Article by Floyd D. Shimomura
Misrepresentation by the federal government can take many forms and cause very different kinds of injury. The following are some examples. A federal air traffic controller radios an incorrect position to an airplane and causes sixteen parachutists to jump to their death through a low cloud cover into Lake Erie. The United States Coast Guard negligently fails to repair a lighthouse beacon and as a result a barge runs aground at night. A negligent appraisal by the Federal Housing Administration causes a home buyer to pay an excessive amount for a defective house. Federal agricultural officials induce farmers to buy federal crop insurance by erroneously assuring them that their crop is eligible for coverage, and their crop is subsequently destroyed by drought. A draft board incorrectly informs a young man of his draft lottery number, causing his wrongful induction into the military service. A resident alien is erroneously informed that refusal to participate in wartime military service would not affect his subsequent ability to acquire citizenship, and he loses his eligibility for United States citizenship as a result. As these examples suggest, federal misrepresentation involves the communication of incorrect information by the government to an individual, thereby inducing the individual to change his position for the worse.
This article addresses the following question: what legal remedies, if any, should an individual possess if he reasonably relies on a representation by the federal government and is injured because the representation proves to be false? Existing law does not provide an optimistic answer. The Federal Tort Claims Act specifically retains the government's sovereign immunity for "[a]ny claim arising out of . . . misrepresentation, [and] deceit." Moreover, the Supreme Court has yet to recognize that a misrepresentation may provide the basis for an estoppel against the government. Given the paucity of remedies, the literature on this topic has been understandably bleak in its assessment. Since the injustices have been great, the writings have been nearly unanimous in calling for reform. Nevertheless, the scholarly research to date has focused primarily on the doctrine of equitable estoppel and whether it ought to be applicable against the federal government. Other legal theories that can address the problem of federal misrepresentation have been largely ignored. Such neglected theories include negligent misrepresentation, deceit, the notice aspect of due process, and, in the physical injury context, ordinary negligence.
This article attempts a broader analysis. Its focus is on federal misrepresentation rather than merely estoppel. It attempts to define a general framework from which the problem of misrepresentation by the federal government may be considered. Thus, the discussion is divided into the three basic types of injury that may occur: Part II concerns pecuniary harm, part III deals with physical injury, and part IV covers loss of liberty. This approach is useful for at least three reasons. First, legal theories that address misrepresentation have tended to develop with respect to the type of resulting injury. For example, private tort law has historically addressed pecuniary harm through the theories of deceit and negligent misrepresentation, while it has addressed physical injury under ordinary negligence theories. Second, each type of injury raises a different set of competing policy concerns. For example, while restoring the liberty of a person who may have violated the criminal law in reliance on erroneous governmental advice may tend to erode the rule of law, it will not affect the public treasury. However, providing compensation for physical injury resulting from a federal misrepresentation may have precisely the opposite impact. Third, comparison is useful in developing a consistent remedial goal for all three types of injury.
The discussion may be summarized as follows: people have an important interest in making decisions affecting their financial affairs, physical safety, or liberty without being misled by the federal government. Existing law provides little protection and permits great injustice. Thus, the law ought to protect the victims' reliance interest by affording them private theories of relief unless there are compelling reasons not to do so. Several changes can help move the law toward this goal. For pecuniary harm, Congress should remove the government's immunity from negligent misrepresentation and the Supreme Court should, with certain qualifications, recognize that the government may be estopped by its own misrepresentations. For physical harm, the federal courts should employ ordinary negligence principles to remedy federal misrepresentations that create a risk of physical injury to person or property. Finally, for loss of liberty, the Supreme Court ought to develop the notice aspect of due process, rather than estoppel, as its primary theory for reconciling the protection of the reliance interest with the rule of law.
About the Author
Floyd D. Shimomura. Acting Professor of Law, University of California at Davis School of Law. B.S. 1970, J.D. 1973, University of California at Davis.
Citation
60 Tul. L. Rev. 596 (1986)