Will this succeed? Hard to say, but I know which side I’m rooting for:
A group representing 90 young women — including U.S. Olympic team gymnasts Simone Biles, McKayla Maroney and Aly Raisman — filed federal tort claims against the FBI on Wednesday, seeking more than $1 billion in damages for the bureau’s mishandling of its investigation into sexual abuse by former U.S. Olympic team doctor Larry Nassar.
The majority of the claimants say Nassar abused them after his abuse was reported to the FBI in 2015, during a yearlong period in which no meaningful investigative action was taken and Nassar continued to sexually abuse young women and children. Many are athletes who were associated with the USA Gymnastics program or with Michigan State University, where Nassar maintained a clinic.
The Justice Department announced just before the Memorial Day weekend that the individual FBI agents whom the inspector general identified as responsible for the failure of the investigation — and for subsequent attempts to mislead investigators for the Justice Department’s Office of the Inspector General — would not face charges.
That in itself caused considerable outrage on Capitol Hill. The inspector general that first probed the FBI’s response to allegations of sexual abuse by Nassar concluded not just that the investigators bungled the probe but that they then lied about their actions to investigators. That it itself is a criminal offense, which raised questions about why the DoJ declined to pursue the matter further:
The Justice Department’s Criminal Division initiated a new review of the agents in October, just months after the Justice Department’s Office of Inspector General found the pair had failed to address claims by gymnasts that Nassar had sexually abused them “with the urgency that the allegations required.”
The report further suggested that the two agents lied to investigators to “make it appear that they had been diligent in responding to the sexual abuse allegations.” …
“This decision is infuriating. FBI agents who knew of Larry Nassar’s abuse, did nothing, and then lied about it will face no legal consequences for their actions,” Sens. Richard Blumenthal, D-Conn., and Jerry Moran, R-Kan., said in a joint statement.
“Our frustrations are compounded by the fact that the Department has provided no public explanation for this decision,” they added. “As we have noted before, the Justice Manual authorizes a case-closing letter explaining the Department’s decision-making in similar situations, especially where law enforcement officers are accused of misconduct or criminal behavior. This case certainly qualifies for such treatment.”
Put simply, this decision is a disgrace. It smacks of a continuing cover-up in the DoJ in the Nassar case, or at the very least a desire to prevent accountability for failures. One has to wonder whether the fact that this failure took place under the Barack Obama and Loretta Lynch-era FBI — and the James Comey FBI, for that matter — has something to do with the Merrick Garland-Joe Biden era DoJ’s reluctance to hold people accountable for it.
If Biles et al can’t get accountability through the DoJ, they naturally want to turn to the judiciary for satisfaction. But will it work? The statute under which this lawsuit will proceed may not stretch far enough to allow for it. The Federal Tort Claims Act (FTCA, 28 USC 2671-2680) allows people to sue federal agencies and avoid sovereign immunity for specific and direct injuries caused by federal employees. The language in the FTCA’s exclusions makes it clear that the damage or injury has to be direct to avoid exclusion (28 USC 2680):
The provisions of this chapter and section 1346(b) of this title shall not apply to—
(a)Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.(c)Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer, except that the provisions of this chapter and section 1346(b) of this title apply to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer …
It’s fairly opaque, but the intent of these exclusions in the law passed by Congress appears to limit the FTCA to injuries and damage caused directly by law enforcement personnel and employees of the federal government. It does not appear to allow for compensatory damages for indirect injury caused by a failure to enforce the law. Acts of “omission” are mentioned in earlier parts of the statute, but again appear to limit that to injuries and damage caused directly by federal employees’ omissions, not damage and injuries caused by non-employees.
Congress would have had rational reasons for such limitations, too, as the federal government would have had to deal with an avalanche of such complaints. Heck, every baby in America could be suing Joe Biden under the FTCA for injuries related to malnutrition in the infant formula shortage. Anyone who got injured or robbed by a federal parolee or clemency recipient could win in court under the broader interpretation here, and so on.
These women deserve to receive justice and accountability. Perhaps the negative publicity will force Garland and Biden into a settlement before this ever gets into court. If not, though, this lawsuit may not have much chance of providing the justice they deserve. That will have to come from Congress, which has waited far too long to act already.
Update: It’s very much worth noting that the FTCA grants the Attorney General plenary authority to settle such complaints even if it may exceed the exclusions in the act. Garland can offer a settlement here even if the lawsuit wouldn’t succeed in court. And I’m betting he does, soon.