Gregory T. Long & FRTIB

[Braveheart]

Like any other institution, the federal government and its employees can harm people through negligent actions. A Veterans Affairs doctor may cause a wrongful death through negligence and medical malpractice. A law enforcement officer may commit a heinous act of brutality that results in serious injuries to the victim. A contractor working on a government project may cause a construction accident.
But suing the Federal Government for the wrongdoing of its employees is different from any other type of case and requires attorneys with specialized knowledge in this area. The trial team at Leesfield Leighton & Partners has a proven track record litigating claims against the U.S. Government. We understand how to make the Federal government pay damages for losses and suffering caused by the negligence of government employees.

http://www.leesfield.com/Uploads/practice%20areas/pa-government_claims_resize.jpg (http://www.leesfield.com/CM/Custom/contact.asp)The Federal Tort Claims Act (FTCA), is a statute enacted by the United States Congress in 1946 permitting private parties to sue the United States in a federal court for most torts committed by persons acting on behalf of the United States. The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment. 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." Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual.
The FTCA further provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, it also provides an exception. The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The government is not liable if the claim against law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract. Congress has not waived the government's sovereign immunity against all law enforcement acts or omissions.
Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim "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." 28 U.S.C. S 2680(a).
In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two‑part test. First, the question must be asked whether the conduct involved "an element of judgment or choice." This requirement is not satisfied if a "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." Once the element of judgment is established, the next inquiry must be "whether that judgment is of the kind that the discretionary function exception was designed to shield" in that it involves considerations of "social, economic, and political policy."
The FTCA specifies that the liability of the U.S. is to be determined "in accordance with the law of the place where the [allegedly tortious] act or omission occurred." In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law.

[Braveheart]

FEDERAL TORT CLAIMS ACT - The FTCA provides a limited waiver of the federal government's sovereign immunity when its employees are negligent within the scope of their employment. 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). Thus, the FTCA does not apply to conduct that is uniquely governmental, that is, incapable of performance by a private individual.

28 U.S.C. S 2680(h) provides that the government is not liable when any of its agents commits the torts of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights. However, it also provides an exception. The government is liable if a law enforcement officer commits assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. The government is not liable if the claim against law enforcement officers is for libel, slander, misrepresentation, deceit, or interference with contract. Congress has not waived the government's sovereign immunity against all law enforcement acts or omissions.

Furthermore, the FTCA is limited by a number of exceptions pursuant to which the government is not subject to suit, even if a private employer could be liable under the same circumstances. These exceptions include the discretionary function exception, which bars a claim '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.' 28 U.S.C. S 2680(a).

In order to determine whether conduct falls within the discretionary function exception, the courts must apply a two-part test established in Berkovitz v. U.S., 486 U.S. 531, 536 ('88). See Kennewick Irrigation Dist. v. U.S., 880 F.2d 1018, 1025 (9th Cir.'89). First, the question must be asked whether the conduct involved 'an element of judgment or choice.' U.S. v. Gaubert, 499 U.S. 315, 322 ('91) (quotation omitted). This requirement is not satisfied if a 'federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.' Berkovitz, 486 U.S. at 536. Once the element of judgment is established, the next inquiry must be 'whether that judgment is of the kind that the discretionary function exception was designed to shield' in that it involves considerations of 'social, economic, and political policy.' Gaubert, 499 U.S. at 322-23.

Absent specific statutes or regulations, where the particular conduct is discretionary, the failure of the government properly to train its employees who engage in that conduct is also discretionary. See, e.g., Flynn v. U.S., 902 F.2d 1524 (10th Cir.'90) (failure of National Park Service to train its employees as to proper use of emergency equipment was discretionary).

The FTCA specifies that the liability of the U.S. is to be determined 'in accordance with the law of the place where the [allegedly tortious] act or omission occurred.' 28 U.S.C. S 1346(b). In an action under the FTCA, a court must apply the law the state courts would apply in the analogous tort action, including federal law. See Caban v. U.S., 728 F.2d 68, 72 (2d Cir.'84); see also Richards v. U.S., 369 U.S. 1, 11-13 ('62).

Under California law, a California court would apply federal law to determine whether an arrest by a federal officer was legally justified and hence privileged. See Trenouth v. U.S., 764 F.2d 1305, 1307 (9th Cir.'85) (applying federal law in an FTCA action for false imprisonment to determine legality of arrest by Department of Defense officers in California); cf. Gasho v. U.S., 39 F.3d 1420, 1427-32 (9th Cir.'94) (applying federal law in FTCA false imprisonment action against federal customs officials to determine if probable cause justified arrest in Arizona).

