Any suggestions on where to find a detailed side-by-side comparison of the Administrative Procedures Act use versus the use of tort law for federal agency cases? Thanks for suggestions. Searching on Scholar and other free law search engines. Expecting to, but not finding any review specific to my request.

  • "Tort" is not an acronym. It is s word borrowed from French that means "wrong."
    – phoog
    Jan 27, 2023 at 12:37

1 Answer 1


There isn't much to compare.

The Administrative Procedures Act creates a variety of statutory rights and remedies, primarily in connection with the issuance of regulations and to a lesser extent with the quasi-judicial adjudication of disputes with a governmental agency arising from agency action or a request for agency action.

Federal government agencies, except in a narrow class of lawsuits for money damages cases adjudicated by the U.S. Court of Claims (e.g. for automobile accidents involving a federal government agency employee) where sovereign immunity is expressly waived, reverse condemnation actions under the 5th Amendment to the U.S. Constitution, and select constitutional violations in Bivens actions (mostly against federal law enforcement officers), are immune from lawsuits arising on tort theories under the doctrine of sovereign immunity. Only one of these remedies - a reverse condemnation action - is allowed as a remedy for agency action also governed by the Administrative Procedures Act, and both are present only in very rare cases where a new regulation or agency action deprives someone of all economic use of their property without just compensation.

I suspect that what you are really looking for a different comparison about which there is a moderate sized academic literature that is discussed by economists and in legal theory (especially by tort law scholars).

This is the literature comparing two different ways other than criminal law for the government to regulate unlawful conduct by private actors.

One way to do that is with "private law" by authorizing someone who is harmed by the unlawful conduct of a private actor to sue the person who engaged in the unlawful conduct in a private tort law lawsuit (a tort is a "civil wrong" that may be remedied in a private lawsuit for money damages).

Another way to do that is to create a government agency that has the authority to have a government official enforce statutes or regulations enforcing or implementing statutes by bringing civil lawsuits, either in an administrative tribunal (like the National Labor Relations Board, or the Securities and Exchange Commission or the hybrid case of Equal Employment Opportunity Commission proceedings) subject to eventual Article III federal court review at least on appeal, or in a court. In these enforcement actions, remedies including fines, restitution to victims of the unlawful conduct, and/or injunctive relief.

There are many academic discussions comparing the features of these two ways to address wrongful, harmful conduct in violation of the law outside the criminal justice system.

But, generally speaking, an administrative agency enforcement mechanism arises from substantive federal regulatory statutes and not from the Administrative Procedures Act which governs primarily the process by which administrative agencies adopt regulations and to a much lesser extent to how administrative tribunals are constituted.

  • I appreciate your reply ohwilleke very much. I am traveling and will loose opportunity for a few days to provide a more meaningful reply. What I am seeking is a greater understanding of recent suits against a federal agency by local and state governments and individuals using both the federal TORT and Administrative Procedures Act. Some litigation focuses more on one or the other. Proving the federal agency violated their "discretionary function" or caused an "abuse of discretion" by the federal agency appears to be the biggest challenge for the plaintiffs under both laws. More later. TU
    – Eliza
    Jan 27, 2023 at 16:25
  • Note: There is significant documentation of harm caused by the federal agency. Specific non-discretionary regulation or "mandatory" policy directives also provide some level of proof the agency is in violation of their discretionary function. Yet, the courts often default to agency deference, seemingly without considering the evidence/facts against the fed agency that would put a private citizen in prison.
    – Eliza
    Jan 27, 2023 at 16:45
  • @Eliza You cannot (successfully) sue a federal agency in tort for money damages for abusing its discretion with regard to some discretionary function in a manner that causes serious harm (unless it is a 5th Amendment taking). It is immune from liability of this kind. So there is really nothing to compare.
    – ohwilleke
    Jan 27, 2023 at 18:05

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