protected right.Plaintiff has a constitutionally protected right.A federal official violated such right.A federal official violated such right.Plaintiff lacks a statutory cause of action, or Plaintiff lacks a statutory cause of action, or

an available statutory cause of action does not an available statutory cause of action does not provide a meaningful remedy. provide a meaningful remedy.

An appropriate remedy, namely damages, can An appropriate remedy, namely damages, can be imposed. be imposed.


Jurisdiction in federal court exists under 28 Jurisdiction in federal court exists under 28 U.S.C. § 1331.U.S.C. § 1331.

Suit must be brought within the Suit must be brought within the statestate limitations period for personal injury actions limitations period for personal injury actions where claim arose.where claim arose.

Jury trial is available.Jury trial is available. Compensatory and punitive damages are Compensatory and punitive damages are

available.available. Attorneys’ fees are not recoverable under Attorneys’ fees are not recoverable under

Equal Access to Justice Act or 42 U.S.C.Equal Access to Justice Act or 42 U.S.C.§ § 1988.1988.

BivensBivens Suits SuitsDefendantsDefendants

Defendants are federal officials sued in individual Defendants are federal officials sued in individual capacitycapacity

☓ Federal agencies are not subject to Federal agencies are not subject to BivensBivens actions. actions. FDIC FDIC v. Meyerv. Meyer, 510 U.S. 471 (1994), 510 U.S. 471 (1994)..

☓ Private correctional facilities under contract with a Private correctional facilities under contract with a federal agency are not subject to federal agency are not subject to BivensBivens actions. actions. Corr. Corr. Servs. Corp. v. MaleskoServs. Corp. v. Malesko, 534 U.S. 61 (2001). , 534 U.S. 61 (2001).

☓ 42 U.S.C. §233(a) precludes 42 U.S.C. §233(a) precludes BivensBivens actions against actions against individual U.S. Public Health Service officers or individual U.S. Public Health Service officers or employees for constitutional violations committed while employees for constitutional violations committed while acting within the scope of their office or employment. acting within the scope of their office or employment. Hui v. CastanedaHui v. Castaneda, 130 S.Ct. 1845 (2010)., 130 S.Ct. 1845 (2010).

If acting in official capacity, the following If acting in official capacity, the following officials have absolute immunity:officials have absolute immunity:☓Judges: Judges: Pierson v. RayPierson v. Ray, 386 U.S. 547 (1967), 386 U.S. 547 (1967)☓Legislators: Legislators: Tenney v. BrandhoveTenney v. Brandhove, 341 U.S. 367 (1951), 341 U.S. 367 (1951)☓Prosecutors: Imbler v. Pachtman, 424 U.S. 409 (1976)Prosecutors: Imbler v. Pachtman, 424 U.S. 409 (1976)

These are 42 U.S. C. §1983 cases, but These are 42 U.S. C. §1983 cases, but BivensBivens immunities track §1983immunities track §1983. Butz v. Economou. Butz v. Economou, 438 , 438 U.S. 478 (1978). U.S. 478 (1978).

BivensBivens Suits SuitsDefendantsDefendants

BivensBivens Suits SuitsQualified ImmunityQualified Immunity

Counsel should be prepared for a motion Counsel should be prepared for a motion for qualified immunity (QI) in the very for qualified immunity (QI) in the very early stages of the lawsuit.early stages of the lawsuit.

The filing of a motion for QI will limit the The filing of a motion for QI will limit the plaintiffplaintiff’’s ability to conduct discovery.s ability to conduct discovery.

QI is addressed in a two part test: (1) do QI is addressed in a two part test: (1) do the facts alleged show the violation of the facts alleged show the violation of constitutional right? (2) was the constitutional right? (2) was the constitutional right clearly established? constitutional right clearly established? Saucier v. KatzSaucier v. Katz, 533 U.S. 194 (2001). , 533 U.S. 194 (2001).