A plaintiff cannot bring an FTCA claim against the United States based solely on conduct that violates the Constitution because such conduct may violate only federal, and not state, law. See FDIC v. Meyer, 114 S.Ct. 996, 1001 ('94).

The substitution provision of the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA) provides that '[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose . . . the United States shall be substituted as the party defendant.' 28 U.S.C. S 2679(d)(1). The purpose of this amendment to the Federal Tort Claims Act was to 'remove the potential personal liability of Federal employees for common law torts committed within the scope of their employment, and . . . instead provide that the exclusive remedy for such torts is through an action against the United States under the FTCA.' H.R. Rep. No. 700, 100th Cong., 2d Sess. 4 (1988)

Under the FTCA, the U.S. is subject to liability for the negligence of an independent contractor only if it can be shown that the government had authority to control the detailed physical performance of the contractor and exercised substantial supervision over its day-to-day activities. See U.S. v. Orleans, 425 U.S. 807, 814-15 ('76); Letnes v. U.S., 820 F.2d 1517, 1519 (9th Cir.'87).

[Braveheart]

Federal Retirement Thrift Investment Board: Many Responsibilities and Investment Policies Set by Congress GAO-07-611 (http://www.gao.gov/new.items/d07611.pdf) June 21, 2007 Highlights Page (http://www.gao.gov/highlights/d07611high.pdf) (PDF) Full Report (http://www.gao.gov/new.items/d07611.pdf) (PDF, 27 Pages) Accessible Text (http://www.gao.gov/htext/d07611.html) (HTML) The Thrift Savings Plan (TSP), a retirement savings and investment plan for federal workers, held approximately $210 billion in retirement assets for 3.7 million participants, as of February 2007. TSP is managed by the Federal Retirement Thrift Investment Board (FRTIB). In light of questions about TSP oversight, we examined (1) the current structure for overseeing FRTIB, (2) how the statutorily defined fiduciary responsibilities of FRTIB compare to the responsibilities of private plan sponsors and how FRTIB fulfills its responsibilities, (3) how FRTIB's investment policies differ from those of private plan sponsors, and (4) FRTIB's statutory responsibilities to educate plan participants about TSP and other retirement issues and how these responsibilities compare with those of private and state and local government employee plan sponsors.
The Department of Labor (DOL) and Congress oversee FRTIB. In accordance with the law establishing TSP, DOL conducts regular audits to determine the level of compliance with laws and regulations as well as to ensure the efficiency and effectiveness of operations. Congress requires FRTIB to submit its annual budget and other reports, and to undergo an independent financial audit. However, Congress has not held regular FRTIB oversight hearings. Also, DOL does not submit its audit reports directly to Congress, and has not yet been provided with a mechanism to communicate issues of critical concern to Congress. FRTIB's fiduciary duties are similar to those of fiduciaries of private sector plans. To act prudently and solely in the interest of plan participants, FRTIB has implemented policies and practices in several of the areas mentioned in DOL's guidance for private sector plans. However, unlike the law governing private plans, the Federal Employees' Retirement System Act of 1986 (FERSA)--the law that governs the administration of TSP--contains special liability protections for Board members and the Executive Director. FRTIB has less discretion than private sector plan sponsors in setting investment policy because the investment options available to TSP participants are largely outlined in law, whereas private sector plan sponsors are responsible for choosing which investment options to offer participants. TSP's authorizing statute specifies the number and types of funds available to participants, and requires that some of these funds track indexes, which are broad, diversified market indicators. FRTIB chooses the particular indexes for the funds to track, reviews the investment options, and suggests additional funds. Changing TSP investment options requires legislation. FRTIB and the Office of Personnel Management (OPM) are responsible for educating participants about TSP and general retirement issues, while the private and state and local government employee plan sponsors that we interviewed are governed by different rules. By statute, FRTIB is charged with developing educational materials for participants about TSP-specific issues. FRTIB also assists OPM, which is required to provide general retirement education to federal employees and train retirement counselors at federal agencies to provide information to federal employees. Private plan sponsors as well as the state and local government employee plan sponsors that we spoke with are responsible for educating participants about their plans, but often supply general retirement information as well. As the size and complexity of TSP have grown, an appropriate level of oversight of FRTIB is critical to ensuring that federal workers' retirement savings are properly managed. GAO previously recommended that Congress consider amending FERSA to require DOL to establish a formal process by which the Secretary of Labor can report to Congress issues of critical concern about actions of the Executive Director and Board members.

