Today’s Baltimore Sun contains an op-ed by Daniel Lyons, a Harvard Law School student, discussing the possibility of a lawsuit against the U.S. government for its role in warning countries affected by the Indian Ocean tsunami. He writes,

“Recently, attorney Edward Fagan announced he would file a class-action lawsuit in New York against the National Oceanic and Atmospheric Administration’s Pacific Tsunami Warning Center. Incredibly, Mr. Fagan alleges the Hawaii-based research facility should be held liable for failing to warn the world about an earthquake that happened nearly 7,000 miles away in an ocean the institute does not study.”

For news stories describing the lawsuit see here and here.

A few years ago Bobbie Klein and I collaborated on a set of papers that sought to summarize the issue of legal liability in the public and private sectors for weather forecasts.

(PDF) Klein, R.A. and R.A. Pielke, Jr., 2002: Bad Weather? Then Sue the Weatherman! A review of legal liability for predictions and forecasts: Part I, Public Sector. Bulletin of the American Meteorological Society 83:1791-1799.

(PDF) Klein, R.A. and R.A. Pielke, Jr., 2002: Bad Weather? Then Sue the Weatherman! A review of legal liability for predictions and forecasts: Part II, Private Sector. Bulletin of American Meteorological Society, 83: 1800-1807.

We found that “In general, claims against the federal government based on weather forecasting or failing to issue weather warnings have been (and likely will continue to be)resolved in favor of the government on the basis of immunity under the Federal Tort Claims Act.” Before proceeding with a discussion of the tsunami, a disclaimer – I am not a lawyer and you are reading a weblog.

OK, here is my two cents on a “tsunami lawsuit.” There are various jurisdictions in which a lawsuit might be filed against the U.S. government including federal court, state court and under international law. With respect to federal jurisdiction, history would suggest that the prospects for winning a lawsuit against NOAA are slim to none. Here is what we wrote in our paper,

“… the federal government continues to be immune from lawsuits based on the exercise or failure to exercise a discretionary function or duty, whether or not the discretion is abused (the “discretionary function” exception), as well as from lawsuits arising out of misrepresentation (the “misrepresentation” exception) [28 U.S.C. sec. 2680(a), (h)]. Courts will dismiss a lawsuit against the government without reaching a decision on the merits of the suit if one of these exceptions applies… if a mandatory statute, regulation, or policy leaves no room for discretion and the government complies with the mandate, it is shielded from liability. If the government violates that mandate, it is not shielded from liability. If the government is granted discretion, a strong presumption arises that its decisions are grounded in policy and thus the government is shielded from liability. To get around the discretionary function exception a plaintiff would have to show that the challenged decision, though discretionary, is not grounded in the policy of the regulatory regime. Gaubert made clear that decisions made at the operational level as well as those at the policy-making or planning level are covered by the discretionary function exception if they involve choice and judgment.”

There are exceptions however, but they do not seem to be relevant in the case of the tsunami.

“However, it would be too strong a statement to say that the federal government will never face a liability risk in its forecasting enterprise. In instances where all discretion has been removed, if other FTCA requirements were met, the government’s failure to follow a mandatory statute, regulation, or policy could expose it to liability… in U.S. v. Gaubert, the U.S. Supreme Court established a two-part test to decide whether the FTCA’s discretionary function exception applies. The first part examines whether the challenged conduct was truly discretionary- that is, whether it involved an element of judgment or choice. This requirement is not satisfied-and the suit may therefore proceed-in circumstances where a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,” because “the employee has no rightful option but to adhere to the directive.” If the conduct involved choice or discretion, the second part of the test requires that the court “determine whether that judgment is of the kind that the discretionary function exception was designed to shield.” Because the discretionary function exception’s purpose is to “prevent judicial ’second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort,” the exception “protects only governmental actions and decisions based on considerations of public policy.” When a statute or regulation allows a federal employee to act with discretion, “it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.” The focus of the inquiry is on the nature of the actions taken and “whether they are susceptible to policy analysis.”"

In short, the lawsuit seems pretty far-fetched and frivolous to me. Though if its purpose is to get some publicity, then it has served its purpose.

Note: There is a separate issue currently being debated in the weather community and that is whether or not NOAA’s performance could have better during the tsunami if they were focused more on their core mission. This claim has been raised by Barry Myers of AccuWeather and has received a response from the NWS. If debate continues on this subject we’ll discuss it, but for now it looks like continuation of the decades-long squabble between the NWS and the commercial weather industry, a topic discussed in depth here.

For further reading:

Loper, R. B., 1988: Red sky in the morning, forecasters take warning: The liability of meteorologists for negligent weather forecasts. Texas Law Rev., 66, 683-713.