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Is there a cause of action for "Outrageous conduct" that does not depend on the vulnerability to the emotional distress of an individual but might be properly applied to a public official (acting in official capacity) due to the effects on society as a whole?

I found California jury instructions regarding the intentional infliction of emotional distress that defined outrageous conduct as:

“Outrageous conduct” is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure.

If that definition fits the acts (or inaction) of a public official, might it be applicable under a different cause of action, e.g. mandamus under 28 U.S. Code § 1361? (See for example https://www.judicialwatch.org/documents/jw-v-united-states-capitol-police-121-cv-00401/) Could outrageous conduct overcome allowance for a discretionary duty? (I think there was a hearing, in this case, today, but the results aren't public yet.)

Stretching my lack of knowledge of the legal process, could outrageous conduct be used in a class action?

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  • What kind of public official? Was the conduct in his official capacity or are we talking about conduct unrelated to their official status?
    – bdb484
    Aug 31, 2021 at 16:40
  • Official capacity, e.g. the U.S. Justice Department and USCP in my other questions. Aug 31, 2021 at 17:11
  • "Outrageous conduct" and "mandamus" really don't make sense together. Mandamus is for situations where a public official has a routine duty that involves no discretion but is refusing to do it. It's basically a court order saying "do your job." Outrageous conduct as you've described it is more about what someone did in the past, so the appropriate remedy would be to award money.
    – cpast
    Sep 2, 2021 at 23:19

2 Answers 2

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Is there a cause of action for "Outrageous conduct" that does not depend on the vulnerability to the emotional distress of an individual but might be properly applied to a public official (acting in official capacity) due to the effects on society as a whole?

No. There is no such cause of action.

A public official acting in the official's official capacity is immune from civil liability in tort for intentional acts that do not violate a clearly established constitutional right.

There are some narrow exceptions to this general rule. For example, certain employment discrimination lawsuits are allowed. Similarly, for example, embezzlement of private funds held in a fiduciary capacity by a public official in charge of conducting foreclosures would be actionable in many states. But there are no exceptions that are in any way a fit to the fact pattern described.

Furthermore, at least in federal courts, there can't be such a cause of action. An action that has an effect on society as a whole is, by definition, an act which no one has standing to sue regarding. Standing to sue, which is a subject matter jurisdictional requirement in federal court, requires a particularized injury to a legally protected interest of an individual that is distinct from the injury caused to the general public, or taxpayers generally, or citizens generally.

State law, in principle, can give standing to someone who does not have standing under this federal constitutional law standard in state court, but most states make only the most narrow exceptions to the principle. For example, some states give someone standing to sue for violation of state constitutional budget and tax rules that apply to legislation generally. Often standing exceptions and exceptions from the federal court case and controversy requirement (which is also a matter of subject matter jurisdiction in federal court) are waived at the same time.

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  • Isn't mandamus under 28 U.S. Code § 1361 also an exception to the rule? Sep 1, 2021 at 21:27
  • I sometimes wonder if mandamus gets ignored because the plaintiff can't make any money doing it. Sep 1, 2021 at 21:30
  • Mandamus applies to a non-discretionary duty and still requires standing (someone with particularized harm from the non-performance of the duty must sue). It also can't afford money damages, only injunctive relief. "Outrageous conduct" would involve discretionary actions.
    – ohwilleke
    Sep 1, 2021 at 23:54
  • Same info as below: Assume the officer is concealing records that should be public, and those records MIGHT contain evidence of other causes of action. There is a currently pending case Judicial Watch v. U.S. Capitol police that could be an example. I think you've seen it in a previous question. Sep 2, 2021 at 3:47
  • Updated question with a link to an example complaint. Sep 2, 2021 at 3:54
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Attempting to sue public officials for any kind of harm, psychological or otherwise is always problematical, not only because of statutory immunity, but because there is a presumption that the official is acting on behalf of the state and therefore acting "beneficially" (as crazy as it is to assume that the state is "beneficial", that is nevertheless the presumption).

Therefore, any successful action against a public official generally takes one of three forms:

(1) The official is explicitly breaking a hard and fast law and there is concrete evidence that the official has broken the law.

(2) The official is not doing their express duty as defined by the statute that enables them, and their failure to do their duty is DELIBERATE, and their failure to do their duty is CONSEQUENTIAL, ie has serious negative consequences for actual people and is not trivial or meaningless.

(3) The official is acting in an arbitrary way, in other words helping (or persecuting) some people but not others, and is doing so either because of BIAS or because they have been BRIBED.

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  • the "BIAS" bit surely comes with more caveats, otherwise I can see a lot of lawsuit that aren't actually happening. Aug 31, 2021 at 21:42
  • Same comment as the other answer: isn't mandamus under 28 U.S. Code § 1361 also an exception to the rule? Sep 1, 2021 at 21:28
  • @Burt_Harris You don't need a regulation to force a public official to do their duty. Any properly jurisdictional court will entertain a petition for a writ of mandamus in appropriate circumstances. I guess I don't understand what you are asking? Are you trying punish this guy, remove him, get him to do something, or WHAT??? You need to say what the hell you are trying to do.
    – Cicero
    Sep 1, 2021 at 23:08
  • Let's say get him to do something he should do. Assume the officer is concealing records that should be public, and those records MIGHT contain evidence of other causes of action. Sep 2, 2021 at 3:40
  • Updated question with a link to an example complaint. Sep 2, 2021 at 3:53

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