Subject Terms
Stocks (securities)
Retirement benefits
Retirement
Reporting requirements
Investment planning
Government retirement benefits
Federal employee retirement programs
Education
Congressional oversight
Comparative analysis
Thrift Savings Plan

[Fivetears]

The plantiff (or Class) still bears the burden of proof, that he, she or it has been "harmed." Not easy when the arena of investment is filled with "my trades woulda, shoulda, and coulda made me some money." Provable fiscal harm this early in the complaint, with regard to TSP IFT, appears very subjective, IMO.

[Braveheart]

The plantiff (or Class) still bears the burden of proof, that he, she or it has been "harmed." Not easy when the arena of investment is filled with "my trades woulda, shoulda, and coulda made me some money." Provable fiscal harm this early in the complaint, with regard to TSP IFT, appears very subjective, IMO.

1. The targeted group (class) was punished without violating any concrete law. Just a made up rule that carries no weight by the FRTIB.

2. The IFT's by Mail is proof that not only has the FRTIB gone out of their way to inflict harm and damage they harass this group by not processing a form 50 in any timely manner.

3. If Mr. Long was concerned about everyone since that is his job he would have at least allowed the (class) group to make an IFT via Phone.

4. There is no doubt the FRTIB has cost the group money in Postage and members have proof of delivery yet it was not important enough to process the IFT's on time to cause more stress and harm.

5. The group and every TSP member is now in fear of violating some rule change that does not exist.

6. This mass punishment was done with malice and the price will continue to rise every minute the FRTIB and Congress allow this to continue when fact is Mr. Long was not truthful and neither was the FRTIB members - GUILTY all day every day in any Court

[camper65]

FYI
TSP 50 sent out last tuesday express mail / return receipt.
Was delievered Wed.
Change in my account was noted Sat morning.
For the two days it languished on someone desk i lost appro $1600.00

[qibovin]

Hmm, so the rear orifice assault is immune...

From the What you can do thread:
I think, like so many other government bureaucracies, they fully expect to get away with this simply because no one will bother to legally challenge this. Even the phone companies and other industries have caught on to this technique, nickel and diming people to death with cryptic fees and surcharges that seem hardly worth the (purposefully emplaced) endless phone trees and unempowered layers of middle management in order to "fix." If the occassional customer does bother to protest in just the right way for long enough, they will often reluctantly fix things while they continue to collect from the other dumb souls, using those revenues to stave off your lawsuit.

So far, they appear to be right.

Will TSP participants continue to act like the lazy dog who whines constantly about the tack on which he's sitting but off of which he is not quite motivated enough to get? Much longer and the festering infection from the tack will kill the dog, and FRTIB will be beefing up their resumes with how much they saved on vet fees.

[Guest2]

I just received a FEDex Document Package delivery. I can't take anymore
bad news today. Has anyone received the same from the Federal Retire-
ment Thrift Inv out of Washington DC.? If so, what the hell is it now ? An
IV to take my blood more easily? SHOULD I OPEN IT ?
:confused:

[Guest2]

ok, i opened it. i better go to my thread for this one:mad:

[nsurf9]

Irreparably harm TSP members' abilty to be proactive in managing and building their TSP retirement

Braveheart, good work on the responsibilities and law of TSP. Generally, a breach of fiduciary duty sounds in negligence and contract. You're seems to me, too, that your right - the TSP Board is cloaked in soverign immunity on both theorys of recovery as non-waived conduct w/i scope of employment, under a dicretionary function of a high ranking official.

However, generally, money damages are "at law" remedies for breach of conract and acts of negligence. Discussed above - and yes, there's no remedy there - Long and the Board are probably immune.

On the other hand, however, on the "equity" side of the court, the Temporary Restraining Order (TRO) my still lie for exactly the reason the "at law" action does not. The equity side of the court, or jurisdiction, doesn't apply unless you have remedy at law but damages can't make you whole. Long and the Board's soverign immunity precluding remedy - is exactly what equity addresses.

Granted, proving money damages many be difficult where profits are speculative. However, showing that Long and the Board's radical change in IFT policy will irreparably harm TSP members' abilty to be proactive in managing and building their TSP retirement may be the better and easier argument. TSP members are not professional investors - it requires an opportunity to trade and, therein, learn. if the Board removes their abilty to practice.

The Board my be cloaked with immunity against liability - but I still believe a court can, and should, darn-well stop the new and severly restrictive IFT policy, temporarily, by injunction.

[nsurf9]

You have my word, I'll put these editorial blurbs on MS Word and re-read them before I post them. Let me know if I need to clarify the above (make readable).

No guarantees on non-blurbs.

Nsurf9

[Braveheart]

Need to fix link will update