Legal Question in Administrative Law in District of Columbia

Can I sue the Federal Government
Under the FTCA, the government can only be sued 'under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.' 28 U.S.C. S 1346(b).

My question is, it seems the CRB may have been illegally formed under the Appointments Clause of the Constitution as they were NOT appointed by a president, by the Courts or by the head of a Department of the government. The Librarian of Congress is NOT the head of a government department and so had No Authority to appoint them. As such, their decision on the Royalty Rates affecting Webcasters and their subsequent appointment of SoundExchange to oversee these, puts Private Citizens (webcasters) liable. My question is can the CRB or the Librarian of Congress be Sued under the Federal Tort Claims Act as this appears to be a violation and negligence under the scope of their employment and would inflict undue suffering on webcasters?

Asked on 6/07/08, 5:09 pm

3 Answers from Attorneys

Jon van Horne Law Office of Jon W. van Horne

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Re: Can I sue the Federal Government

It would appear that you have given some thought to this issue. Illegal action by a federal agency is usually addressed under the judicial review provision of the Administrative Procedure Act (5 USC 702); however, the legislative branch is excluded from this remedy. The FTCA might be a basis for jurisdiction.

Anyway, as to the FTCA, cases can be brought against the legislative agencies (see 28 USC 2671). I assume you are aware that jurisdiction exists only after processing an administrative claim (see 28 USC 2675). All that said, I have to agree with Michael. Any challenge to the CRB using the FTCA will be a major uphill battle. This is especially true in light of the fact that judicial review of determinations of the Copyright Royalty Judges is available at the US Court of Appeals for the District of Columbia (see 17 USC 803(d)). It would be more likely to be able to challenge the Constitutionality of the CRB in that forum. Even there, it would be a difficult case.

Answered on 6/09/08, 9:34 am

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Daniel Press Chung & Press, P.C.

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Re: Can I sue the Federal Government

There is authority for challenging federal action based on illegal/unconstitutional appointments, and in fact there is a serious issue right now about the validity of certain administrative patent judges. However, the basis for such challenges would not be a FTCA suit, as this is not the equivalent of a private tort (the FTCA covers things like government vehicles being in traffic accidents, and government doctors committing malpractice). A challenge to the appointment could be made in an appeal of a CRB decision to the DC Circuit, or possibly by direct action against the governmental parties, not seeking monetary relief.

Answered on 6/10/08, 6:28 pm

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