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Tort Law

Simmons v. Himmelreich - Post-Argument SCOTUScast

SCOTUScast 3-28-16 featuring Aaron Nielson
Aaron Nielson March 28, 2016

On March 22, 2016, the Supreme Court heard oral argument in Simmons v. Himmelreich. This case arises from a lawsuit filed by federal prisoner Walter Himmelreich as the result of an assault by a fellow prisoner.  Although several of Himmelreich’s claims were dismissed in an initial round of litigation, the U.S. Court of Appeals for the Sixth Circuit allowed two to proceed on remand, of which one was a “Bivens” claim made against certain officials in their individual capacities for failing to protect him in violation of the Eighth Amendment. The district court ultimately dismissed the claim, concluding that the “judgment bar” of the Federal Tort Claims Act (“FTCA”) precluded Himmelreich from pursuing a Bivens action against the officials individually when his underlying FTCA claim against the government had failed. On a subsequent appeal the Sixth Circuit disagreed and again revived the Bivens claim, reasoning that the grounds on which the FTCA claim had failed--namely, an exception to liability--indicated a lack of subject matter jurisdiction that did not trigger the FTCA judgment bar.  The federal officials sought certiorari.

The question before the Supreme Court is whether, in an FTCA action brought under Section 1346(b), a final judgment dismissing the claim on the ground that relief is precluded by one of the FTCA exceptions to liability, 28 U.S.C. § 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim.

To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.

Dollar General Corporation v. Mississippi Band of Choctaw Indians - Post-Argument SCOTUScast

SCOTUScast 12-15-15 featuring Zachary Price
Zachary Price December 15, 2015

On December 7, 2015, the Supreme Court heard oral argument in Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges.

The question before the Supreme Court is whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

OBB Personenverkehr AG v. Sachs - Post-Decision SCOTUScast

SCOTUScast 12-7-15 featuring Edwin Williamson
Edwin D. Williamson December 07, 2015

On December 1, 2015, the Supreme Court decided OBB Personenverkehr AG v. Sachs. This case concerns the scope of the commercial activity exception to the Foreign Sovereign Immunities Act (FSIA).  Under this exception, sovereign immunity does not bar a lawsuit “based on a commercial activity carried on in the United States by [a] foreign state.”  In this case Carol Sachs sued the Austrian national railroad when she suffered serious injuries while attempting to board an Austrian train.  The question is whether Sachs’ purchase of her rail pass in the United States brought her suit within the commercial activity exception.  The U.S. Court of Appeals for the Ninth Circuit held that it did. 

By a vote of 9-0, the Supreme Court reversed the judgment of the Ninth Circuit.  Chief Justice Roberts delivered the opinion for a unanimous Court, holding that Sachs’ suit was “based on” the railway’s conduct in Austria and therefore outside the FSIA’s commercial activity exception.

To discuss the case, we have Edwin D. Williamson, who is Of Counsel at Sullivan & Cromwell LLP.

OBB Personenverkehr AG v. Sachs - Post-Argument SCOTUScast

SCOTUScast 11-18-15 featuring Edwin Williamson
Edwin D. Williamson November 18, 2015

On October 5, 2015, the Supreme Court heard oral argument in OBB Personenverkehr AG v. Sachs. This case involves a dispute regarding whether federal courts have jurisdiction over a lawsuit brought by Carol Sachs against OBB Personenverkher--the Austrian national railroad--when her legs were crushed by a train in Austria while she was using a Eurail Pass that she had purchased in the United States. 

The question before the Supreme Court is twofold: (1) whether common law principles of agency apply in determining whether an entity is an “agent” of a foreign state under the Foreign Sovereign Immunities Act of 1976 (FSIA); and (2) whether, under the first clause of the commercial activity exception of the FSIA, a tort claim for personal injuries suffered in connection with travel outside of the United States is “based upon” the allegedly tortious conduct occurring outside of the United States, or the preceding sale of the ticket in the United States for the travel entirely outside the United States.

To discuss the case, we have Edwin D. Williamson, who is Of Counsel at Sullivan & Cromwell LLP.

United States v. Wong and United States v. June - Post-Decision SCOTUScast

SCOTUScast 5-12-15 featuring Richard Peltz-Steele
Richard J. Peltz-Steele May 12, 2015

On April 22, 2015, the Supreme Court issued its decision in two related cases: United States v. Wong and United States v. June

In both cases the central issue is whether the time limit for filing a lawsuit or claim with a federal court or agency under the Federal Tort Claims Act can be suspended, or “tolled,” for reasons of equity.

In an opinion delivered by Justice Kagan, the Court held by a vote of 5-4 that limitations periods under the Federal Tort Claims Act are subject to equitable tolling. Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined Justice Kagan’s opinion for the Court. Justice Alito filed a dissenting opinion, which Chief Justice Roberts and Justices Scalia and Thomas joined. The decision of the Ninth Circuit was affirmed and the case remanded.

To discuss the case, we have Prof. Richard Peltz-Steele, who is a Professor of Law at the University of Massachusetts at Dartmouth School of Law.