FTCA UPDATE: Andrew Neuwirth at the Supreme Court? I hope not

NeuwirthLawCase Matters, Courts, For Lawyers

US Supreme Court, Washington DC

I think that among the long list of things that I do not want to do as a lawyer is be involved in a US Supreme Court case. While many lawyers would relish the opportunity to argue there, I think that it is not a good place for personal injury cases and I could see wasting a tremendous amount of time writing briefs, researching other circuits law etc. Plus, while I like to write in general, I really don’t like legal writing. Overall, I don’t see a lot of upside.

I wrote some time ago about my case involving a slip and fall at a TSA checkpoint at PHL and how the Federal Tort Claims Act and the Discretionary Function Exception (DFE) figured into it. Yesterday, there was an article in the Legal Intelligencer, our legal paper, describing the case of Xiaoxing Xi v. United States. It just so happens that the headline was that the FTCA and the Discretionary Function Exception are at the center of that lawsuit and the Third Circuit Court of Appeals heard the case and implored the US Supreme Court to address the FTCA and the DFE. Xi was a Temple Professor, who was arrested and charged as a spy for China. He filed suit for wrongful arrest and alleged a Constitutional violation. The Government responded that it was immune under the DFE. The Government won its claim at Summary Judgment and Xi appealed. The Third Circuit reversed the District Court and said that the Government was not immune and that the DFE did not apply. My case is worlds away from the Xi case but they both involve the DFA. How would I end up in the Supreme Court? Well, when there is a clear split in how different Circuits around the USA treat the FTCA, the Supreme Court will often step in to set a clear line about what the immunity is and how to apply it. Often, multiple similar cases will be lumped together to address all of the disparate issues at once.

In my case, the Government’s Motion for Summary Judgment is still pending. Regardless of what happens, the prospect of a US Supreme Court hearing an appeal on the very issue before the Court in my case is interesting. I think that whichever side wins the Motion, there will likely be an appeal to the Third Circuit and then the case will be teed up for a Writ to the US Supreme Court. I will keep you posted.