Like I said in my last post, and as is very well known, Florida’s unemployment-benefits system crashed under the weight of applications from those out of work because of the pandemic. Under former Gov. Rick Scott, the state paid the company Deloitte Consulting almost $80 million for the system, called CONNECT. The system was designed to fail. It has had problems since it was launched in 2013; audits in 2015, 2016, and 2019 flagged a lot of problems. Many applicants have found the system unusable. And though the state has made great efforts to fix CONNECT, Florida’s processing of applications is still the slowest in the country. Current Gov. Ron DeSantis ordered an investigation into the system’s creation.
Two lawyers in Tallahassee filed lawsuits over CONNECT’s failure. The two lawsuits are proposed class actions; if the court grants class status, the lawsuits would seek relief for hundreds of thousands of Floridians. The lawsuits have received some press. Already, the lawyers claim they’ve heard from several thousand people.
The first lawsuit is a petition for writ of mandamus that asks the court to order the Department of Economic Opportunity, which operates the system, to immediately pay unemployment benefits. (The governor was originally a respondent but the petitioners dismissed him.) A hearing has been set for Wednesday. I am extremely skeptical of the petition, but this two-part post is about the second lawsuit.
In that suit, a group of plaintiffs filed a complaint for negligence (and gross negligence, for good measure) against Gov. DeSantis, the DEO, and Deloitte. While I’ll discuss only the government defendants, I don’t think the claim against Deloitte has any merit.
The plaintiffs allege that each of them tried to apply for unemployment benefits, and either weren’t able to successfully file an application or were denied benefits. They allege the state was “responsible for preparing and maintaining a system for the distribution of unemployment benefits.” The plaintiffs further allege that “[t]he system design and/or implementation is a failure” and that the state “fail[ed] to maintain [an] adequate unemployment compensation system.” For relief, the plaintiffs ask mostly for money damages.
Does the lawsuit have any legs? The short answer is no. Frankly, the lawsuit never should have been filed. It is giving false hope to the thousands of Floridians who have contacted the lawyers. When the state asks the judge to do so, he should dismiss the complaint.
Sovereign immunity
The doctrine of sovereign immunity is the starting point in the analysis of the negligence lawsuit, though I won’t address its application to the lawsuit until part 2 of the post. Under sovereign immunity, the state can’t be sued for its wrongs. A discussion of the doctrine’s background is not strictly necessary, but it will help explain why the negligence lawsuit will fail.
In Cauley v. City of Jacksonville (1981), the Florida Supreme Court offered the following “historical perspective” on the doctrine: “Sovereign immunity’s roots extend to medieval England. The doctrine flows from the concept that one could not sue the king in his own courts; hence the phrase ‘the king can do no wrong.’” This phrase is typically understood to mean the sovereign is incapable of committing a wrongful act.
Cauley’s account of the doctrine’s history is a gross oversimplification, as persuasive legal scholarship has shown. The Supreme Court of California wrote in the first paragraph of a footnote in a now superseded opinion:
Sovereign immunity began with the personal prerogatives of the King of England. In the feudal structure the lord of the manor was not subject to suit in his own courts. The king, the highest feudal lord, enjoyed the same protection: no court was above him. Before the sixteenth century this right of the king was purely personal. Only out of sixteenth century metaphysical concepts of the nature of the state did the king’s personal prerogative become the sovereign immunity of the state. There is some evidence that the original meaning of the pre-sixteenth century maxim—that the king can do no wrong—was merely that the king was not privileged to do wrong.
(Citations omitted.)
Ironically, the Supreme Court cited much of the relevant scholarship in footnote 4 of Cauley. But Florida case law has endlessly incanted Cauley’s account of the doctrine, imbuing sovereign immunity with a scope that its history doesn’t support.
This is important because the people of Florida, in article X, section 13, of our Constitution, gave the legislature the authority to waive sovereign immunity. The legislature did so in Florida Statutes § 768.28(1) so that the state could be sued in state court. Yet, as the Supreme Court said in 1984: “Article X, section 13 of the Florida Constitution provides absolute sovereign immunity for the state and its agencies absent waiver by legislative enactment or constitutional amendment. Section 768.28, enacted in 1973, constitutes a limited waiver by legislative enactment of the state’s sovereign immunity.” (Emphases added.)
The enormously broad conception of sovereign immunity has resulted in a complex set of rules that more often than not protects the state from liability. We’ll see that in analyzing the unemployment-benefits negligence suit against the state.
The two-step analysis
Determining whether the state can be held liable for the crash of the unemployment-benefits system requires a two-step analysis.
The statute waiving sovereign immunity, § 768.28(1), says the state can be sued in tort for money damages but only “under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specified in this act” (emphasis added). So the first step is figuring out if the state owed a duty of care to the plaintiff. Quoting a famous treatise, one appellate court said that “[d]uty, in general, has been defined as an ‘obligation … recognized by the law, requiring the person to conform to a certain standard of conduct, for the protection of others against unreasonable risks.’”
Duty is the threshold question. If the state doesn’t owe a duty, we don't need to proceed further. If it does, we move to the second step, which is to determine whether sovereign immunity bars the plaintiffs’ lawsuit. Part 1 of this post addresses step 1; part 2 will address step 2.