42 U.S.C. § 198342 U.S.C. § 1983OverviewOverview

““Every Every personperson who, who, under color of any statuteunder color of any statute, , ordinance, regulation, custom, or usage, ordinance, regulation, custom, or usage, of any of any StateState or Territory or the District of Columbia, or Territory or the District of Columbia, subjects, or causes to be subjectedsubjects, or causes to be subjected, any citizen of , any citizen of the United States the United States or other person within the or other person within the jurisdictionjurisdiction thereof to the thereof to the deprivation of any deprivation of any rightsrights, privileges, or immunities , privileges, or immunities secured by the secured by the Constitution and lawsConstitution and laws, shall be , shall be liableliable to the party to the party injured injured in an action at law, suit in equityin an action at law, suit in equity, or , or other proper proceeding for redress…other proper proceeding for redress…””

42 U.S.C. § 198342 U.S.C. § 1983OverviewOverview

Does not create substantive rightsDoes not create substantive rights Merely provides for a remedyMerely provides for a remedy State and federal courts have concurrent State and federal courts have concurrent

jurisdictionjurisdiction No administrative exhaustion requirementNo administrative exhaustion requirement Statute of limitations is determined by the Statute of limitations is determined by the

personal injury statute in the forum state. personal injury statute in the forum state. Wilson Wilson v. Garciav. Garcia, 471 U.S. 261 (1985). , 471 U.S. 261 (1985).

42 U.S.C. § 198342 U.S.C. § 1983 DefendantsDefendants

Section 1983 suits are usually two types:Section 1983 suits are usually two types:

1)1) Local Governments/Official CapacityLocal Governments/Official Capacity The suit is against the local governmental The suit is against the local governmental

entityentity No qualified immunityNo qualified immunity Must prove custom or policyMust prove custom or policy No No respondeat superiorrespondeat superior liability liability No punitive damages, No punitive damages, City of Newport v. City of Newport v.

Fact ConcertsFact Concerts, Inc., , Inc., 453 U. S. 247 (1981) 453 U. S. 247 (1981)

42 U.S.C. § 198342 U.S.C. § 1983DefendantsDefendants

2)2) Individual capacityIndividual capacitySuit is against the officer and s/he is Suit is against the officer and s/he is

personally liable for damagespersonally liable for damagesPunitive damages are availablePunitive damages are availableCan claim qualified immunity as in Can claim qualified immunity as in

BivensBivens suits suits

42 U.S.C. § 198342 U.S.C. § 1983DefendantsDefendants

Only Only personspersons are liable. are liable. The following are The following are notnot liable: liable: ☓ The United States & U.S. TerritoriesThe United States & U.S. Territories☓ Federal agenciesFederal agencies☓ Federal officials (except where they have conspired with Federal officials (except where they have conspired with

state or local officials)state or local officials)☓ StatesStates☓ State officials (except for official capacity suits in which State officials (except for official capacity suits in which

only prospective injunctive relief for an ongoing federal only prospective injunctive relief for an ongoing federal violation is sought or in individual capacity suits). violation is sought or in individual capacity suits). Frew Frew v. Hawkinsv. Hawkins, 540 U.S. 431 (2004). , 540 U.S. 431 (2004).

42 U.S.C. § 198342 U.S.C. § 1983Municipal DefendantsMunicipal Defendants

– Theories of Municipal LiabilityTheories of Municipal Liability Express policy causes a constitutional Express policy causes a constitutional

violation. violation. Monell v. Dept. of Social Monell v. Dept. of Social ServicesServices, 436 U.S. 658 690 (1978). , 436 U.S. 658 690 (1978).

Widespread custom or practice is so Widespread custom or practice is so common that it has the effect of an express common that it has the effect of an express policy. One or two acts of wrongdoing policy. One or two acts of wrongdoing will not be enough. Most courts require will not be enough. Most courts require long-standing practice that is well settled.long-standing practice that is well settled.