The “public duty” doctrine
Here is the plaintiffs’ articulation of the duty the state owed them in their complaint:
Defendants owed duties of care to Plaintiffs due to Plaintiffs being unemployed and seeking unemployment compensation … benefits. Alternatively, there was a special relationship between Defendants and Plaintiffs because of being unemployed and seeking benefits through CONNECT.
This seems to be a classic example of a public duty. The Supreme Court has “provided a ‘rough,’ general guide concerning the type of activities that either support or fail to support the recognition of a duty of care between a governmental actor and an alleged tort victim.” The Fifth District Court of Appeal explained:
Generally referred to as the public-duty doctrine, this guide … consists of four general categories that inform whether a duty of care is owed by a governmental entity to an individual. …
Central to the public-duty doctrine is the principle consistently applied by the courts that government liability may not be established unless there is a common law or statutory duty of care owed by the government to the individual rather than to the general public.
(Citations omitted.) Said differently, “A governmental duty to protect its citizens is a general duty to the public as a whole, and where there is only a general duty to protect the public, there is no duty of care to an individual citizen which may result in liability.” (Citation omitted.)
The public-duty doctrine is a limitation on governmental tort liability. While not formally an application of sovereign immunity, and despite the limited waiver of the immunity, critics argue the public-duty doctrine is its functional equivalent—"shield[ing] the government from liability merely because of the status of the wrongdoer; the doctrine protects the government from liability when a private individual would be liable." The exceptional scope of sovereign immunity infects what should be an unrelated inquiry.
The four categories of government activity
The most important case in this area is Trianon Park Condominium v. City of Hialeah, decided in 1985. There, the Supreme Court described the four general categories referred to above: “(I) legislative, permitting, licensing, and executive officer functions; (II) enforcement of laws and the protection of the public safety; (III) capital improvements and property control operations; and (IV) providing professional, educational, and general services for the health and welfare of the citizens.”
There is no governmental tort liability for activity that falls within categories I and II “because there has never been a common law duty of care” for them. But the government can be subject to liability for activity in categories III and IV because there are common-law duties for such activities.
The administration of unemployment benefits
Administering unemployment benefits doesn’t fall within category III. It also doesn’t fall within category IV. Thomas Sawaya, a former judge of the Fifth District Court of Appeal, provides examples of category IV activities in his invaluable treatise: the duty of teachers, educational institutions, and school boards to supervise their students; certain of the Department of Children & Family Services’ activities, like the decision not to take a child suspected of being abused into protective custody; providing medical services; and voluntarily assumed duties. Thomas D. Sawaya, Personal Injury & Wrongful Death Actions § 9:10 (2019-2020 ed.). The administration of unemployment benefits just isn’t the kind of activity Sawaya describes.
By process of elimination, the administration of unemployment benefits must fall within either category I or II. Addressing a statute-of-limitations issue, a federal bankruptcy court in Kansas applied a legal standard like the one we have in Florida and reached what I think is the right conclusion: “Governmental functions are those which are performed for the general public with respect to the common welfare. The management of the unemployment benefit system in Kansas is undoubtedly a function performed by the government to benefit the public welfare.” (Cleaned up.)
Unemployment benefits protect citizens from the harsh consequences of involuntary unemployment. No private person has ever owed a common-law duty with respect to unemployment benefits. And as unemployment benefits were created by statute, it is important to note that “legislative enactments for the benefit of the general public do not automatically create an independent duty to either individual citizens or a specific class of citizens.”
The claims in the plaintiffs' suit against the state are very similar to those made by the appellant in Layton v. Department of Highway Safety & Motor Vehicles, decided by the First District Court of Appeal in 1996 (h/t foswi). There, the department's conversion from one database to another resulted in an error classifying the appellant's license as suspended. She was arrested and sued the department over the error. The appellate court held "that the maintenance of DHSMV records is a function undertaken by the government for the public generally and that the duty to perform this function accurately runs to the public and not to individual licensed drivers." Like the department's administration of its database, the DEO's administration of CONNECT runs to the public, not to individual applicants.
No exception applies
There are exceptions to the public-duty doctrine in category II. The Supreme Court said in Everton v. Willard (1985) that, “if a special relationship exists between an individual and a governmental entity, there could be a duty of care owed to the individual.” The plaintiffs try to invoke the exception: “Alternatively, there was a special relationship between Defendants and Plaintiffs because of being unemployed and seeking benefits through CONNECT.”
The allegation is ridiculous on its face, and case law forecloses the theory. The exception is very narrow. A statement in the Supreme Court’s opinion in Pollock v. Florida Department of Highway Patrol (2004) exemplifies that: “A special tort duty does arise when law enforcement officers become directly involved in circumstances which place people within a ‘zone of risk’ by creating or permitting dangers to exist, by taking persons into police custody, detaining them, or otherwise subjecting them to danger.” (Citations omitted.) This implies that the risk is one of physical injury.
Administering unemployment benefits does not involve law enforcement. The DEO’s administration of unemployment benefits, including the processing of applications, does not involve the risk of physical injury.
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In the end, we’re left with a clear answer on the first step: The plaintiffs have not alleged that the state owed them any duty of care. All there is, is a general duty the state owes to the public as a whole. There can be no negligence or gross negligence. The lawsuit should be kicked out of court for that reason. But in part 2, we’ll assume there is a duty and move to the second step of the analysis: Does sovereign immunity bar the lawsuit?