42 U.S.C. § 198342 U.S.C. § 1983Municipal DefendantsMunicipal Defendants

A person with final policymaking authority A person with final policymaking authority causes the violation. Must look at state law to causes the violation. Must look at state law to determine who are final policymakers. determine who are final policymakers. Pembaur v. City of CincinnatiPembaur v. City of Cincinnati, 475 U.S. 469 , 475 U.S. 469 (1986).(1986).

Failure to train, supervise, or screen. Failure to train, supervise, or screen. City of City of Canton v. HarrisCanton v. Harris, 489 U.S. 378, 387 (1989). , 489 U.S. 378, 387 (1989). Must show that municipalityMust show that municipality’’s failure to train s failure to train (or supervise or screen applicants) amounts to (or supervise or screen applicants) amounts to deliberate indifference to the rights of persons deliberate indifference to the rights of persons who come into contact with officers.who come into contact with officers.

42 U.S.C. § 198342 U.S.C. § 1983ReliefRelief

Monetary DamagesMonetary Damages Compensatory damages (e.g., past/future lost wages, Compensatory damages (e.g., past/future lost wages,

medical expenses, pain and suffering)medical expenses, pain and suffering) Punitive damages (individual capacity suits only)Punitive damages (individual capacity suits only) Equitable/Injunctive Relief: granted only for Equitable/Injunctive Relief: granted only for

prospective, immient, irreparable harm with no other prospective, immient, irreparable harm with no other adequate remedy; past exposure to illegal conduct adequate remedy; past exposure to illegal conduct insufficient insufficient ““if unaccompanied by any continuing, if unaccompanied by any continuing, present adverse effects.present adverse effects.”” OO’’Shea v. LittletonShea v. Littleton, 414 , 414 U.S. 488 (1974).U.S. 488 (1974).

Other Accountability StatutesOther Accountability StatutesSuing Foreign Officials

Alien Tort Claims Act, 28 U.S.C. § 1350§ 1350: non-citizens may sue for torts committed in violation of international law or treaties

Torture Victims Protection Act, 28 U.S.C. §1350 §1350 note §1(a): US citizen or non-citizen may sue note §1(a): US citizen or non-citizen may sue for acts of torture and wrongful death claims for acts of torture and wrongful death claims based on extrajudicial killingbased on extrajudicial killing

Foreign Sovereign Immunities Act, immunity , immunity exception under 18 U.S.C. § 1605 or if waived exception under 18 U.S.C. § 1605 or if waived by foreign governmentby foreign government

Other Accountability StatutesOther Accountability StatutesState LawState Law

Person may have a claim against state or local officials under state tort law or state civil rights law

AttorneysAttorneys’’ Fees FeesContingency FeesContingency Fees

FTCAFTCA: limits on recovery of contingency : limits on recovery of contingency fees pursuant to 28 U.S.C. § 2678:fees pursuant to 28 U.S.C. § 2678:

Maximum of 20% of recovery where claims Maximum of 20% of recovery where claims resolved/settled before litigationresolved/settled before litigation

Maximum of 25% of recovery where claims Maximum of 25% of recovery where claims resolved after initiation of litigation resolved after initiation of litigation

BivensBivens/ §1983/ §1983: state law governs percentage : state law governs percentage of recovery in contingency fee casesof recovery in contingency fee cases

AttorneysAttorneys’’ Fees FeesRecovery from Federal DefendantsRecovery from Federal Defendants

Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, 5 U.S.C. § 504, provides for attorneys’ fees & costs to successful plaintiffs in civil suits, for costs and fees expended for prevailing claims.

Limitations in damages cases make EAJA most useful in injunctive relief claims.

AttorneysAttorneys’’ Fees FeesFee AgreementsFee Agreements

Retainer should specify type of fee Retainer should specify type of fee arrangement with client.arrangement with client.

Fee agreement should contemplate that Fee agreement should contemplate that defendants are not barred from defendants are not barred from demanding fee waiver in exchange for demanding fee waiver in exchange for settlement, settlement, Evans v. Jeff D.Evans v. Jeff D., 475 U.S. 717 , 475 U.S. 717 (1986).(1986).

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